'The employer had no other option but to immediately remove the worker from the workplace': lawyer
The Federal Public Sector Labour Relations and Employment Board has dismissed the grievance of a former Canadian Coast Guard worker who was fired for making repeated threatening comments while on duty aboard an icebreaker ship.
The worker was hired as a deckhand by the federal department of Fisheries and Oceans (DFO) in 1997, becoming a permanent employee in 2007. He was transferred to a Coast Guard vessel, where he eventually became Chief Petty Officer/quartermaster.
The worker was at sea for weeks to months at a time, which caused friction with his family and made it difficult to resolve problems they were having. This led to significant stress for the worker, which he raised with his captain in November 2017 because it was affecting his concentration at work. There was an incident in which he made an error ordering supplies that led to a demotion, and the worker went on leave for stress-related medical reasons in January 2018.
While the worker was off work, his family stressors decreased, so he decided to return to active duty and resume his income. He returned to his ship on July 12, 2018.
During the voyage, the worker occasionally stated that he would strike co-workers who he felt had wronged him with the ship’s fire axe. A deck officer warned him that if he continued to make such comments, she would report him. Another deck officer heard these comments and also on one occasion found a label attached to the fire axe indicating that it was the worker’s.
Workplace threats
The worker left the ship as part of a crew change in August and returned for a voyage beginning on Oct. 4 with a new captain. However, the worker continued to make comments about wanting to hit other crew members and superior officers with the fire axe. Another deck officer told him to stop, but he didn’t.
On Oct. 24, the worker was reported to senior officers for his comments, which included:
- “One night you’ll come on board and everyone will have been murdered, damn it.”
- “I better take my pills instead of picking up the fire axe.”
- "The officer reported me to the second mate, for everything, the collision with the ice; it's time to get out the fire axe."
- “Tonight I will be on the officers’ bridge with my fire axe.”
- He claimed that his superiors "would not live long after retirement, because they had made so many enemies."
- He suggested that the fire axe could solve problems with colleagues.
Following consultations with medical professionals and the Royal Canadian Mounted Police, the worker was removed from the ship and sent for medical assessment in Iqaluit. Subsequent evaluations determined that his behaviour wasn’t caused by any underlying medical condition, though stressors in his personal and professional life may have influenced it.
The worker attended a fact-finding meeting and acknowledged that he had the comments that had been reported, but he intended them as sarcastic jokes. He also said that a medical condition or personal circumstances could have affected his behaviour, as he had troubles in his personal life. Other crew members testified that the comments were delivered in a monotone or serious tone and were not perceived as humourous.
Medical assessment
The worker underwent a fitness-for-duty assessment and a medical assessment and was cleared to work full-time as a deck master/quartermaster. The DFO held a pre-disciplinary hearing on July 5, 2019, at which the worker apologized for his comments and said he was aware they were inappropriate, saying that his “problems at home affected my judgment.”
The DFO proceeded with an investigation and determined that the worker’s employment should be terminated, which went forward on Aug. 16. The termination letter stated that the worker’s conduct was “a serious breach of the employer’s trust and clearly demonstrate(s) a lack of respect for others” and, given there was no medical reason for his misconduct and there were serious safety concerns, termination was appropriate.
The worker grieved his termination, arguing that his comments were sarcastic and weren’t taken seriously by those who heard them – as evidenced by the fact that no one reported him until he had been making the comments for months and superiors didn’t intervene immediately. He also said that he didn’t intend to hurt anyone and he was never told to stop making the comments, accusing the deck officers of lying about mentioning it to him.
The board found that the remarks constituted serious misconduct, warranting disciplinary action. The worker acknowledged that he made them and cited personal stress and a clean disciplinary record as mitigating factors, but these didn’t outweigh the gravity of the threats, the board said, noting the context of the misconduct in an isolated workplace with the fire axe easily accessible on the ship, easily giving the worker “the ability to carry out the threat.”
“What was really critical to the decision is that this wasn’t a singular incident, but a repeated pattern of death threats,” says Jon Pinkus, a partner with the Labour and Employment group at Samfiru Tumarkin in Toronto. “[The employer] really had no other option, and that's why the employer was able to evade what would normally be required, which is progressive discipline.”
Progressive discipline skipped
“You don't have to engage in progressive discipline in such a situation, as opposed to someone who may have made an offhand comment in frustration or as a joke, where the result could be very different,” adds Pinkus. “Especially given the repeated nature of the comments, it’s certainly credible that people would feel threatened.”
The board also noted that, despite the worker’s claim of personal stressors affecting his judgment, there was no medical evidence that reduced his culpability. He also didn’t initially express remorse, waiting until he was facing discipline to offer an apology, the board said.
The board found that the deck officers were credible in their claims that they warned the worker to stop and he said the comments in a serious tone, as they acknowledged that they should have done so sooner and had no motive to lie. In addition, the worker’s claim that no one told him to stop was unlikely, given the repetitive nature of his comments.
The board also underscored the importance of general deterrence, emphasizing that threats of violence in the workplace cannot be excused or tolerated, even if later described as jokes.
“Ultimately, you need to send a message to someone who's doing something like this - if you're making repeated death threats in an environment where those death threats are credible, this is not a situation where we can say, ‘There's a mitigating factor and this person wasn’t having a good day,’” says Pinkus. “You had people who genuinely seemed to fear for their physical wellbeing, so the employer had no other option but to immediately remove the worker from the workplace - an employee who places their employer in that predicament is not going to be entitled to have their job protected.”
Workplace safety a priority
The board dismissed the grievance and upheld the worker’s termination, noting the importance of sending a clear message regarding the zero-tolerance approach to workplace threats, particularly in environments where safety is a top consideration.
The DFO acted consistently and assertively in handling the matter, which helped support its position that it considered the worker’s misconduct to be serious, says Pinkus.
“Everything the employer did suggests that they feared for the safety of their employees and that is, in my opinion, the most important thing,” he says. “They didn’t just sit down and talk to this employee a week later and not do anything to protect employees – they showed they genuinely believed the employee’s concerns for their physical safety and the adjudicator wasn't inclined to second-guess their decision.”
When there are credible threats made in the workplace, it’s important for employers to balance the rights of employees and carefully consider the seriousness of the threats, according to Pinkus.
“Where you have a singular incident, perhaps there isn't a credible threat of violence, so the facts really matter,” he says. “But I wouldn't throw caution to the wind with for-cause terminations - I often see when an employer reads a decision like this, they say, ‘The employee said something I didn't like in the workplace and that means I can terminate for cause’ – that’s not what this decision says.”
See Bartlett v. Deputy Head (Department of Fisheries and Oceans), 2024 FPSLREB 135.
