There's a recent case, Phanlouvong v. Northfield Metal Products (1994) Ltd., which serves as a pretty good cautionary tale for employers: Mr. Phanlouvong ("Keg") was dismissed following a physical altercation between himself and a co-worker, in which the judge concluded Keg was the aggressor, which culminated in Keg punching the co-worker in the face breaking his glasses...and Justice Broad concluded that just cause was nonetheless not established.
Keg was an immigrant from Laos, who worked as a labourer for Northfield for 16 years. In the last few years, he had some personal conflict with another worker at his station, Bailey. Keg claimed that there was some racial animus to the conflict - he alleged that Bailey had once called him a "Chink or Korean", to which Keg replied "no I am Laos". (Isn't that right out of King of the Hill?) Another witness alleged that Bailey had once referred to Keg as "f*ing Chinese".
In October 2010, Bailey's elbow came into contact with Keg. There was some dispute as to whether it was intentional or accidental contact - a 'brush' or a 'jab'. The judge accepted that it was inadvertent. When challenged on it, Bailey refused to acknowledge the contact or apologize for it, and the matter quickly escalated with pushing, and then Keg punching Bailey in the nose.
Bailey reported to the first aid station, and per employer policy was sent to Grand River Hospital to be examined. In the mean time, management began to investigate, but they were pretty sure from early on what the result would be: It appears that, in all previous incidents involving physical assault, they had terminated the offending employee. So the Plant Manager's instruction to HR was pretty clear, that if it was confirmed that Keg had, in fact, punched Bailey in the face, he would be fired.
The HR Manager interviewed the witnesses, and then Bailey when he returned from the hospital. The judge noted in his reasons that the HR Manager determined Bailey's penalty - a one week unpaid suspension - before getting Keg's side of the story. He then interviewed Keg, who claimed to be acting in self-defence. Afterwards, the HR Manager presented a termination notice indicated that he had 'discussed his findings' with the management team (even though he actually hadn't met with other members of management since conducting the interviews), and "agreed to terminate your employment as a result of your actions today."
Keg sued the employer in wrongful dismissal, claiming pay in lieu of notice aggravated damages, punitive damages, and a declaration that his Code rights had been violated. He also sued Bailey personally, alleging assault, battery, and intentional infliction of mental distress.
As noted above, the Court rejected Keg's contention that he had been intentionally elbowed or was defending himself. The earlier contact was unintentional, and it was Keg who picked the fight.
However, Justice Broad is concerned that the employer never really canvassed the availability of lesser penalties than termination, concluding from minute one that, if Keg had in fact assaulted Bailey, he would be fired.
The employer argued that Keg's conduct was aggravated by its breach of the Occupational Health and Safety Act, the fact that he failed to take responsibility for his actions, and the fact that his first lawyer (not his trial lawyer) had allegedly prepared false affidavits for witnesses to bolster his story.
On the first aggravating factor (OHS), the Court concluded that this not eliminate the need for a contextual analysis. The Court accepted that the second factor was relevant, but not necessarily determinative in this case. And the third factor is rather unusual, and the judge wasn't persuaded that such an issue was appropriate for consideration as after-acquired just cause.
On the flip side, Keg had a long period of unblemished employment, with no prior discipline at all in his 16 years of service.
"In utilizing a contextual approach, and in applying the principle of proportionality, I find that Northfield has not discharged the onus on it to prove, on a balance of probabilities, there were no other reasonable alternatives to termination of Mr. Phanlouvong's employment without notice, and accordingly I find that Mr. Phanlouvong was wrongfully dismissed."
Keg was awarded pay in lieu of 15 months' notice, less mitigation earnings. However, the other allegations and claims were not made out.
It's always fun to sensationalize a story by pointing to the worst facts, in isolation, and say "Look, this guy punched his co-worker in the nose, and still couldn't be fired without a package." But Justice Broad is absolutely right about at least one thing: Breach of the workplace violence provisions of the OHSA, while probably an important factor, is not determinative, and still calls for a full contextual analysis.
What's most interesting about this decision is the overall sense that the judge is coming at it from a procedural point of view - it's less about whether or not there was an alternative to dismissal under the circumstances, and more about whether or not the employer had adequately considered the possibility.
Despite the increasing case law suggesting an employer's duty to investigate, it strikes me that it would probably still be an incorrect statement of the law to call it a procedural question: Regardless of whether or not the employer properly investigated, and properly considered all their options, the question for the court is always going to be, simply (or perhaps not so simply), whether or not the employee's actions, in the circumstances, amounted to just cause for dismissal.
However, I don't think Justice Broad got this wrong, nonetheless: It's an issue of onus, and the subtext of the decision seems to be that, having failed to seriously consider its other options, the employer can't satisfy its onus that termination was the appropriate response.
This is the trend throughout the 'duty to investigate' cases: The extent of the obligation to investigate aside, the failure to investigate will create a practical bar to satisfying an employer's onus to prove just cause. Remember Ludchen v. Stelcrete? "Having failed to thoroughly investigate this matter at the time, Stelcrete now has great difficulty assembling the evidence to prove the alleged misconduct on which it acted more than five years ago."
Lessons to Take Away
The courts are sending a clear message to employers: When you're faced with allegations of misconduct, and even of very severe misconduct, conduct a proper investigation with an open mind. Obtain appropriate expert assistance to do so, if necessary. Because if you have to go to court on a just cause issue - a very expensive proposition, especially if you lose - having covered off your bases at the start is going to be pretty much essential.
Quite frankly, if the employer had been able to come to court saying "We seriously considered whether or not we could continue the employment relationship in light of Mr. Phanlouvong's misconduct, and determined that, given the nature of the incident and the injuries sustained by Mr. Bailey, returning him to the workplace in any capacity would not have been consistent with our obligations under the Occupational Health and Safety Act", then this could have ended very differently.
As for what employees should take away from this case, that's less significant: This case certainly does not stand for a proposition that first offenders get "one free punch", or anything of the like. It's a contextual analysis.
However, this case highlights the importance of getting good legal advice after a 'for cause' termination, even if you did what you're accused of doing. Because just cause is a two-part question: Firstly, are you guilty of the conduct alleged to constitute just cause? Secondly, is the misconduct sufficiently serious, in all the circumstances, to warrant summary dismissal? And, obviously, that second question is never quite as open-and-shut as many employers would like it to be.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.