We all know proving cause for termination in Canada is
difficult. Poor performance very rarely equates to
cause. And employees seem to be entitled to warnings in most
cases. But surely it is cause if an employee slaps
another. Not so, according to one Ontario judge in Shakur v. Mitchell
The plaintiff, Mr. Shakur, was a machine operator at Mitchell
Plastics for almost six years. He was 35 years old when he was
fired. He earned $15 per hour. Shakur routinely engaged in
verbal jousting with other employees. But it was usually
limited to trash talk. Not so on August 17, 2007, when Shakur
slapped another employee with whom he was trash talking, across the
Shakur had no history of violence. And the judge concluded
that the other employee said something, although not sure what, to
Quoting from the Supreme Court of Canada's decision in
McKinley v. BC Tel, the judge stated that "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". Measured against this
standard, the judge said it was difficult to see how Shakur's
action, however improper, justified an outright dismissal.
Mitchell Plastics argued that the misconduct amounted to cause
because, among other things, workplace violence could not be
condoned. Although the judge appreciated the importance of
stopping workplace violence, because Mitchell Plastics did nothing
to train its employees about workplace violence rules and the
consequences of breaking them, other than distributing the Employee
Handbook, it could not rely on workplace violence to amount to
Having determined that there was no cause, the judge concluded
that the reasonable notice period was 4.5 months. Shakur was
therefore entitled to damages equal to what he would have earned
had he worked 4.5 months. Adding lost salary, profit sharing
and benefits, that amounted to $12,514.
The Meaning for Employers
This decision, although a lower court decision from one
province, reiterates just how difficult it is for Canadian
employers to prove cause. It also reinforces the importance of
training employees on the workplace rules, particularly if the
employer wants to rely on those rules as cause for
termination. That training should involve:
Clearly articulating the rules;
Providing some context or explanation for the rules; and
Clearly outlining the consequences of breaking the rules.
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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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