The case of the 'joking choking'

Hawaiian worker fired, denied employment insurance benefits after jokingly choking a co-worker
|Canadian Employment Law Today

A worker who was fired for jokingly strangling a co-worker is not eligible for employment insurance benefits, the Hawaii Supreme Court has ruled.

Susan Medeiros had been employed at the Hilo Hawaiian hotel for 22 years as a hostess. She was fired in August 2000, after she placed her hands around a co-worker’s throat and jokingly shook her for about five seconds.

The co-worker she strangled was dissatisfied with the company’s policy around work scheduling. The co-worker complained about the policy to a superior and the policy was changed. As a result of the policy change, many employees’ schedules changed, including that of Medeiros.

On the morning of July 30, 2000, when the schedules changed, Medeiros came up behind her co-worker, put her hands around her neck, shook her lightly and said, “it’s all because of you.”

The co-worker was shocked because she had not seen Medeiros approaching her and was offended because she did not think she should be touched in that manner. She wasn’t actually afraid of being hurt. The co-worker and Medeiros had known each other for about nine years and were on good terms and joked around with one another before the incident.

But at the end of her shift, the co-worker reported the incident to her supervisor, the HR manager and the general manager.

The company’s violence policy

The three managers met and discussed the matter in light of the company’s zero tolerance for violence policy. The policy, which was distributed to employees in 1998, said:

“(Employer) has zero tolerance for violence in the workplace. Violence is defined to include but is not limited to: physically harming another, shoving, pushing, harassment, verbal or physical intimidation, coercion, brandishing weapons, and/or threats or talk of violence. Workplace is defined to include but is not limited to being on company premises, company time or company business. No talk of violence, including joking about violence, will be tolerated.”

The managers said the policy should be applied to Medeiros in this case and she was suspended pending an investigation. The co-worker was asked to make a written statement, which she did.

In that statement she said she was in shock and very upset after the choking incident.

“To me, anytime someone places two hands or even one hand on another person’s neck or throat area, the sole intent of that aggressive behaviour is definitely to choke or even hang that person up,” she said. “If she was so upset with the changes and had a problem, I feel she should have taken the time to talk personally with you and our supervisors regarding her concerns.”

The head office reviewed the facts of the case and said there are no exceptions to the zero-tolerance policy and Medeiros should be discharged.

Employment insurance benefits denied

Medeiros filed for employment insurance benefits, but was denied. The state said because Medeiros was fired for misconduct, she was not eligible for benefits. She filed a number of appeals, but was consistently denied benefits.

The case eventually ended up before the state’s Supreme Court. The Supreme Court agreed with earlier rejections of her claim.

It said Medeiros “knew or should have known that her job was in jeopardy” if she violated the zero-tolerance policy regarding violence in the workplace.

“Medeiros consciously disregarded that risk when she approached her co-worker from behind, placing her hands around her co-worker’s neck and shaking her,” the court said. “In its best light, Medeiros’s conduct constituted a ‘joke about violence,’ which conduct was in violation of the employer’s zero tolerance for violence in the workplace policy.”

The court said her conduct showed a “willful or wanton disregard” of the employer’s interests in having a violence-free workplace and was in deliberate disregard of the standards of behaviour which the employer had a right to expect of an employee.

“As such, Medeiros’s conduct constituted misconduct connect with work,” the court said.

Case has a huge impact on employment insurance benefits: Lawyer

David Lawton, who served as the Medeiros’s lawyer, said the ruling has huge implications for workers trying to collect employment insurance benefits in Hawaii.

“Everyone’s ability to qualify for unemployment benefits is narrowed by this decision,” Lawton was quoted as saying on MSNBC.com. “The bar has been raised.”

For more information see:

Medeiros v. Hawaii Department of Labor and Industrial Relations

, Decision No. 24318 of the Supreme Court of the State of Hawaii (Decided Sept. 1, 2005)

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