An arbitrator has reduced the suspension of a worker who said she “could kill” her supervisor because of a staff scheduling problem.
Janice O’Brien was an employee of Transit Windsor and had been on the job for 18 years. In November 2004 she was selling tickets at a booth in Windsor Arena, a new location the company had just opened. She worked on the Nov. 1 and Nov. 2, when demand for transit passes and tickets was particularly heavy. In addition to selling transit tickets she sold tickets for arena events and answered telephone calls and she was training another employee. The new location was extremely busy.
On the second day at the arena, she made the inappropriate comment about her supervisor and an employee reported that, within hearing range of the public, O’Brien said: “If I had a gun, I would shoot them all.” The company invoked its policies on harassment and workplace violence and violence in the workplace and suspended her for eight-and-a-half days. It said O’Brien had been involved in a similar incident in 2001, that she’d already been given an opportunity to seek help for anger management issues and that her employment might have been terminated had it not been for her good behaviour since then.
Transit Windsor acknowledged O’Brien had been placed in a stressful situation and the company hadn’t expected the volume of business at the arena, where she was also required to sell items she’d never been exposed to. These were “teething troubles” at a new venue, said the company, but did not justify the threats made to the supervisor.
O’Brien grieved the termination through her union. It argued she was under severe stress brought about by an acute staff shortage, and that if the new venue was staffed appropriately then the situation wouldn’t have arisen.
More than once she’d told her employer of the need for assistance, which wasn’t forthcoming, the union said. So the company knew O’Brien was having serious difficulties handling the situation. Since it knew of O’Brien’s previous anger management problem it ought to have known she was being placed under severe stress. It was to O’Brien’s credit that she did not leave her post and stayed on to serve the public throughout the stressful time, the union argued. Her words were a cry for help and not a true threat to do harm, it said.
The union also argued O’Brien had been diagnosed with clinical depression, which was aggravated by the stress. So there was a medical explanation for her behaviour. The arbitrator noted, however, that she’d never reported this disability to her employer which, given the 2001 incident, she was obligated to do. Therefore she could not rely on it to claim the company should have acted differently than it did.
The arbitrator ruled O’Brien had, “an unhealthy habit of using the strongest, most injurious expressions when she is upset by occurrences at the workplace.” This was culpable conduct that cannot be attributed to clinical depression and O’Brien, “must stop this behaviour once and for all,” it said.
The arbitrator said O’Brien knew her conduct was inappropriate and worthy of discipline because, when she met with a superior shortly after the incident, her first question was: “How long am I going to be suspended for?”
But even though what she said was “a wholly inappropriate expression of displeasure,” it was not a threat to the life of her supervisor, the arbitrator said.
“While I am satisfied that (O’Brien) stated that she ‘could kill’ (her supervisor) for the scheduling problems, she did not say that she was ‘going to kill (him)’. There is a world of difference between the two, one is a wholly inappropriate expression of displeasure, the other is a threat to the life of (the supervisor),” the arbitrator said.
So while O’Brien was guilty of culpable conduct, she did not deserve such a lengthy suspension, said the arbitrator. The company had essentially suspended her for eight-and-a-half days because this was her second offence. But under the collective agreement with the union there was a “sunset clause” whereby disciplinary incidents were erased from an employee’s record after 24 months.
The company was thus barred from considering lapsed disciplinary incidents when formulating penalties, it concluded in reducing O’Brien’s suspension to three days.
For more information see:
Transit Windsor v. A.T.U.
, Local 616, 2005 CarswellOnt 7870 (Ont. Arb. Bd.)
Transit Windsor’s workplace violence policy
During the hearing, Transit Windsor introduced its policy on workplace harassment into evidence. One bulletin, entitled “Violence in the Workplace,” defines violence as:
“Any direct or indirect act of aggression, either verbal, physical, written, or through gestures, that is perceived to be threatening or inappropriate between an employee and another Transit Windsor employee (either union or non union/management), between an employee and a patron of the service, or any person or persons which an employee has contact with while on duty, or perceived to be on duty, with Windsor Transit.”
The bulletin also served as a notification to employees to cease and desist from any acts of violence as described and that any employee found to be in breach of the policy could expect to be dealt with severely; serious violations would result in immediate discharge from employment.
The discipline letter
Below is the text of the discipline letter written by Transit Windsor to O’Brien:
November 2, 2004.
Ms. Janice O'Brien
C/o Transit Windsor
You attended a meeting in my office on November 2nd to discuss your actions and comments made on November 1 and 2, 2004. Also in attendance was your union representative, Ed Janisse.
I began the meeting by telling you comments that have been reported to me over the last two days. You told a supervisor that you could kill Ken McLaughlin for not scheduling more help. You commented later to other staff and within hearing range of the public, "if I had a gun, I would shoot them all". These comments are considered violence in the workplace.
We discussed that the arena can be very busy at times and we are learning as we go along when and for how long we can expect large volume of sales. During these times we need to remain calm and professional in the public eye and with our fellow employees. Your actions were both unprofessional and inappropriate.
I explained that Transit Windsor has a zero tolerance policy in respect to violence in the workplace. You acknowledged making the comments about Ken McLaughlin but denied making the comment about having the gun and shooting them all. Another staff member reported that comment to us.
This is not the first time you have exhibited this type of behaviour. Based on your record and severity of the incident you will be suspended without pay effective today, Tuesday, November 2, 2004 until the end of day on Friday November 12, 2004 for a total of 8.5 days. You will also be required to attend the EAP program to learn coping skills to prevent this type of incident from happening in the future. You will need to provide proof of your attendance at the sessions prior to your return to work on Monday, November 15, 2004. If you require the assistance in making arrangements with the EAP carrier please contact the Director of Administration.
Janice, I must warn you that any further incidents of this nature will result in termination as per our Harassment & Workplace Violence Policy. I sincerely hope that you will be able to change your behaviour and learn coping techniques to deal with issues that arise in the course of your employment. If there is anything that I or anyone else can do to assist you in being successful in dealing with these types of issues please feel free to bring those issues forward.
Acting Director of Operations.
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