( Disponible en anglais seulement )
The case of Barton v. Rona Ontario Inc.1 raises the issue of dismissal for cause based upon employee misconduct relating to a serious safety violation. In this case, the plaintiff was an assistant store manager who had worked for the employer for almost 4 years. The employee Mr. Barton was dismissed for cause together with another employee. Following trial, it was determined that the employer did not have cause to terminate his employment. Mr. Barton was unemployed for 12 months following his termination. As a 64 years old employee of 3 years and 8 months seniority, Mr. Barton was awarded 10 months in lieu of notice.
Referencing the contextual approach in assessing whether there was cause to terminate Mr. Barton, the Court focused on his act of misconduct. There was clear misconduct in that Mr. Barton was aware that employees were utilizing a lift truck (“order picker”) to assist a co-worker who used a wheelchair to access a second floor room for the purpose of attending a training program. The room was not otherwise accessible to the employee. The Trial Judge found that Mr. Barton breached his obligations as a manager in that he failed to take appropriate steps to stop this use of the lift truck. The evidence at trial disclosed that while Mr. Barton as manager did not “positively give permission for the lift scheme” he did not order that the employees not carry out the actions in moving their colleague up to the second floor nor did he stop them from repeating the act to facilitate his descent. This was determined by the Court to be a breach of his obligations as a manager.
The incident was investigated internally. The employer had internal safety rules prohibiting use of “power equipment by unauthorized employee, or riding on any moving equipment” which was listed in their policies under “Causes for Immediate Dismissal”.
The Trial Judge agreed that the misconduct of Mr. Barton as manager was serious but found that such misconduct was not severe enough to warrant dismissal. The Trial Judge concluded that a stern warning would have been appropriate discipline relating to Mr. Barton’s role in the serious safety violation. Of important note is that the employee had an excellent work record and no prior infractions were noted. As such the Trial Judge determined that there was nothing in the work history of the employee to suggest that he was not amenable to discipline or that he would repeat such misconduct in the future.
The use of discipline in response to serious safety violations poses a significant challenge for employers. Some employers may cite a “zero tolerance” policy for such violations. Even in a situation of a safety violation it is clear that a contextual approach to the misconduct will be undertaken by the Court in assessing the seriousness of the misconduct and the proportionality of the response by the employer.
1 2012 ONSC 3809