Since amendments to the Occupational Health and Safety Act introduced by Bill 168 imposed new obligations to proactively address workplace harassment and violence issues, employers have sometimes been tempted to approach all instances of workplace harassing or violent conduct by an employee as warranting summary dismissal without notice or pay in lieu of notice. These decisions are often made as part of a “zero-tolerance” policy towards workplace violence.
Since amendments to the Occupational Health and Safety Act introduced by Bill 168 imposed new obligations to proactively address workplace harassment and violence issues, employers have sometimes been tempted to approach all instances of workplace harassing or violent conduct by an employee as warranting summary dismissal without notice or pay in lieu of notice. These decisions are often made as part of a “zero-tolerance” policy towards workplace violence.
However, despite their obligations to protect employees from instances of workplace violence, employers must apply a contextual approach in determining whether to terminate an employee summarily for “just cause”. Indeed, since the Supreme Court of Canada’s decision in McKinley v. BC Tel, [2001] S.C.J. No. 40. (“McKinley”), employers have been required to take into account all relevant factors arising from the context of the employment relationship, and to balance the severity of an employee’s misconduct and the sanction imposed. The result is that, in many cases, dismissal will not be warranted and a lesser form of discipline will be appropriate in order to rehabilitate the employee, deter similar acts in the future, and provide a means of punishment.
While some employers may believe that any instance of workplace violence will be sufficiently severe to warrant summarily terminating the offending employee, the courts have not supported this view, a fact most recently confirmed by the Ontario Superior Court in Phanlouvong v. Northfield Metal Products (1994) Ltd. et al, 2014 ONSC 6585 (“Northfield Metal Products”).
Northfield Metal Products
In Northfield Metal Products, the employer dismissed the plaintiff, who had worked as a labourer for 16 years, after an altercation with a colleague. During a chance run-in with the colleague in a hall-way involving bumping and shoving, the Plaintiff struck his co-worker resulting in the co-worker receiving a bloody nose and broken safety glasses. The employer’s policy handbook provided that fighting could result in termination of employment and management personnel testified that, during their investigation of the incident, the employer had concluded that any act of physical assault by the Plaintiff, termination would be the only appropriate punishment. The Plaintiff was terminated following the employer’s investigation.
Broad J. reviewed the Supreme Court of Canada’s edict that misconduct will not justify summary dismissal unless it is “so grievous that it intimates the employee’s abandonment of the intention to remain part of the employment relationship”. Given this high standard, the judge found that the employee’s actions, while improper, did not justify dismissal without notice given largely due to the fact that the employer had not given any consideration to alternative punishments beyond summarily dismissing the Plaintiff. This factor was particularly important given that the employer had not summarily dismissed the other employee involved in the incident.
Broad J. therefore found that the employer had not demonstrated, on a balance of probabilities, there were no other reasonable alternatives to termination of the Plaintiff’s employment without notice. As a result, he found that the Plaintiff had been wrongfully dismissed from his employment, and awarded him 15 months’ wages in lieu of notice.
Take Home Lessons
Where an employee has engaged in violent workplace behaviour, employers have an obligation to respond in order to protect the other employees in the workplace. However, the content of that response may take many forms, and employer should refrain from applying a “one size fits all” approach. While incidents of assaults in the workplace should be treated extremely seriously and will often justify discipline, employers must ensure that any discipline levied is proportionate to the offending conduct.
Should an employer’s decision to summarily terminate an employee be challenged, the employer will be required to show that there were no reasonable alternatives available beyond terminating the employee without notice. The Northfield Metal Products confirms two important considerations when dealing with workplace violence and employee terminations: first, that it is increasingly difficult to establish just cause for summary dismissal for single acts of misconduct; and second, the courts will generally insist on the application of progressive discipline in instances of employee misconduct, even where there is a company policy in place providing that termination may result where an employee engages in workplace violence.