[author: Adrian Miedema]
A mining employee who consumed alcohol and uttered threats on a picket line was not properly dismissed, as his threats were “little more than the frustrations of a troubled man who was under a great deal of personal, emotional and financial stress”, an Ontario arbitrator has held.
The employee had begun to drink alcohol upon his arrival at the picket line at 1:00 am. He made a comment to a plant security officer to the effect that he was losing his house and could not find a job and that “someone will be hurt when the smelter shows signs of smoke”. Another security officer heard the employee say that he was losing his wife, daughter and house and that he should come back and shoot everyone. The employee was given a taxi chit and sent home. Shortly afterwards, the employer dismissed him.
The arbitrator heard evidence that the grievor’s personal circumstances were very difficult: he had suffered a serous head injury a few months earlier that could have been fatal; he was having trouble sleeping and was taking medication for it; he had been drinking regularly since the incident; he was under financial stress; he and his wife were having marital problems; and shortly after his dismissal, he tried to commit suicide and was hospitalized for five days. He was under the care of a psychiatrist and treated for depression, anxiety and suicidal inclinations. At the time of the hearing, he was separated from his wife.
Arbitrator Wes Rayner noted that the “trend is now to treat threats of physical violence more seriously”. However, the employee’s picket line threats were “unfocussed” and not directed at any particular person. His statement about “shooting everyone” was the most troublesome but was said in the context of his concern about losing his wife, daughter and home and when he was most likely intoxicated from drugs and alcohol. Dismissal was therefore an excessive response.
The arbitrator therefore reinstated the employee, but on condition that he first be assessed by a medical practitioner, mutually acceptable to the employee and the company, as to whether he was fit to return to work. He must also provide a clear drug and alcohol test.
This decision could be read as a departure from a number of other recent post-Bill 168 decisions, a number of which have been discussed on occupationalhealthandsafety.com, in which courts and arbitrators upheld the dismissal of employees who made threats of violence. In this case, the employee’s difficult personal circumstances clearly made an impact on the arbitrator and appear to have convinced him that the employee was unlikely to reoffend.
Vale Canada Limited v. USWA, 2012 CanLII 51445 (Ontario Arbitrator)