No proportionality, no cause for termination

March 29, 2012 Christina Catenacci Employee Relations, Employment/Labour Standards, Human Resources

Manitoba’s Court of Queen’s Bench recently confirmed that a termination for cause was inappropriate, given that it was not proportional to the employee’s conduct. As a result, the employer had to pay 12 months’ severance as set out in the employment agreement regarding a termination without cause.

The employee—the general manager—had to deal with an angry production manager, his subordinate on the management team. This person refused to follow the employee’s directions and responded to the employee loudly and vociferously. Finally, it all came to a point where there was an altercation on the plant floor between the employee and the production manager. Following an angry shouting match where the production manager provoked the employee, the employee pushed the subordinate with two hands to the point where the subordinate fell to the floor and broke his glasses. He did this in front of at least five employees.

How did the employer handle the situation? The employer suspended the angry production manager for a week and forced him to take an anger management course, but terminated the general manager for cause claiming violence could not be tolerated. The employer did this even though its investigation did not conclude who even started the fight.

Image: Stuart Miles / FreeDigitalPhotos.net

The employee launched a wrongful dismissal action, and argued that there was evidence that he was involved in a heat-of-the moment defence push with open hands against a belligerent, angry and insubordinate employee of comparable size. He won.

The Court found that it was the angry production manager who started the fight when he ran up to the employee, challenged his authority, swore at him and poked his finger into the employee’s chest. The employee then pushed the production manager away from him and the production manager fell to the floor after losing his balance.

Terminating the employee for cause was an inappropriate response. In fact, case law coming from the Supreme Court of Canada clearly confirms that a court has to apply the principle of proportionality. This means that an effective balance has to be struck between the severity of an employee’s misconduct and the sanction imposed, while considering the sense of identity and self-worth individuals frequently derive from their employment.

In this case, when looking at the context and applying the principle of proportionality, it was clear that a termination for cause was inappropriate. Thus, the employee was entitled to termination notice in the amount of 12 months in accordance with the original agreement made when he was asked to work with the employer.

What does this mean? Discipline must be reasonable and must make sense in the circumstances. The principle of proportionality must be applied.

Employers must conduct a thorough investigation following an altercation and understand what happened before making any decisions.

Subsequently, employers must apply reasonable discipline, taking into account the context, proportionality, and any relevant progressive discipline policies in effect.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more

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