In a recent decision of the Ontario Superior Court of
Phanlouvong v.Northfield Metal Products
, 2014 ONSC 6585, the court held that an employee who punched
another employee in the face after feeling disrespected by them was
terminated without cause and was awarded 15 months' notice.
In the case, the plaintiff had testified to punching a fellow
employee after the other employee bumped into him and refused to
apologize. The plaintiff felt that the failure to apologize
was disrespectful and an argument ensued ending with the plaintiff
punching the other employee in the face. The employer,
Northfield Metal Products, has a progressive discipline policy in
place to address any incidents of workplace violence, but this
incident was seen by the employer as being beyond reasonable and
the plaintiff was terminated with cause and without notice.
The employee had been at Northfield Metal Products for 16 years and
had no other incidents of violence or other types of serious
reprimands in his file.
The Court held that the termination was without cause as the
employer failed to implement its progressive discipline policy to
address its concerns with the plaintiff. While the Court
agreed that the incident of violence was worthy of sanction by the
employer, in light of their specific policy to address such
incidents and the failure of the employer to rely on such policy,
termination of employment was deemed too harsh a punishment for the
The Court, in looking at the plaintiff's length of service,
their age and other common law factors, and noting that this
particular violence was an isolated incident, stated that proper
notice under the circumstances would have been 15 months.
While termination of employment for cause for such an incident
of workplace violence would clearly be justified in most
circumstances, the Court appears to have put great weight on the
progressive discipline policy that was in place but not used by the
employer. It would be interesting to see if the result would
have been similar in circumstances where there was no specific
policy in place. Although the case is demonstrative of the
difficulties faced by employers in attempting to establish just
cause, it also shows that if there is a policy in place to address
an issue in the workplace before termination becomes an option,
that policy must be utilized by the employer and termination should
be deemed a last resort in any circumstance.
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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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