A termination for good business reasons does not always equate
to a termination for just cause. In the recent decision of
the Ontario Superior Court in Barton v. Rona Ontario Inc.,
Mr. Justice Lauwers stated that even if an employee's serious
misconduct was such that the employer concluded that it needed to
dismiss him to make an example of him, the misconduct might not
necessarily be sufficient to warrant a termination without
Barton was employed by the defendant for over 10 years and at
the time of termination he was an assistant store manager.
Under his watch, an order picker truck was used to lift a
wheelchair-bound employee from the ground floor to a second floor
training centre and back again, for computer training (due to the
fact that the only training office in the store was on the second
floor and not otherwise accessible to wheelchairs). This
incident was contrary to the defendant's safety expectations as
set out in the Employee Handbook, the Health and Safety National
Manual and the Occupational Health and Safety Act.
While Barton indicated his discomfort with the planned
incident to both the operator of the order picker truck and the
disabled employee, he was aware that the disabled employee wanted
to attend the training and he did nothing to stop the employees
from proceeding with their plan. The incident turned out to
be even more dangerous than might otherwise have been the case, as
the wheelchair was not secured to the skid during the descent to
the ground floor, and as the area around the order picker truck was
not secured and someone walked under it during the lift.
Fortunately for all, nobody was hurt during the incident.
Several employees were disciplined due to their part in the
incident, but Barton's employment was terminated for cause due
to the fact that he was held to a higher standard than the
Mr. Justice Lauwers referenced Mr. Justice Echlin's
statement that just cause is "the capital punishment of
employment law". He also referenced the contextual
approach set out in the leading case of McKinley v. B.C.
Tel and stated that although Barton's misconduct was
serious, his performance appraisals were good, he had no
disciplinary record and he did not give permission for the lift or
descent (although neither did he stop them). By applying the
principle of proportionality set out in McKinley, he found
that Barton's actions were not sufficient to warrant a
with-cause termination. He found that while there may have
been good business reasons for Rona to terminate Barton's
employment and make an example of him in order to ensure that this
sort of incident did not happen again, those reasons were not
sufficient to elevate the termination to one without notice.
As a result, Barton was awarded 10 months of damages due to
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