In Czerniawski v. Corma Inc., 2021 ONSC 1514, the Ontario Superior Court of Justice concluded that a long-term employee’s misconduct did not justify dismissal for cause without notice. The court awarded 19 months’ common law reasonable notice.

Background

After working for 19 years without any performance issues, a 54-year-old assembler got into a dispute with a co-worker over work distribution. The incident involved raised voices but no physical contact. The employee was asked to leave the workplace several times, but he did not leave. After asking what he was accused of, the employee was told only that there would be an investigation. The police were called and escorted the employee from the premises. The employer and the police told the employee not to return until advised to do so; however, four days later, having heard nothing from the employer, the employee went to the reception area to deliver a letter with his side of the story for the investigation. Although an investigation occurred, the employee was not interviewed. Following the investigation, the employee was terminated for cause based on two grounds:  (a) 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 (b) he was insubordinate because he refused to leave and then returned to deliver his letter.

Decision

The court concluded that considering all of the circumstances, the misconduct did not justify dismissal without notice. The court followed McKinley v. BC Tel, 2001 SCC 38 (McKinley), in which the Supreme Court of Canada (SCC) held, “an employee’s misconduct does not inherently 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 behaviour and the employee’s tenure and disciplinary history.

The court acknowledged the employee’s 19 years of service as a conscientious employee with no performance issues, and no prior history of discipline, threats or violence. The incident was isolated, and the court was not satisfied that fear of violence was justified based on what occurred. Although the employee instigated 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; however, 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 attendance at reception was “ill-advised,” it took into consideration that the employer did not advise him what the allegations were or get his version of the facts. In addition, the court noted that the employee cooperated with the police and apologized for the police having to be involved.

The court concluded, “Progressive discipline for this incident such as a disciplinary letter 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.” (para. 38) The court stated further:

In accordance with the principle set out in McKinley, supra, the plaintiff’s misconduct was not so egregious that it can be said that he abandoned the intention to remain part of the employment relationship. The plaintiff should have been advised that his misconduct was serious and that a repetition would result in termination of this employment.

Considering all of the circumstances including the lack of an apology, the misconduct in this case does not justify dismissal without notice. (para. 42 and 43)

Taking into account that the employee was 54 and held a technically skilled position 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 it 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 v. Corma Inc. provides the following important reminders to employers:

1. When an employer asks an employee to leave the workplace following an incident involving the employee, the employer should explain why they have been asked to leave, i.e., what allegations have been made;
2. When an employer conducts an investigation into a workplace incident involving an employee, the employee should be interviewed and asked to provide their version of the facts;
3. Misconduct does not inherently justify dismissal without notice unless it is “so grievous” that it intimates the employee has abandoned the intention to remain part of the employment relationship. In determining consequences, a proportional balance must be struck between the severity of the misconduct and the employee’s tenure and disciplinary 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 employment.
4. In assessing the severity of misconduct, a court will consider the employee’s actions in context, including how the employer handled the situation, e.g., an employer’s failure to inform the employee of the allegations against them or to include the employee in an investigation.

When faced with an employee’s misconduct in the workplace, employers are encouraged to seek the advice of experienced employment counsel regarding: communicating with the employee; how to conduct an investigation; how to assess the severity of the misconduct; and appropriate sanctions.