Angry employee digs hole with death threat

Worker claimed he was making a point about co-worker's dangerous activities
|Canadian Employment Law Today|Last Updated: 07/31/2012

This instalment of You Make the Call features an employee who was fired for making a death threat against a co-worker.

Ken Keen, 50, was an excavator operator for Coquitlam Sand and Gravel (CSG) in Coquitlam, B.C. In two years of employment with CSG, Keen had received a written warning and a three-day suspension for an occasion where he operated equipment improperly.

Keen had issues with a loader operator whom he felt had often driven the loader too fast and too close to his excavator. Keen had complained to the leadhands about it but management determined the accusations were groundless. Keen also didn’t file any incident reports or raised any concerns in safety meetings, as was recommended by company policy.

In July 2010, Keen went on sick leave for three weeks. On the Friday of his first week back, he arrived five hours before his shift so he could meet with the assistant plant manager to discuss his concerns. After discussing other issues, Keen complained about the loader operator’s unsafe operation of the loader. The assistant manager said he had observed the loader many times and hadn’t seen any dangerous activities, but Keen became agitated. Keen said the loader operator had been watching him when they were on the same shift because he wanted his job and reiterated his complaints about driving the loader too fast and close to him.

The manager and the load operator joined the meeting and the loader operator denied he wanted Keen’s job or that he had stopped to watch Keen at work. The manager expressed hope that they had cleared things up, but Keen, who was getting emotional, said “we agree to disagree.” Then, according to the loader operator, Keen pointed at him and said “I could kill you six times over.” The manager and assistant manager reported that Keen said “I could have killed you six times by now.” However, Keen claimed he said “I could have almost killed you six times,” referring to the close calls he was complaining about.

After the comment, the assistant manager told Keen the comment was inappropriate and asked him to leave the plant. Keen was escorted out of the office and later told not to come to work that evening.

The managers felt Keen’s tone and demeanor indicated he meant the statement as a threat. The next Monday, the company decided to terminate Keen’s employment for uttering a verbal threat against another employee.

Keen agreed that his outburst was wrong and the way he said it could be interpreted as a threat. However, he didn’t attempt to clarify his intention for the remarks and didn’t apologize. He also denied pointing a finger at the loader operator.

You Make the Call

Did the company have just cause to dismiss Keen?
OR
Was dismissal too harsh?

If you said the company had just cause for dismissal, you’re right. The arbitrator found the other three people in the room were consistent enough that their versions of what Keen said were more credible than Keen’s, particularly since Keen admitted the way he said it could be seen as threatening. The discrepancy between Keen’s account and the others made it likely that Keen was tailoring his recollection to minimize the seriousness of his comment to the loader operator.

“The words used by (Keen) reasonably bear the inference that what (he) meant was that he could have killed (the loader operator) on a number of occasions in the past and could do so in the future,” said the arbitrator.

The arbitrator also pointed out that Keen was agitated and emotional, so it was likely he intended to “threaten and intimidate,” rather than explain his concerns. Additionally, Keen made no attempt to clarify his remark or apologize, despite the fact the assistant manager told him it was inappropriate and escorted him out of the plant.

The arbitrator upheld the termination, finding CSG had just cause to dismiss Keen for making threats without any apparent remorse. See Lafarge Canada v. Teamsters, Local No. 213, 2011 CarswellBC 3534 (B.C. Arb. Bd.).