A worker's comment that "I guess I'd have to kill you" was clearly inappropriate but did not constitute wilful misconduct under the Ontario Employment Standards Act, the Ontario Labour Relations Board has held. The case shows that not every comment that is, on its face, threatening will constitute just cause for dismissal. Context is important.

The worker, a machinist, got into an argument with a coworker whom he thought had taken one of his tools. The coworker snapped at him and told him to "f— off, I don't give a f—". Another worker stepped between them and told them to stop. The coworker said that if the worker hit him, he would be "put away for the rest of your life". The worker then chuckled and said, ‎"I guess I'd have to kill you". The confrontation lasted about five minutes. The worker returned to work.

Apparently the company called the police. Two officers attended at the workplace and confronted the worker about his comment. The company assured the worker that it would not press charges, but had the police escort him off the premises. The next day, the company fired him, and returned his tool to him at the same time.

The worker filed a complaint with the Ontario Ministry of Labour claiming his eight weeks of ESA termination pay. The company argued that he was disentitled because he was fired for wilful misconduct. An Employment Standards Officer decided that the worker was dismissed for wilful misconduct and thus not entitled to ESA termination pay. The employee challenged that decision at the Ontario Labour Relations Board.

The OLRB held that the comment was very serious. However, it did not constitute wilful ‎misconduct. Firstly, the worker was provoked by the coworker refusing to return his tool and then swearing at him. Secondly, in the context, it was not reasonable to interpret the comment as a viable threat. The worker had chuckled as he said it. He changed the subject of the conversation afterwards and then went back to work, putting an end to the confrontation. The company had let him go back to work, suggesting that the company did not believe that he posed an ongoing threat. Thirdly, the worker had eight years of service and there was no evidence of any misconduct justifying any written or verbal warnings.

As such, the comment did not constitute wilful misconduct under the ESA, and the worker was entitled to his ESA termination pay.

Harriott v 1145365 Ontario Ltd., 2015 CanLII 79586 (ON LRB)

For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com

About Dentons

Dentons is a global firm driven to provide you with the competitive edge in an increasingly complex and interconnected marketplace. We were formed by the March 2013 combination of international law firm Salans LLP, Canadian law firm Fraser Milner Casgrain LLP (FMC) and international law firm SNR Denton.

Dentons is built on the solid foundations of three highly regarded law firms. Each built its outstanding reputation and valued clientele by responding to the local, regional and national needs of a broad spectrum of clients of all sizes – individuals; entrepreneurs; small businesses and start-ups; local, regional and national governments and government agencies; and mid-sized and larger private and public corporations, including international and global entities.

Now clients benefit from more than 2,500 lawyers and professionals in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the UK and the US who are committed to challenging the status quo to offer creative, actionable business and legal solutions.

Learn more at www.dentons.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.