Mike Majewski’s profane outburst at his co-worker John Maracle was not sufficient cause for termination on its own or as a cumulative event. On January 21, 2015, Ontario’s Small Claims Court made the decision—for the second time—that the employer wrongfully dismissed Majewski, after the Appeal Court ordered the lower court to review Majewski’s case.
Casino ‘not a church’
Majewski was a card dealer at a casino in Niagara Falls for eight years before the events that led to his termination. The well liked man had become a good dealer, making few mistakes and occasionally working the VIP room.
Despite a clear code of conduct at the casino, swearing was common among dealers and management, although generally kept to the “back of the house” employee areas. Some players were rude, aggressive and abusive, cursing and even occasionally spitting at the dealers. The casino “was not a church” as a former co-worker testified.
Another former colleague testified:
language was rather florid, political correctness seeming going out the door once players walked into the casino. On more than one occasion he remarked by the time he left he could name a female body part in ten different languages. He could expect to be sworn at hourly, players seemingly thinking the dealers got their money.
Past behaviour ‘ill-advised’
Majewski had five reprimands on his record.
- November 2000: Verbal warning for absences on Jan. 21, Sept. 10 and Nov. 4, 2000
- April 2001: One-day suspension for losing his temper in break room
- July 2001: One-day suspension for inappropriate comments to guests, profane language in front of guests and associates
- November 2003: Verbal warning for verbal abuse of an employee who was acting as a referee in a corporate hockey game in which Majewski was playing
- October 2004: One-day suspension for interfering with a pit manager who was trying to defuse a situation between Majewski and a guest, later reduced to a written warning
He had also received five “stellar stars” for good service. His performance evaluations were positive overall, noting his “excellent rapport with guests” and team attitude. He “follows all the existing and new policies and procedures very well,” is a “valued member of our team” and is “becoming an excellent representative of our company.”
Then on August 24, 2005, Majewski was hoping to leave work early due to one of his infrequent migraines. He put his name on the “early-out list,” and at his first break, he went looking for the list to see if he had moved up. In the back of house, he saw John Maracle with a copy of the list and asked to see it. Maracle pulled the list away and told Majewski to look at the copy in its usual spot. Majewski told Maracle his head was pounding and called Maracle a “fucking asshole.” Maracle left and when Majewski got back to his table his pit boss told him to talk to the shift manager, who suspended him pending an investigation.
The executive director of table games reviewed Majewski’s past record and the present incident and made the “simple decision” to fire the dealer.
The pattern of behaviour weighed heavily against Majewski. … I reviewed everything and the outcome was termination.
At the initial small claims trial, the judge found Majewski’s termination was not justified, but the Divisional Court found that the trial judge had “misapprehended the evidence” and misapplied the McKinley liability test, and called for a new trial—10 years after the first.
Key findings, the second time around
The small claims court didn’t make the same mistakes again, but it did come to the same conclusion. The court found:
- Swearing was part of the atmosphere of the casino
- Employees accepted that there was a difference at the casino between swearing with somebody and swearing at somebody
- Majewski was “at times a hothead”
- It was an accepted, if informal, policy that when employees had issues with players or co-workers, they would get a supervisor to deal with the problem
- The employer’s policy manual outlined steps of a progressive discipline process, but the policy didn’t preclude managers from skipping steps
- The investigation of Majewski’s behaviour was flawed
The McKinley test
The court quoted Dowling v Ontario (Workplace Safety and Insurance Board), 2004:
Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional—dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. (Emphasis added.)
A court must:
- Determine the nature and extent of the misconduct
- Consider the surrounding circumstances; and
- Decide whether dismissal is warranted
By this test, the court found:
Majewski’s role in the Maracle incident did not warrant his dismissal. Termination from employment for this incident alone was not proportional.
Nor was there cumulative cause. In its thorough re-examination of the case, the court found that there was no “last-straw” incident and the employer failed to give Majewski a final warning. In fact, when the executive director of table games reduced Majewski’s latest suspension to a written warning, he added a note that, “Mike has been informed that any further situations like these will lead to progressive counselling”—not termination.
The court noted:
I find Majewski’s conduct did not show a general laxity and disregard of instructions… At most, there were ill-advised outbursts from an employee who was improving over the years… I find that [the employer] had a combination of serious…and less serious…incidents to consider. That combination at minimum would have required [the employer] putting Majewski on clear notice his job was at risk… Majewski could have been dismissed for cumulative just cause if, after a review of his entire file, it was warranted. I have found it was not warranted, not meeting any “final straw” scenario. (Emphasis added.)
The court upheld its original award of $25,000.
First, employers should ensure they apply their workplace policies consistently. A policy against profanity at work won’t have teeth if the employer allows employees to curse and swear to their hearts’ content.
Second are the questions of what constitutes an incident that justifies termination and what constitutes a “last-straw” incident? Employers will have to think very hard about whether an employee’s behaviour is sufficient to lead to termination or whether a lesser punishment is more appropriate. Was the employee’s behaviour “incompatible with the fundamental terms of the employment relationship”? Did it “strike at the heart of the employment relationship?” If not, think twice before letting that employee go.