In a previous post, we discussed a decision which held that,
PolyOne Canada Inc. (PolyOne), did not have just cause for
terminating a senior employee who committed a safety violation and
failed to report it, despite finding that the incident was very
serious and could have resulted in harm to the employee. The Court
of Appeal upheld this decision,
although it disagreed, in part, with the basis for the lower
The safety violation, which you may recall from our previous post, was that a supervisor, John
Plester, failed to lock-out a machine before attempting to fix it
and then failed to report the violation, both of which were in
breach of the employer’s safety policies. Even worse, Mr.
Plester allegedly tried to convince his subordinates not to report
the incident to his superiors.
Both the trial judge and the Court of Appeal agreed that,
although the policy violation was very serious and a supervisor was
subject to a higher standard than a line worker, Mr.
Plester’s conduct did not amount to just cause for
termination. This conclusion was based on the employee’s
long-standing clean work record and the fact that the safety
violation did not put other employees at risk. The Courts both
rejected PolyOne’s argument that Mr. Plester’s
behaviour amounted to a violation of the employer’s trust
which was sufficiently serious to render a continued employment
Where the trial judge and the Court of Appeal differed was on
the significance of PolyOne’s response to a previous incident
where an employee breached the same safety rule as the Mr. Plester
but was not terminated by the employer (the Glassford Incident).
Mr. Plester attempted to use the Glassford Incident to argue that
the response in his case was disproportionate. The Court of Appeal
stated that the Glassford Incident “cannot be used as a
comparator and the trial judge erred in treating it as such”.
The basis for this conclusion appeared to be that the employer only
became aware of the Glassford Incident as a result of Mr.
Plester’s action against PolyOne, although the Court of
Appeal did not elaborate on this point.
This case is a good reminder for employers to ask themselves two
questions before terminating an employee for just cause. First, in
view of the proportionality test, employers should ask what the
employee’s track record looks like. The longer an employee
has served without incident, the more egregious a single incident
must be in order to justify a for-cause termination.
Second, employers should consider how they have dealt with other
incidents of a similar nature in the past. Although in Plester
v. PolyOne, the Court of Appeal decided that the Glassford
Incident could not be used to support the employee’s argument
that the termination was not justified, the trial judge and other
cases relied on by the trial judge came to different conclusions,
emphasizing the importance of past enforcement in cases such as
these. Accordingly, it is important for employers not only to have
clear written policies, those policies must be enforced on a
consistent basis. Absent consistent enforcement, it will be
difficult to rely on such policies in order to terminate an
employee’s employment for just cause.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
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