Written on behalf of Peter McSherry
In the case of Harriott v 1145365 Ontario Ltd., 2015 CanLII 679586, the Ontario Labour Relations Board (OLRB) decided that context is an important factor in determining whether a comment which may be threatening on its face is in fact cause for dismissal under the Employment Standards Act, 2000, S.O. 2000, c.41. In this case, a worker was fired for making a comment that his employer considered to be “workplace violence”.
Mr. Harriott, a machinist, got into an argument with a co-worker over a tool that Mr. Harriott believed belonged to him. The co-worker told Mr. Harriot to “F— off, I don’t give a f—.” The two workers began to argue and another worker intervened and told them to stop. Although Mr. Harriott testified that he did not touch or threaten to touch his co-worker, the co-worker said that if Mr. Harriott hit him, he would be “put away for the rest of [his] life”. In response to this, Mr. Harriott chuckled and said, “I guess I’d have to kill you.” The confrontation lasted approximately five minutes.
Later that evening, the company called the police. Two officers attended the workplace and confronted Mr. Harriott about his comment. He was assured that the company would not press charges, but police escorted him off the premises. The next day, the company fired Mr. Harriott and returned the tool to him.
The OLRB held that although the comment “I’d have to kill you” was serious, it did not constitute wilful misconduct. The OLRB emphasized the importance of the context of the comment. Mr. Harriott was provoked by the co-worker who refused to return the tool and then swore at him. Mr. Harriott had chuckled when he said it, he changed the subject of the conversation afterwards, and he then went back to work. Because the company had allowed him to return to work, the OLRB found that it did not believe Mr. Harriott posed an ongoing threat. Finally, Mr. Harriott had eight years of service to the company and there was no history of misconduct resulting in written or verbal warnings. In this context, Mr. Harriott’s comment could not be reasonably interpreted as a threat, and therefore did not constitute wilful misconduct. Mr. Harriott was entitled to his termination pay.
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To read the full decision, click here.