Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases the investigation, the employee was terminat- ed for cause based on two grounds: He acted in a threatening manner to co-workers in an attempt to intimidate them and this caused them to fear he would become violent; and he was insubordinate because he initially refused to leave and then returned to deliver his letter. The court concluded that, considering all of the circumstances, the misconduct did not justify dismissal without notice. The court fol - lowed the 2001 decision McKinley v. BC Tel, in which the Supreme Court of Canada held that "an employee's misconduct does not inher- ently justify dismissal without notice unless it is 'so grievous' that it intimates the employee's abandonment of the intention to remain part of the employment relationship." The court noted the McKinley emphasis on the need to strike a proportional balance between the severity of the misconduct and the sanction and to consider the facts relating to the behav- iour and the employee's tenure and disciplin- ary history. The court acknowledged the employee's 19 years of service as a conscientious employee with no performance issues and no prior his- tory of discipline, threats or violence. The in- cident was isolated and the court was not sat- isfied that fear of violence was justified based on what occurred. Although the employee in- stigated a verbal altercation with a co-worker, there was no evidence that he acted offensively to others. The court agreed that the employee should have gone home when asked and that his failure to do so was insubordination; how - ever, it noted the context of his refusal to leave, namely that he received no response to his question as to why he was being sent home and he was concerned that the investigation would be conducted without his involvement. Furthermore, while the court agreed that his at - tendance at reception was "ill-advised," it took into consideration that the employer did not advise him on what the allegations were or get his version of the facts. In addition, the court noted that the employee co-operated with the police and apologized for the police having to be involved. The court concluded that "progressive disci - pline for this incident such as a disciplinary let- ter or suspension would have sent the message that his behaviour was unacceptable and given him a warning that a continuation could result in his dismissal." The court added that the employee's mis- conduct "was not so egregious that it can be said that he abandoned the intention to re- main part of the employment relationship" and Corma should have advised him that re- peating the misconduct would result in termi- nation of his employment, in accordance with the principle set out in McKinley. Even with- out an apology, the court determined that the worker's misconduct didn't justify dismissal without notice. Taking into account that the employee was 54 years old and held a technically skilled po - sition for 19 years, the court awarded him 19 months' common law reasonable notice plus benefits during the notice period. The court concluded that the employer did not meet its onus of establishing that the employee failed to mitigate his losses and dismissed the claim for aggravated and punitive damages because it did not find the requisite unfairness or bad faith on the part of the employer necessary for such an award. Bottom line for employers Czerniawski provides the following important reminders to employers: When an employer asks an employee to leave the workplace following an incident in - volving the employee, the employer should explain why they have been asked to leave and what allegations have been made. When an employer conducts an investiga - tion into a workplace incident involving an employee, the employee should be inter- viewed and asked to provide their version of the facts. Misconduct does not inherently justify dismissal without notice unless it is so griev - ous that it intimates the employee has aban- doned the intention to remain part of the employment relationship. In determining consequences, a proportional balance must be struck between the severity of the mis - conduct and the employee's tenure and dis- ciplinary history. If the incident is isolated and the employee has a long tenure with no prior performance issues or discipline, then termination for cause is not likely justified. In such circumstances, progressive discipline in the form of a disciplinary letter or suspension is a more appropriate outcome. In providing such discipline, the employee may be advised that their misconduct was serious and that a repetition would result in termination of em - ployment. In assessing the severity of misconduct, a court will consider the employee's actions in context, including how the employer handled the situation — for example, an employer's failure to inform the employee of the allega - tions against them or to include the employee in an investigation. When faced with an employee's misconduct in the workplace, employers should pay care- ful attention to communicating with the em- ployee, how to conduct the investigation, how to assess the severity of the misconduct and ap- propriate sanctions. For more information, see: • Czerniawski v. Corma Inc., 2021 ONSC 1514 (Ont. S.C.J.) • McKinley v. BC Tel, 2001 SCC 38 (S.C.C.) « from ONTARIO EMPLOYEE'S on page 1 Employee had no prior history of discipline in 19 years of service The transfer from a straight day shift to a rotating one had a penalizing effect on the worker, over and above the penalizing effect of the unpaid suspension. CREDIT: FIZKES iSTOCK ABOUT THE AUTHORS Rhonda B. Levy is knowledge management counsel for Littler LLP in Canada, monitoring legislative, regulatory and case law developments. She can be reached at (647) 256-4545 or rlevy@littler.com. George Vassos is a partner with Littler LLP in Toronto, practising on a wide variety of labour and employment law issues. He can be reached at (647) 256-4504 or gvassos@littler.com. CELT_Issue_30 MAY 5 FINAL.indd 7 CELT_Issue_30 MAY 5 FINAL.indd 7 4/21/2021 4:04:06 AM 4/21/2021 4:04:06 AM

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