Slapping incident not enough to terminate employee for cause

February 03, 2013 - by: Karen Sargeant 0 COMMENTS

By Karen Sargeant

We all know proving cause for termination in Canada is difficult. Poor performance rarely equates to cause. And employees seem to be entitled to warnings in most cases. But surely it is cause if an employee slaps another. Not so, according to one Ontario judge in Shakur v. Mitchell Plastics.

Slap

The plaintiff, Wazir Shakur, was a machine operator at Mitchell Plastics for almost six years. He was 35 years old when he was fired. He earned $15 per hour. Shakur routinely engaged in verbal jousting with other employees. But it was usually limited to trash talk. Not so on August 17, 2007, when Shakur slapped another employee with whom he was trash talking across the face.

Shakur had no history of violence. And the judge concluded that the other employee said something, although he wasn’t sure what, to provoke Shakur.

Not cause

Quoting from the Supreme Court of Canada’s decision in McKinley v. BC Tel, the judge stated that “an employee’s misconduct does not inherently justify dismissal without notice unless it is ‘so grievous’ that it intimates the employee’s abandonment of the intention to remain part of the employment relationship.” Measured against this standard, the judge said it was difficult to see how Shakur’s action, however improper, justified an outright dismissal.

Mitchell Plastics argued that the misconduct amounted to cause because, among other things, workplace violence couldn’t be condoned. Although the judge appreciated the importance of stopping workplace violence, because Mitchell Plastics did nothing to train its employees about workplace violence rules and the consequences of breaking them other than distributing the employee handbook, it couldn’t rely on workplace violence to amount to cause.

Award

Having determined that there was no cause, the judge concluded that the reasonable notice period was 4.5 months. Shakur was therefore entitled to damages equal to what he would have earned had he worked 4.5 months. Adding lost salary, profit sharing, and benefits, that amounted to $12,514.

Meaning for employers

This decision, although a lower court decision from one province, reiterates just how difficult it is for Canadian employers to prove cause. It also reinforces the importance of training employees on the workplace rules, particularly if the employer wants to rely on those rules as cause for termination. That training should involve:

• Clearly articulating the rules;

• Providing some context or explanation for the rules; and

• Clearly outlining the consequences of breaking the rules.

Labour, Employment and Human Rights Canadian Webcast February 21, 2013

Attorneys with Fasken Martineau, the authors of Northern Exposure – Employment Law for US Companies with Operations in Canada, invite you to a webcast on Thursday, February 21, 2013, 12:30 p.m.-2:30 p.m. EST. Members of the Canadian law firm will speak on the following topics:

  • Workplace Privacy in the Aftermath of the Cole Decision (Dominique Monet, Montréal)
  • Accommodating Mental Disabilities and Mood Disorders (Katherine M. Pollock, Toronto)
  • Culpable, Non-Culpable and Hybrid Analysis – The Evolving Approach as to the Impact of Disability on Discipline (Lorene A. Novakowski, Vancouver)

Log-in instructions will be sent by e-mail a few days before the seminar. To register, click here.

For American participants: Upon request, Fasken Martineau will file necessary applications to have this seminar recognized by the American Bar Association.

 

About Karen Sargeant:
Karen Sargeant is a partner in the Toronto office of Fasken Martineau. She regularly advises and represents private and sector employers in all labour, employment law and human rights issues. Karen regularly appears before arbitrators, the courts and human rights tribunals on behalf of such employers. She writes articles and conducts many presentations for employers - on all aspects of labour, employment, human rights and privacy law.

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