Every month I have the benefit of drafting a quick blog on great employment law topics. A case that I very recently read, which is probably the best employment case I have ever read, catalyzed my interest in drafting a quick primer on the law of just cause. In the case of Barton v. Rona Ontario Inc. (2012 ONSC 3809) the plaintiff Kerry Barton was an assistant store manager at Rona in Barrie. He managed approximately 140 employees. One of the employees was wheelchair-bound.
In April of 2009, there was a computerized training program that was scheduled for training at the Barrie Rona store. The wheelchair-bound employee, Mr. Malmstrom wanted to attend and the management team wanted to accommodate him. The problem was that the training centre was situated on the second floor and was not readily accessible by individuals in wheelchairs. Driven by their desire to accommodate Mr. Malmstrom, a workplace colleague, Gordon Stirk, thought that one way to do that would be to use an order picker truck and lift Mr. Malmstrom in his wheelchair on a skid to the second floor. The manoeuvre was done, Mr. Malmstrom attended the meeting and he was brought down using the same method in the afternoon.
An operations manager at Rona, third command at the store, thought the incident involved clear breaches of Rona’s safety rules, reported the incident to the human resources advisor for Rona, an investigation was carried out and a report was provided to her superiors at the Rona head office who in turn did a fresh investigation. Following this investigation, Rona terminated Mr. Barton and Mr. Stirk for their roles in the incident. One of the questions asked, amongst other things, was whether or not Rona had just cause to terminate Mr. Barton’s employment.
Just cause is an express or implied term for all contracts of employment. An employer may terminate its employees for just cause, at any time, without being obligated to give reasonable notice or similar statutory payments. Ontario Regulation 288/01 (Termination and Severance of Employment) describes which employees are not entitled to notice of termination or termination pay.
If an employee is guilty of any type of serious misconduct, habitual neglect of duty, incompetence or conduct incompatible with interests or business of the employer, the employer’s right to summarily dismiss is recognized (R v. Arthurs ex. P.Port Arthur Shipping Co. (1967) 62 (2d) 342 (ONT. C.A.) reversed on other grounds  S.C.R. 85 (S.C.C)). The onus is always on the employer to justify dismissing an employee for cause.
In deciding whether or not an employee deserved to be terminated by law, employers are to consider several issues. For example, did the employer condone the behaviour of the employee? Was there any failure to warn an employee that the alleged behaviour is not appropriate for the workplace? An employer simply cannot fail to communicate its objection regarding an employee’s unacceptable behaviour and then terminate him. An employer should allow an employee an opportunity to correct his or her behaviour and to improve his or her performance. If the employee is unable to do so, and repeats the same misconduct over and over, then termination for cause can most likely be justified. It is also trite to say that an employer is not always required to give warning in every case. If there is very serious misconduct alleged, a warning may not be necessary. The same goes for habitual neglect of duty, incompetence or conduct incompatible with the interests or business of the employer.
Some grounds for summary dismissal are insubordination, conflict of interest, chronic absenteeism, chronic lateness, dishonesty, theft, fraud, intoxication or addiction if it risks the lives or safety of others, being disruptive or sexually assaulting an employee. In essence, the grounds of summary dismissal really depend on the factual circumstances of each case.
In Barton v. Rona, the Judge referred to the case of McKinley v. B.C. Tel which was a Supreme Court of Canada case that set out the framework for analyzing whether an employee’s wrongful act would be found to constitute just cause for dismissal. In short, the Supreme Court, in that case, concluded that the principle of proportionality requires an effective balance to be struck between the severity of an employee’s misconduct and the sanction imposed.
Rona argued that its safety expectations were communicated directly to Mr. Barton as a manager. Rona did expect him to administer, faithfully, all safety expectations within his managerial role. They argued that he failed to do so, and that failure breached his employment contract entitling Rona to dismiss him. They argued that it was Mr. Baron’s responsibility to enforce compliance with Rona’s health and safety rule and to promote safe practices by leading by example.
Further, they submitted that Mr. Barton’s actions possibly exposed Rona to liability under the Occupational Health and Safety Act. With this, Rona relied on authoritative cases to support their position.
Despite arguments, the Judge found that the Court does not consider the totality of the business reasons why an employer might terminate an employee. Rather, it must focus on the specific acts of that employee’s misconduct and whether those, in and of themselves, are capable of justifying termination. The Judge found that Mr. Barton’s conduct was indeed serious but at the same time his performance appraisals were good, he had no disciplinary record in existence, he did at one point try to ineffectually prevent the lift albeit not the decent. In questioning the principle of proportionality, the Judge noted that the McKinley case required him to consider whether the termination was the effective balance to be struck between the severity of Mr. Barton’s misconduct and the sanction imposed.
Ultimately, the judge found that Mr. Barton’s specific acts of misconduct were not severe enough to warrant his dismissal. This is a situation in which a stern warning to Mr. Barton to never again permit a safety infraction by an employee would have been sufficient to ensure that neither the incident nor another one like it would ever occur under his watch. Specifically, he notes “the was nothing in Mr. Barton’s excellent work record to suggest that he would not be amenable to such discipline or that he would repeat such misconduct in the future”.
Ultimately, Judge Lauwers did not find fault for terminating Mr. Barton’s employment for its own business reasons but doing so is a breach of contract which Mr. Barton was entitled to damages for wrongful dismissal.
In this case, the failure to provide a warning to Mr. Barton was indeed fatal to a finding of just cause for dismissal. The judge suggested that the option of discipline short of termination should have in fact been utilized.
In the heat of the moment, it is very difficult to make a proper analysis of the principle of proportionality if an employer believes that an employee’s misconduct is so severe. Permitting a safety infraction such as the example of Mr. Barton, as Judge Lauwers noted, was in fact quite severe but regardless, when assessing the misconduct it was not severe enough to cause him to lose his job. For readers concerned about damages, Mr. Barton was awarded ten months in lieu of notice which equated to $58,900.00. He was denied aggravated damages.
Matt Lalande is a personal injury and employment litigator that can be reached through his website at www.hamiltonlawyers.com
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