"Sometimes a swimming pool is just a swimming pool" - Blue Mountain wins OHSA appeal

Nearly two years ago, I posted about a Divisional Court decision which concluded that Blue Mountain Resorts Limited was obligated to report to the Ministry of Labour after a guest died in an unsupervised swimming pool.

The consequences of that were expansive:  Anytime there is any critical injury or death in any place where anybody is employed - that is, pretty much everywhere - the employer is obligated to report to the Ministry of Labour, and to preserve the injury site (ceasing operations) until an investigation is completed.

Blue Mountain appealed, arguing that this was an unreasonable interpretation of the Occupational Health and Safety Act.  In an average February, Blue Mountain has 16,000 visitors on a Saturday and 10,000 on Sunday, and they have a below-industry-average ski incident rate of 1.5 per thousand visitors.  So, 39 incidents on an average weekend in February, which may require the slopes to be shut down until the Ministry investigates and clears the employer to reopen.

The Court of Appeal allowed their appeal, finding that such an expansive view of the OHSA is unreasonable, capturing incidents with no connection to the objectives of the Act.  According to the Court of Appeal, the reporting obligation is only triggered where:

1. a worker or non-worker is killed or critically injured;
2. the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work; and
3. there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace.

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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.

Isolated Safety Violation: Not Just Cause

The Court of Appeal recently released a decision in Plester v. PolyOne Canada Inc., a wrongful dismissal case in which the employer alleged just cause.

The Facts

Mr. Plester worked for the employer for 17 years, and was a supervisor at its plant in Orangeville for the last six years of his employment.  The company takes safety very seriously, has a good safety record, emphasizes a strong culture of health and safety, and particularly emphasizes what it calls "Cardinal Rules" for safety, including that any machinery being repaired be locked out and tagged.  Another Cardinal Rule was that violations be reported immediately.

Bear in mind that the Occupational Health and Safety Act places serious requirements upon employers to be proactive about health and safety.  This is a company that clearly takes those obligations to heart.

Plester had a strong work history - he was a good employee, hard-working, and good at fixing the machines.  He had minor disciplinary events over his 17 years, all pre-dating his promotion to supervisor, aside from a reprimand just before the incident in question for 'inappropriate comments to a co-worker'.

As a senior and experienced employee, Plester knew very well about the safety requirements, and especially about the Cardinal Rules.

On September 23, 2009, Mr. Plester was having a bad day.  There had been a series of equipment failures, and the team he supervised wasn't working well together.  He went out to the floor to help get some malfunctioning machines up and running while other employees were on break.  The original trial decision has a fair bit of technical jargon about the parts of the machines he was working on, but I'll try to keep it simpler:  He decided to vacuum the dust from the bottom of the machine to begin with, and one of his subordinates 'got in his face' about locking out the machine first, and he answered that he didn't need to in order to vacuum.  As he was working away, two of his subordinates were just standing there chatting, which added to his frustration, and he decided to just keep going himself, and he removed the internal screens of the machine, forgetting that he hadn't locked it out.

Cleaning behind the internal screens involved clearing 'pellets' falling from an overfill bin; Plester called over a subordinate to help with the overflow.  Afterwards, he went to restart the machine and realized that his subordinate had put a lock on the machine, at which point he realized - to his embarrassment - that he had broken a Cardinal Rule.

(The evidence doesn't suggest that anyone was ever in real danger - if he reached behind the screens, that would be hazardous, but he didn't believe that he had done so, and neither did the other witnesses present.)

He didn't report it immediately.  He intended to report it, but there was a visiting Vice President from Cleveland the next day, and he thought it was best to wait until after the visit to report it to management.  By the next morning, however, his subordinates decided to report the incident, in accordance with their own obligations.  Plester was sent home on an investigative suspension, and later informed of the decision to dismiss him.

The Trial Decision

The trial decision is interesting.  The trial judge, Justice Wein, is an experienced judge...she started as a criminal lawyer, but judges quickly develop a broader base of experience.  Nonetheless, it appears that her wrongful dismissal experience is limited.  Twice in the decision, she asserted that her role was not to hear an appeal of the company's decision to dismiss or to evaluate the company's decision-making processes, but rather to determine whether or not dismissal was the appropriate response.  Which is good, because that's right, but I'm not sure why she felt the need to give such assurances, if she was not coming at it from a different perspective.  Nonetheless, her different perspective meant that she did comment on the employer's investigation, and her observations were interesting, which I'll reproduce below.

