THE EMPLOYERS' EDGE
Serious Safety Violation Not Enough to Justify Just Cause Dismissal Says Ontario Court of Appeal
Mr. Plester, a supervisor with 17 years’ service at PolyOne Canada Inc., committed a serious safety infraction by not locking out a machine he was trying to clear – his error put himself at risk. He then failed to immediately report the incident to the Health and Safety Co-ordinator contrary to the Company’s health and safety policy. He had been reprimanded a few months earlier for failing to report another workplace safety issue. Reporting health and safety issues was considered one of the Company’s “Cardinal Rules”. After conducting an investigation Mr. Plester was dismissed for just cause.
Mr. Plester sued for wrongful dismissal damages. In allowing Mr. Plester’s claim, the trial judge determined that the dismissal was out of line with how PolyOne had dealt with similar safety violations and failure to report in the past in comparable circumstances. Although emphasizing the importance of not treating health and safety violations “with leniency”, the trial judge determined that the response of dismissal for cause was disproportionate when compared with another case where an employee who did not report a safety infraction was not summarily dismissed.
PolyOne appealed to the Ontario Court of Appeal and argued that the trial judge had placed undue emphasis on PolyOne’s response to other incidents involving safety violations, particularly given Mr. Plester’s role as a supervisor. While the Court of Appeal agreed that the trial judge focused too much attention on the other workplace incident, it nevertheless upheld the trial judge’s decision on the basis that dismissal for cause was not warranted for a 17-year employee with an almost unblemished work record. The Court of Appeal took into consideration the fact that Mr. Plester’s error put only him at risk – as opposed to also endangering co-workers – and that he was a long standing, hardworking employee with only minor incidents of past discipline pre-dating his role as a supervisor. The Court of Appeal also relied on the trial judge’s finding that Mr. Plester had planned to report the incident and what occurred was an “intended short delay” rather than a blatant violation of the Company’s reporting obligations.
Mr. Plester was awarded 14 months’ salary as damages for wrongful dismissal.
This case is an important reminder to employers that dismissals for just cause are considered the exception rather than the rule. Courts are loath to uphold dismissals for cause for long-service employees unless the misconduct is so serious that a continuing employment relationship is untenable. When dealing with long-service employees with what amount to essentially clean disciplinary records, only the most serious incidents of misconduct will justify a summary dismissal. And while health and safety violations are increasingly being viewed by the courts as serious misconduct, it is important to fully consider all the relevant circumstances surrounding the employee’s conduct before determining whether a just cause dismissal can be defended.
The lawyers at CCP can assist employers in assessing whether there is just cause to dismiss an employee and in developing termination strategies to minimize liability.
To read the trial judge’s decision in Plester v. PolyOne Canada Inc. click HERE.
To read the Court of Appeal’s decision, click HERE.
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