Tuesday, 14 October 2014

Alleging Employer "Paid Off" MOL Inspector Part of Successful 'Cause' Case

As any employer will tell you, establishing that an employee has provided cause (or "just cause") for dismissal can be extremely challenging.  But in a recent decision of the Ontario Superior Court of Justice, an employer prevailed where an accumulation of performance and behavioral issues led to the termination of a Shift Supervisor. 

In Chopra v. Easy Plastic Containers Limited, the employee had a checkered past.  Over the course of his employment there had been several incidents of performance or behavioral issues, including the following:
  • Allowing an unauthorized person to access the tool room and use tools;
  • Permitting employees under his supervision to leave the plant for approximately an hour without requiring them to punch out;
  • Approving a skid of product without ensuring that necessary labels were affixed;
  • Winking at and touching the hand of a co-worker; and
  • Falling asleep during a midnight shift.
The incidents were all documented with written or verbal warnings, and following the last event, the employee was placed on the day shift.  Shortly thereafter, the employee made a complaint to the Ministry of Labour ("MOL") regarding safety concerns with two of the machines on the line, and refused to work on either machine.  Following a first visit from a MOL inspector, no significant issues were found, but the employee continued to refuse to work on the machines in question. A short time later, he received yet another performance-related written warning from the employer.  He then made further complaints to the MOL, which were denied without any orders being issued.

The employer moved the plaintiff to the maintenance department, and only a few days later he was given a 3-day suspension for refusing to wear required Personal Protection Equipment ("PPE").  The employee raised claims that he was being harassed, but the employer did not take any action. Over a short span of time, the employer learned that the employee was trying to get another employee to support his claims of harassment, had told other employees that the company was going to close, and that the employee was spreading rumours among his co-workers that the company had paid off the MOL inspector (whom he referred to as a "rat") so that he would not uphold the employee's safety complaints.  After finding out about the latter issue, the employer met with the plaintiff and terminated his employment for cause.  The employee sued for wrongful dismissal, claiming that he had been dismissed in retaliation for raising safety concerns with the MOL.

Justice Sanderson reviewed the evidence regarding the various disciplinary issues that the company had brought to the plaintiff's attention, and found that the incidents had been established and that the employee had not challenged the basis for the discipline. Moreover, in documenting these issues, the employer had brought serious problems to the plaintiff's attention and had given him ample opportunity to correct his behaviour.  After reviewing the law on 'cumulative just cause', the Judge ruled that the employee's performance, together with his "insubordination and conduct specifically designed to harm Easy", amounted to just cause for dismissal.  The Judge also rejected the employee's claims that the workplace was unsafe or that his complaints to the MOL played any part in the employer's decision to terminate his employment.  Accordingly, his claim was dismissed.

The Court's decision gives some helpful guidance to employees dealing with employees with a history of unsatisfactory performance and behaviour.
  • Document, document, document! - all disciplinary incidents must be clearly documented, indicating expectations for improvement and the potential for further corrective action.
  • Corrective action should be progressive - where unacceptable behaviour persists, ensure that the employer's response is measured and progressive, providing for escalating penalties, and ultimately warning that employment is in jeopardy.
  • Avoid extraneous considerations - ensure that disciplinary decisions do not reference or rely on irrelevant (and dangerous) factors, such as non-culpable concerns or complaints (even if those complaints are unfounded).
While making the case that an employee has given cause for termination can be time-consuming and difficult, following a few basic rules can improve the odds that the employer will prevail.

Do you have questions about "just cause"?  Wonder if and when an employment relationship is irrevocably damaged?  Contact Lance Ceaser for expert guidance.


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