Tuesday, August 14, 2012

Between a Rock and a Hard Place

There's an interesting recent case from the Superior Court, Barton v. Rona Ontario Inc., involving a dismissed manager who was fired for just cause after compromising safety in favour of human rights.

The Facts

Barton was an assistant store manager at Rona's Barrie location, responsible for managing 140 employees.

In April 2009, a training program was scheduled in the store's training centre, and one of the employees, Kai Malmstrom, wanted to take the course.  Management wanted him to take the course, too.  The one problem was...well, physics.  Malmstrom was confined to a wheelchair, and the training centre was on the upper level of the store, and not wheelchair accessible.  The official plan was that, after the training session on April 17th, one of the attendees to the training session would provide training to Malmstrom on the ground floor.

Malmstrom wasn't happy with this.  He wanted to join his colleagues on the second floor, and take the training directly.

So Malmstrom and his colleague Mr. Stirk, came up with a plan to get Malmstrom upstairs using an order picker.  The essentials of the plan involved strapping Malmstrom's wheelchair to a skid and lifting him up to the second floor, and bringing him back down the same way.  On the evening before the training session, Malmstrom suggested this plan to Barton.  Barton, at the time, was in the middle of coordinating a major event in the store, and while he did not expressly permit the plan, he failed to expressly prohibit them from carrying out their plan before he was called away.  The evidence on the conversation was conflicting - the trial judge accepted that Barton reminded Malmstrom of the plan to have him trained later, but also accepted Malmstrom's evidence that Barton seemed agreeable to the plan, despite Barton's evidence that he tried to express his discomfort with the idea.

The next morning, as they began to carry out their plan, the Operations Manager, Clint Marsh, asked them what they were doing, and his evidence was that he prohibited them from doing so.  Then he was called away, and they continued nonetheless.

The plan proceeded essentially without incident, except that Stirk wasn't wearing the appropriate safety equipment when bringing Malmstrom back down.  Nobody was injured.  Nonetheless, it was an egregious safety violation.

Gierak, a Human Resources Advisor, conducted an internal investigation into the incident, and there were significant excerpts from her notes reproduced in the decision.  Both Marsh and Barton acknowledged they would have done things differently if given another chance - i.e. they would have stopped it (which is strange to me, given Marsh's evidence that he instructed them not to proceed).  They also noted that, had they not been confident that it would proceed safely, they would have stopped it.

It appears that, given Malmstrom's impression that Barton was okay with the plan, he left Stirk with the impression that Barton had given permission, who conveyed that same impression to Marsh.

Gierak's report did not recommend termination.  Up until her discovery that Stirk had foregone the appropriate safety equipment herself, she wasn't sure that there even was a safety violation, and felt that everyone's actions to get Malmstrom to the training session were, while perhaps ill-advised, understandable.

Nonetheless, following a second investigation by a second HR professional, management terminated Stirk and Barton for cause, and disciplined Marsh.  There is no indication in the decision as to whether or not Malmstrom was disciplined, nor any of the others involved.  (Apparently, several people assisted in the process of getting Malmstrom upstairs.)

The Decision

The question in this case was whether or not Barton's failure to stop the lift constituted just cause for termination.

Rona has very clear policies regarding safety protocols, including that immediate dismissal may be called for in specific cases of safety breaches, including deliberate acts that could endanger safety, riding on moving equipment, and deliberate violation of safety rules.

Furthermore, the Court accepted the proposition that managers are held to a higher standard than non-managerial employees.

The judge is not at all critical of Rona's decision to terminate Barton.  There were many 'good and valid' business reasons to terminate an employee in that context.  "In this case, for example, Rona might have formed the view that Mr. Barton lacked the character required of a senior management person and did not want him back.  Rona could have decided that, given the large number of store staff who witnessed the event and assisted in the lift and the descent, it was necessary to make an example of him...."

However, these reasons do not necessarily "pass muster as just cause".  The Court rightly notes that its assessment is simply whether or not the misconduct in and of itself justifies termination.  In this case, there is no reason to suggest that discipline would have been inadequate to preserve the relationship as between Rona and Barton.  No reason to think that a stern warning would have been insufficient to prevent Barton from engaging in such misconduct again.  His specific acts were not so egregious as to warrant termination, and progressive discipline would have been appropriate.

My Thoughts

This is a close case in some ways, but I believe the Court got it exactly right.  All Barton did was fail to prohibit a plan brought to his attention in a brief conversation during which he was otherwise occupied, and which was carried out the next morning before he arrived at work.

He probably should have said "Don't do it", and it's probably culpable misconduct that, as a manager, he failed to do so.  But just cause is a high threshold.  And it's interesting that Rona rolled the dice on this one, because it just so happens that the lawyer who represented Rona was one of the instructors for my law school employment law class, back in the day, where I was taught how high a threshold just cause is.  (I recall one of the instructors relating an anecdote from Court where a judge queried whether or not just cause still exists at all.)