The test for just cause ultimately tracks to the Supreme Court's McKinley v. B.C. Tel decision, but is generally stated fairly broadly as a contextual analysis of the seriousness of the misconduct.  Justice Wein's statement of the test is more detailed than usual:

The court must first determine the nature and extent of the misconduct.  Secondly the court must consider the surrounding circumstances for both employer and employee.  Finally the court must determine whether dismissal is warranted as a proportional response:  is the misconduct sufficiently serious that it gives rise to a breakdown of the employment relationship.

The contextual factors are important.  The misconduct was serious, and aggravated by the serious approach to health and safety taken by the company and by Plester's position of responsibility.  The failure to report added to the seriousness of it.

However, the trial judge's analysis of proportionality took a strange turn, looking strictly at the employer's record of how they responded to comparable infractions.  This is not irrelevant.  In the appropriate case, one might argue that previous tolerance of similar infractions amounted to condonation, or that the objective seriousness of misconduct is lesser if the employer was known not to take it so seriously.  But it's hardly the central element of the test.

The trial judge relied on a prior comparable incident where the Operations Manager, Mr. Glassford, had apparently violated a Cardinal Rule in July 2009 in a similar manner.  A mechanic observed it and, in accordance with his obligations, reported it to his supervisor, Mr. Plester.  Plester, in turn, discussed the matter with his own supervisor...Mr. Glassford.  Who shrugged it off and presumably took no further action.

In light of the "Glassford Incident", the trial judge concluded that dismissal was not the appropriate response, and awarded 14 months pay in lieu of notice.

The Court of Appeal

The trial judge's analysis of proportionality was wrong.  The employer argued that putting such an emphasis on the Glassford Incident, which had never come to the attention of Glassford's supervisor, was wrong.  The Court of Appeal didn't appear to put much stock in the argument that the employer didn't know about it, but nonetheless found that the trial judge's reliance on the incident was misplaced.

However, in a brief decision, the Court of Appeal concluded in any event that, on the factual findings of the trial judge, and in light of the various mitigating factors in the case (i.e. that he was a long-service employee with a solid work history, and that nobody was injured and nobody else was put at risk), dismissal was not appropriate.  There were lesser measures the employer could have used to appropriately respond to the misconduct, serious though it was.

My Thoughts

I agree with the Court of Appeal that the trial judge's analysis was wrong, but I think there's more to be said of it:  The Court of Appeal looked at the case the way that the trial judge should have - an objective weighing of the seriousness of the misconduct in context, bearing in mind the mitigating factors.  How the employer responded previously to similar misconduct is not irrelevant, but not determinative.  The fact that an employer may have a long and well-established history of summarily firing an employee on the first instance of being five minutes late for work does not make it just cause.  The fact that a rule may be "Cardinal" is important, but does not decide the issue.

However, the Glassford Incident may not be irrelevant, either.  Glassford represented company management.  If my manager technically breaches a safety rule and then, when I discuss the matter with him, tells me the technical breach isn't a big deal...it seems to me that, if I proceeded to treat technical breaches of safety rules as unimportant, the employer would have a hard time holding me to account for it.  I have a clear directive from management on the minimal seriousness of such conduct.  The fact that Glassford may not have accurately reflected head office's view on the point...well, that's beyond my pay grade.

I otherwise like the trial judge's commentary, both in form and substance.  There's a definite sense of her being an outsider looking into employment law, which results in an unusually detailed treatment of some of the legal questions.

Justice Wein's Comments

Firstly, as promised, her comments on workplace investigations:

"There are a number of procedural improvements to the process that would immediately be apparent to anyone schooled in the basics of due process."

