When a training session was being conducted on the second floor of a local hardware store, a few employees realized that their wheelchair-bound colleague would be unable to attend. The colleague requested that they strap him in his wheelchair onto a forklift, in order to hoist him onto the second floor. They gladly obliged. At the end of the training session they lowered him to the ground floor. While no one was hurt, several safety procedures were not followed.
At first glance, this incident simply appears to be a workplace accommodation effort, in fulfillment of the duty imposed by the Human Rights Code. Normally, one is not penalized for trying to comply, but in this case, all of the employees involved were disciplined for their involvement.
The case centers on one of the disciplined employees, an Assistant Store Manager with over ten years of service. He was terminated for cause on the basis that he failed to prevent the incident from taking place. He brought a wrongful dismissal suit to the Ontario Superior Court of Justice.
The court found that the employer did not have just cause to dismiss the employee. Firstly, the court reasoned that the Supreme Court of Canada’s landmark decision in McKinley v. BC Tel, set out the proper interpretation for just cause terminations, pursuant to the Employment Standards Act, 2000. The decision states that the analysis must be contextual and proportional, and must strike an effective balance between the severity of an employee’s misconduct and the sanction imposed.
Second, looking at a more recent decision, in Tong v. Home Depot of Canada, the court found the standard to have been further clarified, requiring that the misconduct be serious. The misconduct must amount to a repudiation of the contract.
Finally, the court looked at the equally recent decision of the Court of Appeal in, Dowling v. Ontario, where the court applied a three-part test for the application of this standard. It consists of:
- determining the nature and the extent of the misconduct;
- considering the surrounding circumstances; and,
- deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).
The court found that on the one hand, the plaintiff was not on duty when the incident occurred, even though he had been informed of it prior to the day. Further, the plaintiff did not expressly permit the act, but neither did he expressly forbid his subordinates from doing the same. Further, an internal investigative report had concluded that all the employees involved ought to be disciplined short of termination because they had good intentions, and they had expressed remorse for their actions. Finally, the plaintiff had no disciplinary record, excellent performance appraisals, and ten years of service.
On the other hand, the Employee Handbook clearly stated that “any deliberate act which might endanger the safety or lives of others” was among one of several causes for immediate dismissal. The notice was reinforced by the workplace Health and Safety National Manual, the Code of Conduct, and the Safe-Tech Training program. The court declared these to be implied terms of the employees’ contracts. In addition, the court held that being in a supervisory role, the plaintiff must be held to a higher standard of care than non-managerial employees.
However, upon considering the whole of the circumstances, the court concluded that, in this case, one act of misconduct was not of sufficient severity to justify dismissal.
This decision is an important one for employers because it reiterates the importance of proportionality where an employer is considering a disciplinary penalty. The decision also demonstrates that workplace safety must always be considered in meeting the duty of accommodation.