Friday, February 6, 2015

Canada's New Constitutional Right to Strike

The Supreme Court of Canada finally released its decisions in the major labour law cases of Mounted Police Association of Ontario v. Canada ("MPAO") and Saskatchewan Federation of Labour v. Saskatchewan ("SFOL").

And the terrain of union rights in Canada has now shifted remarkably, with far more substantial rights being interpreted into s.2(d) of the Charter, freedom of association, than ever before.

There's a long history here, and I've written about it before.

Background Reading

Fraser v. Ontario:  Is the Pendulum about to Swing Back? - May 2011 - An examination of the history of labour law and s.2(d) of the Charter, and a commentary on the Fraser case.

The Right to Strike - February 2012 - A primer on the SFOL case, following the initial decision in Saskatchewan.

Ontario Court of Appeal Strikes Down Mountie Union - June 2012 - A primer on the MPAO case, after the appellate decision in Ontario.

Mountie Union Case Update - February 2014 - A follow-up on MPAO.

Labour Law and the Charter - March 2014 - A general history of the application of s.2(d) to union activities.

A Brief History

Allow me to summarize the history as briefly as I can here.  In 1987, the Supreme Court of Canada released three decisions referred to generally as the "Labour Trilogy", which concluded that union activities were not protected by s.2(d) of the Charter.  Despite a strong dissent, the majority felt that freedom of association could not grant collective rights that were not already individual rights.

By analogy, the question was raised as to whether or not there is a constitutional right to collectively golf.  Certainly, government can restrict my right to golf as an individual, without attracting Charter scrutiny.  But if I get three of my friends together to golf, is our activity suddenly constitutionally protected?  The answer, naturally, is no.  Thus, in 1987, the SCC concluded that the Charter did not protect the right to join a union, to bargain collectively, or to strike.

Ontario's Rae government inadvertently prompted the slide away from that.  Agricultural workers in Ontario have traditionally been excepted from our labour relations regime.  The Rae government changed that, extending labour protections to agricultural workers.  They were just starting to get organized when the Harris government changed it back, removing their right to organize and decertifying the unions that had already been certified as bargaining agents for agricultural workers.  The unions challenged this, leading eventually to the SCC's 2001 decision in Dunmore.


Dunmore was the first of five (to date) important decisions incrementally changing the Labour Trilogy doctrine.  The SCC recognized for the first time that freedom of association had to include the right to make collective representations to an employer.

But there's a further problem:  The constitution typically can't be used to compel positive government action.  My freedom of expression means that the government can't take active steps to silence me; it does not mean that anyone has to take steps to facilitate my speech.  Likewise, my freedom of association means that the government can't (subject to certain limits) prevent me from joining a union, but creating a statute that protects me from private sector reprisals for doing so?  That's the kind of positive action that the Charter can't typically require.

The SCC got around that in Dunmore because it was found as fact that the statutory exclusion generated a 'chilling effect' - that telling the private sector "Unions are generally protected, but not in the agricultural sector" sent the message that agricultural unions were illegitimate, tacitly encouraging agricultural employers to take steps against unionization.

The SCC didn't set out the full scope of s.2(d), leaving that for another day, but said that at minimum agricultural workers were entitled to a scheme that protected their right to join an association and to make collective representations to the employer.

B.C. Health Services

The next case in the saga was the 2007 decision in B.C. Health Services.  British Columbia enacted health service reforms without consultation with the unions, including overriding collective agreements by statute in various ways.  The unions challenged this, arguing that there is a constitutional right to collective bargaining - in other words, that B.C. couldn't just override collective agreements and implement new ones by legislative fiat.

The SCC concluded that s.2(d) extends to a constitutional right to good faith collective bargaining.

Because the B.C. government actually actively overrode collective agreements, the Supreme Court didn't have to do any Dunmore-style dancing about chilling effects to warrant subjecting the acts to Charter scrutiny.

And because they didn't have to dance in that fashion, the lines between the government as legislator versus the government as employer became a little blurry, and the decision arguably created a positive obligation on government to take active steps to protect the collective bargaining rights of private sector workers.


After the decision in Dunmore, Ontario's government did the bare minimum suggested by the SCC, giving agricultural workers the right to join an association and make collective representations to the employer.  The unions challenged this, arguing that it still didn't give agricultural workers meaningful associational rights.  It was certainly well short of the robust protections granted to most workers under the traditional North American labour regimes (known as 'Wagner' style labour relations).

