A recent decision by the Ontario Superior Court provides
employers with a helpful precedent when seeking to terminate an
employee for cause. In Chopra v. Easy Plastic Containers
Limited,1 a number of separate incidents of
misconduct and performance issues, taken together, provided
sufficient justification for a just cause dismissal.
Mr. Chopra claimed that his former employer wrongfully dismissed
him. He also claimed that his dismissal was in essence a reprisal
under s. 50 of the Occupational Health and Safety Act for
complaints he had made to the Ministry of Labour, and that the
employer acted in bad faith, failing to fairly, fully and
impartially investigate in order to understand his version of
events. He sought over $100,000 in damages, which included
aggravated damages for bad faith termination and negligent
infliction of mental suffering, as well as punitive and exemplary
The employer submitted that it had just cause to terminate Mr.
Chopra's employment and, therefore, he was not entitled to
damages. The employer claimed that Mr. Chopra's termination was
a result of a number of incidents beginning in 2007, including poor
performance, serious misconduct, insubordination, incompetence,
breach of company rules and conduct prejudicial to the
employer's business. This included allowing an unauthorized
person to enter a restricted area and use equipment, allowing
employees under his supervision to leave the premises without
punching their time cards, approving products with missing labels,
falling asleep during a night shift (which resulted in him being
moved to the day shift), a mistake on the job resulting in two
hours of bottle production having to be destroyed and ignoring
instructions to wear protective equipment (resulting in a three-day
suspension without pay).
Following these incidents, Mr. Chopra approached a co-worker and
asked him to help build a case against management, who he claimed
had been harassing him. This co-worker had not witnessed any such
behaviour and refused to agree, reporting these comments to the
employer's management. Mr. Chopra also told co-workers that the
Ministry of Labour representative was a "rat" being paid
by the employer to find that there wasn't any wrongdoing with
respect to Mr. Chopra's health and safety complaints. Over this
period, Mr. Chopra received a total of six written warnings, along
with a number of verbal warnings.
Mr. Chopra's behaviour fell below a reasonable standard of
conduct. The Court accepted the employer's submissions that the
various incidents of misconduct and poor performance were
sufficient to terminate Mr. Chopra's employment for cause.
Adopting a contextual and proportional approach, the incidents
taken together were not minor or trifling and affected the
workplace as a whole. The Court quoted Echlin J. in Daley v.
Depco International Inc.,2, stating that there were
enough "bricks to constitute a just cause wall".
Furthermore, Easy Plastic was justified in their actions
following each individual incident of misconduct and had adequately
investigated the health and safety concerns that Mr. Chopra raised.
The termination was not a reprisal under s. 50 of the
OHSA. The Court also rejected Chopra's argument that
he had no opportunity to dispute the facts in his warning letters,
as he could have written responding letters setting out his version
of the facts.
An accumulated series of incidents of misconduct may entitle an
employer to dismiss for cause. The case law relied upon in this
decision stated that the quality of the cumulative
misconduct, rather than the similarity, shows an intention to no
longer be bound by the employment contract. A proper analysis takes
into account the nature and extent of the misconduct, the
surrounding circumstances, particular factors of the employee and
employer and the seriousness of the misconduct, which may give rise
to a breakdown in the employment relationship.
The fact that there were a total of six welldocumented warnings
is not insignificant. This Court relied on the ample verbal and
written warnings given to Mr. Chopra, which explained his poor
performance and the necessity to correct it. He had several
opportunities to improve his behaviour and failed to do so. He also
did not respond to the warnings to set out his own account of the
events in writing. This case shows that an employer may be able to
meet the threshold to establish a termination for cause when an
employee has engaged in cumulative acts of misconduct, poor
performance and failure to improve.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).