The employee in question was terminated for cause and without
notice after a workplace incident in which the employee punched
another employee in the face. The incident arose when an
employee bumped into the plaintiff. Feeling harassed, the
plaintiff demanded an apology, and when he did not get one punched
the other employee in the face. The victim of the
punch was suspended for 1 week for his role in the incident,
most importantly his failure to apologize or simply walk away from
the plaintiff, which resulted in the escalation of the altercation.
The plaintiff was terminated for cause.
The plaintiff, a 16-year employee, sued for wrongful termination
demanding 17 months' notice as well as aggravated and punitive
The Court concurred with the employer that the plaintiff's
conduct was worthy of discipline, but concluded that termination
was too harsh and awarded a 15 months' notice period. The Court
noted the employer's workplace violence policy, which included
a program of progressive discipline for workplace violence. The
plaintiff had no disciplinary history. While the Court noted that
even without any disciplinary history termination can be the
appropriate discipline for workplace violence, it concluded that it
is incumbent on the employer to consider alternatives to dismissal
before terminating an employee for cause. In this case, the Court
found that the employer had not considered any alternatives to
dismissal before termination. As such, the Court found that
termination was excessive discipline and therefore the
plaintiff's dismissal was without cause.
This case serves as a reminder of how difficult it can be to
establish just cause, even for matters as serious as workplace
violence. Workplace violence will generally be cause for
discipline, and may well be cause for termination. When a workplace
violence policy calls for progressive discipline employers will be
expected to apply progressive discipline absent compelling reasons
for harsher punishment. In addition, factors such as an
employee's length of service and the risk of further violence
will be considered by Courts as mitigating factors when determining
whether discharge is an appropriate response to workplace
violence. In non-union workplaces, where just cause to
terminate does not exist employers will be required to provide
notice of termination, as determined by contract, statute or the
common law as the case may be. This does not, however, prevent the
employer from terminating, but rather simply means that termination
without just cause may necessitate the provision of notice or pay
in lieu thereof.
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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.
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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