The Supreme Court, in one of their weirdest decisions I've seen in a long while, concluded in 2011 that the new statute did not contravene the Charter, because it implicitly contained an obligation for the employer to bargain in good faith.  The right to collectively bargain is a derivative right, only important insofar as it is necessary to facilitate workers meaningfully acting together toward their collective goals.

This drew a line on s.2(d) rights:  There was a right for employees to act collectively, and to be able to do so meaningfully, but no right to a particular mechanism or legislative structure for the collective bargaining - s.2(d) did not enshrine full Wagner-style labour relations protections.

MPAO and SFOL:  Background

Police aren't generally allowed to unionize.  Most police have associations that look a lot like unions, but the RCMP were under a different framework, with an association that was basically created by management itself.

So the Mounted Police Association of Ontario (among others) challenged the prohibition, arguing on the basis of Dunmore that RCMP officers were entitled to act collectively.  The Ontario Court of Appeal rejected the argument following Fraser, finding that the existing in-house system was adequate to give effect to their s.2(d) rights.

As well, Saskatchewan enacted a statute curtailing the right to strike of their civil servants, and the Saskatchewan Federation of Labour commenced a Charter challenge.

Last month, the SCC decided the MPAO case, allowing the appeal and concluding that Mounties do in fact have a right to join a union:  The existing in-house model lacked the 'choice' and 'independence' necessary for employees to meaningfully exercise their associational rights.

A compelling dissent by Justice Rothstein made a couple of potent criticisms of the majority decision:  Firstly, that 'choice' as defined by the majority is actually a component missing from domestic models in which workers have been very effective at exercising collective rights (such as, for example, Ontario's teachers).  He also highlights that Wagner-esque majoritarianism actually deprives significant workplace minorities of having any meaningful 'choice'.  Secondly, that 'independence' is a feature of the Wagner model, but not essential to the meaningful exercise of collective rights, as there are alternative models available which are just effective.

In a nutshell, Justice Rothstein argued that applying the test as set out in Fraser, that a labour relations regime would be constitutionally permissible so long as it didn't render it effectively impossible for workers to act collectively, would lead the court to dismiss the appeal, and that it was deeply inappropriate for the court to resile from a proposition of law established a mere 4 years ago.

(I wonder if he was being intentionally ironic.  In Fraser, Justice Rothstein argued that the 4-year-old precedent of B.C. Health Services was unworkable.  The majority decision in Fraser, authored by the same two judges as in MPAO, responded that Rothstein's criticism was "premature".)

The majority disagreed with Rothstein's interpretation of Fraser, but conceded that some passages in Fraser may have confused the issue.

Which brings us to the recent decision in SFOL, concluding that s.2(d) does indeed extend to a right to strike.

The question as addressed by the majority - authored by Justice Abella - is primarily framed as being whether or not the strike is truly a "necessary component of the process through which workers pursue collective workplace goals".  They answered in the affirmative, and from that everything else falls into place pretty logically.

The reason they answer in the affirmative appears to be more about deference to a broader international consensus rather than because of any actual examination of the importance of the strike to the contemporary Canadian workplace, or the consideration of alternative models.  Justice Abella highlighted the importance of the strike in the historical development of Wagner model labour relations regimes, and also its prominence in certain other countries.  Likewise, the ILO regards the right to strike as being an integral part of freedom of association (though it bears noting that the actual convention on the point to which Canada is signatory does not expressly refer to a right to strike).

The dissent by Justices Rothstein and Wagner makes a number of criticisms of the majority decision.  They argue that the breadth of the majority decision is irresponsible, with potential far-reaching consequences, that in fact there are reasonable alternatives to the right to strike that would preserve the meaningful pursuit of collective workplace goals, and that the majority's reliance on historical and international perspectives is misplaced.


On MPAO, the majority is trying to have their cake and eat it too.  Rothstein is right about the wording of the test in Fraser:
The question here, as it was in those cases, is whether the legislative scheme (the AEPA) renders association in pursuit of workplace goals impossible, thereby substantially impairing the exercise of the s. 2(d) associational right.
There is a fairly easy solution to the disconnect between Fraser and MPAO:  With the cases of B.C. Health Services, MPAO, and SFOL, the issue surrounded the government as employer, whereas Fraser and Dunmore dealt with the government's role in regulating private sector labour relations.  If one concludes that s.2(d) extends to a right to good faith bargaining, that may well tie the government into good faith bargaining with their own employees.  (Whether or not there was a failure to do so in the case of MPAO is a separate issue, perhaps.)  If the government does something that substantially interferes with the pursuit of collective workplace goals, including by its own employees, that's likely to be unconstitutional.

