What kind of discipline should you impose if one of your workers issue a threat to a supervisor or co-worker? The answer depends on how real the threat actually is. If the statement is just the exaggerated rantings of a frustrated worker, termination becomes problematic. Instead, a stern warning may be the appropriate response. But if the statement is a serious threat of violence, you not only can but also must terminate the worker immediately to protect others at your workplace.
This bright-line rule is easy to state but difficult to apply. In the real world, it’s usually hard to tell when a violent threat is serious and when it’s just hyperbole. And as the safety coordinator, you’re likely to be called upon to help management make a judgment—and do it fast. This article will show you how.
Threats of Violence as Cause for Termination
Few would dispute that an actual or attempted act of violence by a worker in the workplace is just cause for termination. So it would be hard for a worker who punches a co-worker or tries to run over a supervisor with a forklift to claim he was wrongfully terminated. However, unlike physical acts of violence, verbal threats leave room for ambiguity. Generally, making a violent threat is just cause if the threat is:
The mere utterance of such a threat is grounds for immediate termination; you don’t have to wait to see if the worker actually follows through to fire him. But not all violent threats rise to this level. Many if not most of the threats workers make on the job aren’t meant to be taken literally. Although such behavior might be worthy of discipline, immediate termination might be an overreaction. So employers need to decide the seriousness of the threat to determine how to react to it.
HOW TO EVALUATE THREAT
To evaluate whether a violent threat is cause for termination, you must consider not only what the worker said but also all of the circumstances under which the threat was made. There are 5 questions you should ask:
1. What Did the Worker Actually Say?
Although it’s not the whole story, what the worker actually said is a critical factor in determining the seriousness of a threat. For example, the statement, “I’m going to kill you,” could be understood as an actual threat to kill a person or as hyperbole, posturing, blowing off steam or just plain horsing around.
Threatening words may assume a more menacing quality when they’re accompanied by details about the manner in which the worker intends to carry out the threat or the weapon he plans to use. It’s the details that turn a vague expression such as “I’m going to kill you” into something that sounds more like an expression of intent, such as, “I’m going to beat you to death with this crowbar.” Threats of violence also tend to be more disturbing when they’re directed at members of the victim’s family. Which sounds more threatening to you: “I’m going to shoot you” or “I’m going to shoot your 5-year-old boy, Alex”?
2. Were Verbal Threats Accompanied By Threatening Gestures?
Words are one thing; those same words may become something altogether different when they’re accompanied by gestures. For example, the words, “I’m going to crush your skull” feel more like a credible threat of violence when the worker who utters them is also waving a wrench.
3. What Was the Worker’s Intent?
Let’s return to the example of “I’m going to kill you.” You must determine what was on the worker’s mind when he uttered those words. There are several possibilities:
He meant it literally. If the threat literally describes the worker’s intentions, uttering it is just cause for immediate dismissal. In other words, “I’m going to kill you” can be just cause when the worker literally means to kill the person. Of course, workers facing disciplinary consequences for threats are bound to claim that they didn’t mean what they said. And maybe they didn’t. But that argument won’t necessarily get them off the hook.
He meant to intimidate. One possibility is that the worker didn’t mean the words literally but did intend to intimidate the victim. Although in terms of morals, using threats to intimidate is a notch below expressing an actual intent to harm, as a matter of law, it’s generally enough to constitute cause for termination.
He didn’t mean to intimidate but did. Even if workers didn’t actually mean to bully or intimidate, you may still have just cause if intimidation was the consequence of their behavior. Courts will apply an objective standard. In other words, they’ll ask not whether the worker actually intended to intimidate but whether a reasonable person would have expected such behavior to result in intimidation.
4. Did the Worker Have a Track Record of Violence?
A worker’s unblemished 30-year track record is no defense if the worker suddenly makes a genuine and credible threat of violence to someone in the workplace. But if the threat falls in the gray area between serious and hyperbole, the worker’s track record may become of critical importance. Courts generally give workers who have never engaged in violence or any other offense worthy of discipline the benefit of the doubt.
In contrast, workers who make threats will get less slack if they do have a history of violence or of losing their temper on the job. Even discipline for problems unrelated to violence, such as chronic absenteeism or failing to follow company policy, can weigh against a worker in determining if an ambiguous threat creates just cause. In such cases, the threat gets lumped together with all of the worker’s other previous offenses as proof that he’s a troublemaker and often represents the final straw justifying dismissal.
Example: A court ruled that Nabisco had just cause to fire a worker of 11 years when he told a superior, “If I lose my job, I’ll shoot you.” The worker had received numerous warnings about his absenteeism and other violations of corporate policy. He had also been involved in two incidents in which he was accused of assaulting his co-worker. So his violent threat to the supervisor was the final straw [McEwan v. Nabisco Ltd.].
5. How Did the Victim Perceive the Threat?
When dealing with violent threats, you must consider not only the delivery but also the perception of the message. To assess the victim’s perceptions, you need to consider the characteristics of both parties involved—the threatener and the threatened—including their:
Example: A supervisor, a large man with a loud voice, bullied a mentally frail female worker over an extended period. He made threats like “I’ll bash your head in,” while brandishing a hammer for effect. The worker eventually suffered a mental collapse and sued the employer for mental distress. The court ruled that the supervisor’s conduct was “outrageous” and ordered the employer to pay her $40,000 in damages [Boothman v. Canada].
In evaluating the victims’ perceptions, you need to consider not only their physical characteristics but also how they actually responded to the threat. Did the victim really believe the threat or just shrug it off?
Workplace violence is a serious safety concern. And the obligation to prevent workplace violence is real. But properly responding to workplace threats made by workers is a dilemma. If the threat isn’t serious, immediate termination will probably be considered an overreaction and make your company vulnerable to grievances and damage awards. If, on the other hand, the threat is serious and you don’t fire the worker, you expose your other workers to the risk of violence. The only way to resolve the dilemma is to avoid knee-jerk reactions, determine what happened and make the best possible judgment according to all of the circumstances.