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:
- In November 2000, he had received a verbal warning for three absences over the year.
- 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.
- On July 21, 2001, he was suspended for a day for inappropriate and profane language in front of guests and associates.
- 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.)
- 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.
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.