Canadian Employment Law Today

CELT Sept 4 2013:celt 467.qxd 13-09-13 10:59 AM Page 4 September 4, 2013 CASE IN POINT: WRONGFUL DISMISSAL Years of service outweigh employee's serious threat Employee with 24 years of service reinstated after threatening to stab co-worker BACKGROUND Trying to stick around THREATENING to stab a co-worker and slit him open is a pretty serious thing to do and would likely result in dismissal, right? With such an emphasis on preventing workplace violence and threats — particularly in Ontario with its Bill 168 amendments to the Occupational Health and Safety Act —an employee who makes such a threat is likely to be removed from the workplace permanently. But not always. In any case involving consideration of whether there's just cause, an employee's length of service and previous disciplinary record can be mitigating factors that can make dismissal too harsh. Even if the employee threatened to stab someone. | BY JEFFREY R. SMITH | AN ONTARIO company wrongfully dismissed an employee who threatened to stab a co-worker, an arbitrator has ruled. Doug Scott, 57, was a shipper at a Guelph, Ont., plant run by Hood Packaging, a manufacturer of paper and plastic product packaging, where he had been employed since 1989. During his time with Hood, Scott had one disciplinary warning on his record. On Feb. 15, 2012, Hood notified three employees that they were being laid off. Scott was on his way to lunch when he saw a co-worker, Steven Fox, drawing sad faces on a white board. Scott thought Fox was mocking the employees who had been laid off, though Fox was apparently intending to show empathy for them. According to Fox, Scott leaned over to him and said in his ear, "If it was me losing my job I would stick a knife in you and slit you to the top." Fox, who had been stabbed in the past, said he 4 responded, "If you ever tried it I would knock you the f--- out. I would feed you (elbows) and have (a co-worker) stand over you and give you fingers." Scott, however, claimed he told Fox loudly, "Three people lost their jobs and if I was one of them I wouldn't like it" and he should clean the board. He said he didn't acknowledge any response from Fox. Threat led to confrontation Afterwards, Scott proceeded to have lunch with a co-worker and Fox told a supervisor he and another supervisor should be nearby after lunch. Later, when Scott came out of the lunchroom, Fox yelled a crude insult at him. Fox later claimed he had become more angry and upset while he thought about the comments, for both the stabbing threat and the fact Scott wouldn't admit to what he said. Scott responded with a crude comment of his own telling Fox to shut up. Scott and Fox were moving toward each other, and the supervisors came by and stepped between them. Scott claimed he was walking towards his work area and Fox was in the way and didn't want a fight. Both employees were asked to write a statement about what happened and then return to their work stations. There were no further problems that day. Fox reported he was threatened with stabbing by Scott, who was aware of his previous stabbing and knew it would intimidate him. He expressed a desire to file a harassment charge. Scott claimed he told Fox people would be upset and Fox took offence and later subjected him to "name calling, obscenities and threats." The next morning, management interviewed both employees. They each reiterated their versions of the altercation. Fox also added that Scott said if they weren't in the plant he would "kick his arse," to which Fox suggested they go outside. Another employee interviewed said Fox had mentioned at lunch that Scott had threatened to slit him with a knife. When Scott was interviewed, Hood asked a union representative to be present because it felt there was a possibility of discipline due to the severity of the threat. During the interview, Scott started out calmly but, according to the supervisor, became agitated. Scott denied making any threats and said Fox threatened that he would "get him" after work. He also suggested Fox had smoked marijuana during lunch, which made him more upset. Scott then said many others smoked the drug and there was a "pot problem" at the plant. Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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