Even when workplace rules seem clear, each case turns on its
facts. The recent decision in Plester v PolyOne Canada Inc
(2013 ONCA 47) confirms the ongoing challenges which employers face
in their attempts to terminate employees for cause. Even when an
employee admittedly breaches an established and fundamental rule,
the courts adopt the so-called "contextual approach" and
must assess the proportionality of termination in the unique
circumstances of each case.
In the case of John Plester, the relevant rule related to
workplace safety, with PolyOne terminating his employment following
his failure to lock out a machine he had been working on. The
company was able to point to the widely known "Cardinal
Rule" in the workplace, which required that all machines be
locked out when anyone was working on them. Plester acknowledged
both that this rule existed, and that he knew about it. His
successful defence, however, was tied to his assertion that his
breach was not intentional, and he had planned to report the
violation after it had occurred.
The unsuccessful appeal by PolyOne of the trial judge's
decision may be surprising to some. However, the decision of the
Ontario Court of Appeal may in part be one driven by the fact that
other safety incidents in the same workplace did not necessarily
appear to have been violations which warranted discharge. Put
differently, the purported "zero tolerance" was in fact a
more flexible standard in actual practice. The specific employee
evidence regarding the relevant incident also appears to have been
inconsistent. The result was that Plester's approach, which was
to be contrite and point to his long and loyal service,
The lesson from the PolyOne decision is that the potentially
inconsistent application of workplace rules can be problematic. In
cases where expectations and standards are either not made clear to
employees, or are not consistently applied, cause for termination
will not be an automatic result. Thus, even though employers have
obligations to maintain a safe workplace and protect the health and
safety of that environment, this decision suggests at least some
necessity for a breach to be established on clear facts without
contrary evidence of prior inconsistent application.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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