To my mind, however, determining the extent of protections that the government must extend to private sector employees should be a different question.  The 'effectively impossible' language that trickled down from Dunmore alluded to the impact of the omission of agricultural workers.

In other words, if we were to read the case law as saying that the Charter imposes a positive duty on government where the failure to protect a right would make the exercise of that right effectively impossible, but prohibits the government from taking positive action which substantially interferes with collective bargaining rights, then we'd have almost reconciled the results in these cases.

Instead, the majority has hedged, trying to define basic characteristics of a constitutionally acceptable labour relations regime, and in doing so - I agree with Rothstein - has gone well beyond the scope of the truly essential characteristics, and furthermore that these efforts will have the inadvertent result of making perfectly functional labour relations regimes unconstitutional.

The Right to Strike

Some of Rothstein's criticisms in SFOL resonate with me.  I'm not sure I necessarily subscribe to his dire warnings of a slippery slope or catastrophic unforeseen consequences, but when I was reading through Justice Abella's reasons, I was already thinking that the reliance on the historical context is deeply misplaced.  The formative role of strikes in the early 20th century labour movement - sometimes illegal, often not protected, often in response to an employer's refusal to recognize a union - is very different from contemporary Canada, where most labour relations regimes require an employer to recognize a certified bargaining agent, and to bargain in good faith.

A contemporary strike results in significant protections to the workers that didn't exist in the timeframe Abella writes of.  In the 1930s, if all my workers walked out of my factory, I was at liberty to refuse to take them back, and to go hire a new workforce.  Nowadays, the hands of the employer are significantly fettered when dealing with labour disruptions, and if that framework is what the majority is saying is constitutionally protected, it very much tilts the balance of power.

The international context is useful, but not, in and of itself, a reason to adopt the same conclusions that other countries have.  Justice Abella, if your friends Germany and Israel jumped off a bridge, would you do it too?

There must be a mechanism for resolving a bargaining impasse.  That's fairly obvious.  And arbitration has its limits - it isn't necessarily ideal, because it doesn't necessarily reflect all the applicable market realities.  But not being 'ideal' doesn't mean that a requirement to arbitrate instead of strike would necessarily amount to substantial interference to the pursuit of collective workplace goals.  Indeed, some of the strongest unions are in the workforces traditionally barred from striking, like police and fire.  It actually seems quite absurd to suggest that the absence of the right to strike is a substantial interference, in light of the empirical evidence that police are not at all impeded in their pursuit of collective workplace goals.

To be clear, I'm not generally a fan of 'no strike' legislation.  I've opposed movements to designate garbage collection as an 'essential service' - I think it's disingenuous (not to mention inviting a judicial response like this).  I prefer to have unions and employers battle it with regard to their natural economic bargaining power, meaning that they should be able to apply economic pressure through the use of strikes and lockouts.

But I don't think that this is functionally necessary for the exercise of freedom of association, and moreover I don't think it is workable that the Charter now appears to compel the government to enact legislation as to regulate private sector labour relations in a particular way:  That is deeply inconsistent with the principles underlying the overwhelming majority of constitutional jurisprudence (including Dunmore and Fraser), and it unduly restricts our democratically elected representatives.


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.

Thursday, February 5, 2015

Arnone v. Best Theratronics: Ontario Court of Appeal Upholds Wrongful Dismissal Summary Judgment

A little over a year ago, the Supreme Court of Canada, in the Hryniak case, modified the test for summary judgment motions in Ontario.

Even before Hryniak, wrongful dismissal cases were often well-suited for summary judgment motions.  Since then, judges have repeatedly approved of the summary judgment mechanism for such cases.

Now, the Ontario Court of Appeal has weighed in, mostly upholding a summary judgment in the case of Arnone v. Best Theratronics:
Finally, while the appropriateness of bringing a summary judgment motion must be assessed in the particular circumstances of each case, a straight-forward claim for wrongful dismissal without cause, such as the present one, strikes me as the type of case usually amenable to a Rule 20 summary judgment motion.
The Facts

Mr. Arnone worked for Best for 31 years, and occupied a role with a managerial title.  He was dismissed on November 26, 2012, a mere 16.8 months away from the date he would have been entitled to a full unreduced defined benefit pension.  As well, Best's practice was to give retiring employees a retiring allowance of a week's pay per year of service, up to a maximum of 30 weeks.