1. Keep all original notes.  Do not summarize and shred original handwritten notes.
2. Interview witnesses separately.
3. The initial report in this case, by already using the high-threshold language of 'wilful misconduct', suggested tunnel vision on the part of the writer.
4. The initial report was essentially the same as the initial draft, suggesting that the decision was reached without full discussion or contemplation.
5. No review of comparable events occurred in the report.
6. "[O]nce the possibility of dismissal for cause was seen as a potential outcome, Mr. Plester should have been advised, and given an opportunity to give a more complete statement.  The extent of his evidence at trial was not known to management, so the potential for a different outcome existed, had he been re-interviewed after the initial discussion."

None of these are legally mandatory - strictly speaking, a non-bargaining unit employee is not entitled to procedural fairness leading up to dismissal.  But these are good practices nonetheless, and there are cases where improper investigations have gotten employers into a lot of trouble.

The Employment Standards Act entitlements

It ended up being moot, with just cause not existing, but there was an alternative argument about whether or not Plester would nonetheless be entitled to notice and severance pay under the ESA.  (Which would likely have been in the ballpark of 25 weeks...so, still significant.)  This is a matter that I have discussed before on this blog:  It has long been recognized by the OLRB, and relatively recently by the Courts, that the standard of misconduct necessary to disentitle one to his or her ESA minimums ("willful misconduct") is not the same as common law just cause.

Both counsel seemed to be slightly bemused by the recent authorities that distinguish between the definition of just cause and willful misconduct.  In my view, however, the distinction is quite obvious:  Just cause involves a more objective test, albeit one that takes into account a contextual analysis and therefore has subjective elements. Willful misconduct involves an assessment of subjective intent, almost akin to special intent in criminal law.  It will be found in a narrower cadre of cases:  cases of willful misconduct will almost inevitably meet the test for just cause but the reverse is not the case.

Hard to put it much better than that.  The employment law bar is largely struggling with this distinction, finding it hard to accept how an employee who engaged in such serious misconduct as to meet the high threshold of just cause might nonetheless be entitled to potentially significant entitlements under the ESA.  And Justice Wein, a former criminal lawyer, doesn't see why we should be confused about such a straightforward distinction.

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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.

Dismissed Card Dealer Loses Appeal in Just Cause Case

There was recently a Divisional Court appeal decision from a Small Claims Court judgment in Majewski v. Complex Services Inc.:  At the Small Claims Court, Mr. Majewski was found to have been dismissed without cause and awarded 8 months pay in lieu of notice.  (This brought his award to the maximum jurisdiction of the Small Claims Court - $25,000.)

Mr. Majewski was a card dealer at a casino in Niagara Falls for over 8 years.  On August 25, 2005, he had a dispute with a co-worker, Mr. Maracle, in which he called Mr. Maracle profane names.

The central question was whether or not, in light of Mr. Majewski's prior disciplinary record, this constituted just cause.

Here is his disciplinary record:

1. In November 2000, he had received a verbal warning for three absences over the year.
2. On April 12, 2001, he was suspended for a day for losing his temper in the break room, banging on the furniture and using "expressive tones" towards a co-worker.
3. On July 21, 2001, he was suspended for a day for inappropriate and profane language in front of guests and associates.
4. On November 12, 2003, he received a verbal warning for 'verbal abuse' of a referee in a hockey game for the casino team.  (The referee was a co-worker.)
5. On October 6, 2004, after he was involved in a dispute with a guest, he 'interfered' with a pit manager.  Initially, he was suspended for a day, and the disciplinary record reflected use of profane language; however, he disputed this version of the facts, and the reference to profanity was removed and the punishment was reduced to a written warning.

I don't have the benefit of having the trial judge's reasons, so I can only parse them from what the Divisional Court reproduced, and the decision appears to be based at least as much on what is missing as what is there.

The "Central Issue" in the Case

A trial judge in a wrongful dismissal matter is required to analyze whether dismissal is appropriate to the nature and seriousness of the misconduct in the context of the employment relationship.  The trial judge apparently did not articulate the test expressly, and while that is not required, the Divisional Court concluded that he did not engage in the necessary analysis either.

However, there were other comments by the trial judge that the Divisional Court felt illustrated a misapprehension of the central issues in the case.  For example:  "This issue of Mr. Majewski's ability to deal with patrons and their rudeness was central to the case."  He then went on to observe that the incident leading to the termination had nothing to do with patrons, and was out of earshot of them, and furthermore that Mr. Majewski didn't have appropriate support from management for dealing with difficult patrons.