One of the things which really surprises me about this decision, though, is how little discourse there was on the human rights aspects of the case.  The parties were clearly aware that the incident was simply an effort to get Malmstrom access to the training facility, and Barton himself was of the view that some blame lay with the lack of accessibility in the store.

It's hard to fault Malmstrom for wanting to attend the seminar in person.  Getting instruction from somebody who happened to attend the seminar is hardly a substitute for having gotten professional instruction in a structured classroom.  It seems like a discriminatory result.

Suppose, for a moment, that the lift could have been and was completed in a way that reasonably controlled for all risks involved.  (Even though not all safety protocols were observed during the descent, that's hardly Barton's fault:  He wasn't even there at the time, and even had he given express permission one would reasonably infer that it was subject to ordinary safety protocols being observed.)  A Rona safety policy saying "Don't do it" might not be sufficient to justify rejecting the plan; you would have to carefully and contextually examine the risks, figure out why the particular policy is in place and whether or not the risks it seeks to avoid can otherwise be accounted for.  We don't know what Rona's human rights policy says, but there's a good chance that it is also disciplinable for managers to engage in discrimination.

And also suppose that Barton hasn't memorized all such policies.  This is a fair supposition, I think.  Given an opportunity to review the safety policies and the human rights policies, and the specifics of the request being made, there may have been a right answer and a wrong answer within the context of Rona policy, but in the absence of such an opportunity to review, we're looking at two answers which could be wrong.  This is not a scenario where you can necessarily err on the side of caution, because there is no cautious approach.

Barton doesn't want to refuse the request, because he sees it as his responsibility (and Rona's responsibility) to accommodate Malmstrom.  He may be wrong.  It may be that the plan was inherently unsafe in such a way as to justify refusal, and it may also be that creating an access route or a ground floor training facility would amount to 'undue hardship', which would mean that Malmstrom would have no legal right to be so accommodated.  But this is a complex and nuanced human rights question, which lawyers could certainly and reasonably disagree about.

At minimum, this mitigates the severity of his failure to instruct Malmstrom not to carry out the plan.  We know that he was busy with other matters, he wasn't able to complete the conversation, and he didn't have an opportunity to return to the matter to finish dealing with it.  That he could reasonably and in good faith believe that his decision was to protect Malmstrom's human rights makes it difficult to argue that the decision, even if wrong, could be such misconduct as to warrant summary dismissal for cause.

But it's more than that:  Refusing to discriminate against somebody is a protected act under the Human Rights Code.  The law on this point is not particularly well-settled either - it is reasonably clear that a good faith complaint of discrimination will give rise to reprisal protection, even if the original complaint was not founded.  Imagine, for example, that I was denied a promotion, and I felt in good faith and reasonably that the denial was due to my religion, and I made a complaint accordingly, and was fired for it.  Even if I cannot prove the actual discrimination (and indeed, even if the denial of the promotion could be shown to not be discriminatory at all), the termination would still likely be an unlawful reprisal.  It is not so clear that the same principle applies to people refusing to breach another's Code rights, but it's arguable.  So if refusing to allow Malmstrom to attend the seminar would be unlawful discrimination (which could be argued), then not prohibiting him from doing so would likely be Code-protected.  Alternatively, even if it wasn't unlawful discrimination, the failure to prohibit him from doing so based on the good faith belief that Malmstrom was entitled to accommodation might still be Code-protected.


I'm pretty sympathetic to Barton, but that sympathy arises from several places, and I wouldn't want to be taken as suggesting any sort of general proposition that safety ought to be compromised in favour of human rights.

Firstly, he wasn't there.  He discussed the matter the night before in what sounds like a fairly cursory manner, and didn't prohibit it.  That amounts to, at best, lukewarm complicity.

Secondly, not being there, he can hardly be faulted for the fact that not all safety precautions were taken.  He was dealing with people well-qualified and trained in the use of the equipment, and ought reasonably to have presumed that these folks would take all safety precautions.

Thirdly, nobody was injured.  Had there been injuries, that could be a whole different matter.

Fourthly, it was Malmstrom's idea in the first place.  Inherently unsafe, perhaps, but most of the risk was to Malmstrom, and he would have been aware of such risks.  (If it was the employer's idea, pressuring Malmstrom to engage in something unsafe as an alternative to reasonable accommodation, it could be a very serious problem under both the Human Rights Code and the Occupational Health & Safety Act.)

Fifthly, it was necessitated by an unfortunate absence of accessibility, which means that the employer probably has to shoulder at least some of the blame, and can't just point fingers at Barton.

In general, I'm inclined to believe that Barton was probably wrong, but not even at the longest stretch could I imagine this constituting just cause.


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.

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