Workplace violence, as defined under the Ontario Occupational Health and Safety Act, includes not only physical violence but also statements or behaviour that can be interpreted as threats of violence. The Act further imposes an obligation on employers to take every precaution reasonable in the circumstances for the protection of a worker. It should come as no surprise, therefore, that making threats of violence in the workplace may constitute just cause for dismissal. This holds true not only in Ontario but elsewhere in Canada, even in the federal context. The Canada Labour Code, for example, strictly prohibits workplace violence.
For one banking employee, this lesson was learned the hard way.
Awuah v. Bank of Nova Scotia: The Facts
The employee in this case was a rather disgruntled bank employee. He was very unhappy with his job – he did not like the customers, the Branch Manager, or his direct supervisor. He made little effort to hide the fact. He was a little too candid in one of his conversations with a co-worker. In discussing his work with the co-worker, the employee allegedly stated: “I am so mad right now, I could just shoot someone.” He doubled down on the statement, further adding: “I am serious, if I had a gun right now I would shoot someone, I would shoot everyone.”
His co-worker took these comments very seriously. They recorded in writing what the employee said and emailed the conversation to their manager. The employee was subsequently suspended without pay and told not to come in to work. The police were contacted.
The employee argued that he did not make the statements attributed to him. The police, after interviewing him, determined that he was not a threat. However, this was not enough to save the employee’s job. He was ultimately fired for cause as a result of his comments. He did not return his keys, so it became necessary to re-key the entire office. Clearly, they continued to believe the employee posed a genuine risk. In the Bank’s view, “threats of gun-related violence [were] among the most extreme forms of threat and the Bank has an obligation to its employees and customers to take all necessary steps to prevent such conduct.” In the circumstances, no form of progressive discipline was required.
The employee, who denied ever making such threatening statements, sought a finding that he was unjustly dismissed and asked that he be reinstated.
Was the Employee Unjustly Dismissed?
The burden of proof lied with the Bank, which must prove it had just cause to discipline the employee and that termination was an appropriate discipline. This really depended on two things: had the employee made the threatening comments, and if so, was termination warranted in all the circumstances?
There was conflicting evidence over whether or not the threatening comments were made. The employee said they were not, the co-worker said that they were. It was his word against hers. In these situations, the credibility of the witness must be carefully examined. The co-worker was the only witness to the alleged statements. She observed the employee’s tone and demeanour and was alarmed by what he said. She did not believe he was joking. Rather, she believed his anger was very real. The adjudicator found her evidence compelling for a number of reasons:
- There was no dispute the employee was dissatisfied with his job at the Bank;
- There was no dispute the employee and the co-worker worked in adjacent offices and regularly consulted one another on client matters;
- The normalcy of the typical business relationship between the employee and co-worker was completely at odds with a level of animosity so intense that she would falsely accuse him of threatening to shoot others. The evidence of their relationship suggested there was trust and respect between them;
- The co-worker’s recollection of the conversation was likely accurate because she had been alarmed by what he said and wrote out the conversation while it was fresh in her mind;
- The co-worker was a successful bank employee, early in a promising career, who had nothing to gain from falsely accusing a junior colleague of threatening violence.
Based on the above, the employee’s claim that the co-worker made up the threatening statements was “impossible to accept.” For that reason, it was held that the employee had indeed made the threatening comments attributed to him.
Was his termination an appropriate penalty, in light of the fact he made such statements? The employee was aware that his comments were contrary to the Banks’ policies on preventing violence in the workplace and he was aware that misconduct of this nature could lead to immediate dismissal. The employee failed to recognize the seriousness of this type of conduct. This did not bode well for his rehabilitative potential. Further, he was not honest when giving evidence at the hearing. His dishonesty raised doubts as to whether the trust necessary for a viable employment relationship could be re-established.
Based on all the circumstances, his claim of unjust dismissal was denied.