By contrast, the Divisional Court felt that the central issue was the plaintiff's insubordination and abuse of his fellow employees.

One can easily imagine an employer making either argument for just cause, in certain circumstances.  Clearly inappropriate conduct towards customers can quickly lead to just cause.  Inappropriate conduct towards co-workers, while perhaps on a lower scale, can also be quite serious.

In most cases, it would be up to the employer to select one or more just cause arguments to advance.  In Small Claims Court, it is often left to the trial judge to parse the evidence to figure out, for him- or herself, what the legal issues are.  This is particularly challenging since deputy judges are practicing lawyers, with their own areas of expertise.  In a relatively specialized area such as employment law, this is problematic - unless the deputy judge practices employment law, they may not know much about it.

Whether or not the parties had counsel at the Small Claims Court (I would expect that the employer did, at least), a deputy judge is quite accustomed to developing his or her own read of the issues in a case.

If one could point to some place in the record - in the termination letter, in the employer's evidence, or in the employer's submissions - where the dismissal was explained or justified by concerns over Mr. Majewski's treatment of customers, then the trial judge's analysis, minimizing those concerns because the final incident didn't involve customers, would be appropriate.  Even otherwise, I'm not sure that the comments are quite as out-of-place as the Divisional Court thinks.

The Divisional Court said this:

Reading the reasons as a whole I cannot say that the judge applied the correct legal test for liability. Rather it appears to me that he decided that the plaintiff was justified in acting as he did because he did not have confidence in his supervisors and that conduct out of the presence of customers was not of great concern to the employer. (In fact, much of the discipline that the plaintiff received concerned incidents out of the presence of customers.)

The parenthetical remark at the end is important.  There is no question in my mind that, in most workplaces, swearing at a customer will be worse than swearing at a co-worker.  (Of course, both are deserving of discipline, but there's a difference in gravity.)  It's clear that Mr. Majewski did not consider the final incident to be particularly serious because it didn't involve customers, and - in light of a disciplinary record which primarily involves inappropriate conduct toward customers - one cannot fault him for thinking that.

The trial judge did remark about the plaintiff's view that his misconduct did not warrant dismissal, and the Divisional Court said that was "beside the point."  Sort of true, but not entirely.  A large part of the purpose of warnings is to ensure that an employee is aware of the consequences of further misconduct.  If you knowingly put your head on the block, it's much harder to feel sorry for you when the axe comes down.  If Mr. Majewski was unaware that swearing at Mr. Maracle was serious misconduct which would warrant dismissal, and - importantly - if this unawareness can be said to have been reasonable, then that is absolutely relevant to whether or not dismissal was the appropriate response.

The Misapprehension of Evidence

The employer's evidence, despite some conflict on the point, included evidence to the effect that, in the 2004 discipline, Mr. Majewski was cautioned that this was his 'last chance'.  Mr. Majewski acknowledged in his evidence that something "on that line" may have been said.  The trial judge, however, found that nothing of the nature had been said, relying on what he described as Mr. Majewski's evidence that he "did not agree with [the manager's evidence] in terms of a verbal warning that any further incident would result in termination".  This was a misapprehension of the evidence.

This is important, because a clear warning that termination would result from further misconduct is critical in cases such as this.

That being said, on what of the evidence is described in the Divisional Court's decision, I wonder if it would have been open to the deputy judge to find that the warning given was of sufficient clarity and impact to meet the high standard set for such things in the established jurisprudence.  Particularly coupled with a written warning which included a caution that "further situations like these will lead to progressive counselling", a termination warning would be, at best, a mixed message.  And then, when combined with the fact that the 2004 incident involved a customer, and the termination incident did not, it weakens the impact of the discipline further.

The Divisional Court's Decision

The matter was sent back for a second trial as to liability.  The appeal of the damage award was unsuccessful - the second trial will officially be all or nothing:  If Mr. Majewski wins, he'll get $25,000 plus costs; if he loses, he'll get $0, and a costs award against him.  Barring a settlement, those are the only two possible outcomes.

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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.