“I guess I’d have to kill you” remark could not reasonably have been interpreted as a “viable threat”: fired worker entitled to ESA termination pay

A worker’s comment that “I guess I’d have to kill you” was clearly inappropriate but did not constitute wilful misconduct under the Ontario Employment Standards Act, the Ontario Labour Relations Board has held.  The case shows that not every comment that is, on its face, threatening will constitute just cause for dismissal. Context is important.

The worker, a machinist, got into an argument with a coworker whom he thought had taken one of his tools.   The coworker snapped at him and told him to “f— off, I don’t give a f—“.  Another worker stepped between them and told them to stop. The coworker said that if the worker hit him, he would be “put away for the rest of your life”.   The worker then chuckled and said,  ‎”I guess I’d have to kill you”. The confrontation lasted about five minutes.   The worker returned to work.

Apparently the company called the police. Two officers attended at the workplace and confronted the worker about his comment.   The company assured the worker that it would not press charges, but had the police escort him off the premises.   The next day, the company fired him, and returned his tool to him at the same time.

The worker filed a complaint with the Ontario Ministry of Labour claiming his eight weeks of ESA termination pay.   The company argued that he was disentitled because he was fired for wilful misconduct.  An Employment Standards Officer decided that the worker was dismissed for wilful misconduct and thus not entitled to ESA termination pay. The employee challenged that decision at the Ontario Labour Relations Board.

The OLRB held that the comment was very serious. However, it did not constitute wilful ‎misconduct.   Firstly, the worker was provoked by the coworker refusing to return his tool and then swearing at him. Secondly, in the context, it was not reasonable to interpret the comment as a viable threat. The worker had chuckled as he said it. He changed the subject of the conversation afterwards and then went back to work, putting an end to the confrontation.  The company had let him go back to work, suggesting that the company did not believe that he posed an ongoing threat. Thirdly, the worker had eight years of service and there was no evidence of any misconduct justifying any written or verbal warnings.

As such, the comment did not constitute wilful misconduct under the ESA, and the worker was entitled to his ESA termination pay.

Harriott v 1145365 Ontario Ltd., 2015 CanLII 79586 (ON LRB)


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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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