Unfortunately, there is no easy answer to this frequently posed
Termination for cause is seen as the "capital
punishment" of employment law. Most experts will tell you that
it takes more than one incident to justify dismissal for cause.
However, in a relatively recent case, Dziecielski v. Lighting
Dimensions Inc., 2013 ONCA 565, the Ontario Court of Appeal
upheld the dismissal of an employee for cause following a
single incident of serious
The case involved the dismissal of Mr. Dziecielski,
Vice-President of Lighting Dimensions. Mr. Dziecielski had worked
for the company for 23 years without any serious issues.
Mr. Dziecielski stopped for lunch on April 23, 2007, consumed 4
beers in the span of one hour, proceeded to operate the vehicle and
got into a serious single-vehicle accident.
He sustained serious injuries and the company vehicle was
destroyed. A police investigation determined he was legally
intoxicated at the time of the collision. Mr. Dziecielski was
charged with a number of criminal offences relating to drunk
driving. The company dismissed him for cause.
Mr. Dzielcielski sued for wrongful dismissal, relying on the
fact that he had an unblemished record prior to the one incident.
At trial, the court found for the employer. Not surprisingly, Mr.
The Ontario Court of Appeal in a very short decision released on
September 11, 2013 upheld the termination on the basis that the
employee's conduct amounted to serious misconduct, despite his
previous unblemished record.
Courts have consistently emphasized that the analysis will be
contextual and fact specific. In this case, it was noted that
intoxication alone may not justify dismissal, rather the
determination was made in light of all of the factors, including
the fact that Mr. Dziecielski's actions amounted to very
serious misconduct which was prejudicial to the employer's
business, consisted of the commission of a crime and put himself
and members of the public at risk.
It is worth noting that the facts of this case did not give rise
to any suggestion of a substance abuse problem. Had Mr. Dziecielski
raised such issues, the analysis by the courts would likely have
been quite different. Substance abuse is considered a disability
pursuant to the Ontario Human Rights Code (the "Code").
As such, an employee who discloses to an employer that he or she
suffers from a substance abuse problem or who displays behavior
which ought reasonably lead an employer to make further inquiries
in this regard, will attract the protections of the Code. A
situation involving an employee suffering from a substance abuse
problem would require an analysis of additional considerations by
the court, including:
whether or not the employee in fact suffers from a
whether the employer knew or had a duty to inquire about the
possibility of a substance abuse issue;
whether or not the employer had a duty to accommodate that
disability to the point of undue hardship.
This case provides hope for employers that it is possible to
terminate for cause for a single serious instance of misconduct.
Sadly, there is no clear test, but the Court of Appeal has shed
some light on the factors that will be considered.
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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