Arnone sued, seeking 24 months' pay in lieu of notice, the full retiring allowance, and the lost value in his pension.

The employer argued that Arnone was merely a front-line supervisor, and not a manager, and that this issue required a trial.  For the purpose of the summary judgment motion, Arnone conceded the point, and agreed to have the notice period assessed on the basis of his duties being characterized as supervisory rather than managerial.

Accordingly, the motion judge granted the motion for summary judgment.  But in assessing damages, things got a little bit unusual.

The motion judge appeared to regard his role as determining one primary question:  Would the reasonable notice period extend 17 months or more, such that the employer should have 'bridged' the employee to retirement?  Clearly the notice period would be over 17 months...but what the judge did with that was strange.

Firstly, he concluded that the employer had no reasonable expectation that the employee would mitigate his losses, because he was so close to retirement anyways.  This is rather bizarre, and resulted in a windfall in this case as Mr. Arnone actually had made new employment earnings during the reasonable notice period.  Secondly, the judge concluded that Mr. Arnone had no entitlement to reasonable notice past the end of 16.8 months, because at that point he had recourse to a full unreduced pension.

So the judge awarded the equivalent of 16.8 months' pay in lieu of notice, plus $65,000 to offset the reduced value of the pension, plus 30 weeks' in respect of the "retiring allowance" he would have obtained upon retirement.  The judge further noted that, but for the 'bridging', he would have assessed the reasonable notice period at 22 months.

The employer appealed, and Arnone cross-appealed.

The employer argued that mitigation earnings should have been deducted from the judgment.  The plaintiff agreed that the failure to do so was an error in law, so the employer's appeal was allowed on that ground, with the judgment being varied accordingly.

However, Arnone - while agreeing that the 'bridging' approach was an error - argued that reducing the notice period from 22 months to 16.8 was inappropriate.  The Court of Appeal agreed, and increased the reasonable notice period to the full 22 months.

The employer continued to argue that the character of employment was an issue requiring a trial.  (This seems strange, given that it was conceded by the plaintiff.  It amounts to:  "Yes, the motion judge accepted that our version of the facts was accurate, but we still want to present them in a trial format anyways.")  The Court of Appeal agreed with the motion judge's treatment of the issue, distinguishing this case from the Thorne case relied upon by the employer.

As well, the employer challenged Arnone's entitlement to its customary retiring allowance, arguing that it's only available for 'retirement', not for restructuring dismissals.  However, without any policy making that distinction clear, the Court of Appeal regarded the retiring allowance as amounting to an implied term of the employment contract.

The employer also challenged the compensation for the lost value in Arnone's pension, but really, that's fairly straightforward law.  This is something for employers to pay attention to:  If the reasonable notice period crosses entitlement thresholds for defined benefit pensions, the costs of dismissal without notice can be severe.


There aren't really many surprises in the appellate decision.  The bridging approach was clearly problematic, both in reducing the notice period and in disregarding mitigation earnings, so the Court of Appeal's reversal of that is not particularly surprising.

Furthermore, the contention that this was a case requiring a trial, on all the facts, appears to have been a very long stretch, in light of the Hryniak decision.  I might be more interested in knowing what the result would have been had character of employment not been conceded.  Because frankly, between Hryniak and the Court of Appeal's view in Di Tomaso that character of employment is of "declining relative importance", my view is that it's a rare case that character of employment is an issue requiring a trial.  The employer relied on Thorne, which was a pre-Hryniak case from the Superior Court, and the Court of Appeal noted:
Also, the jurisprudence on the Bardal factors not only stresses that no one factor should be given disproportionate weight, but more recently indicates that the character of employment is a factor of declining importance in the Bardal analysis.
The quotation at the top, about straight-forward wrongful dismissal claims usually being amenable to summary judgment, immediately follows this point, strongly suggesting to me that sending a wrongful dismissal action to trial over a dispute as to character of employment will usually not be appropriate.

The retiring allowance issue is a little more interesting, though, as it's something on top of reasonable notice.  It makes sense that he would still be entitled to it.  Suppose that he was given 22 months' actual notice:  Even if one assumed that it was necessary for an employee to 'retire', what would have stopped him from doing so on the last day of the notice period, thus earning an additional 30 weeks' pay?  So yes, if the employer had complied with its obligation to give notice, then he would have gotten 22 months' notice plus an additional 30 weeks' pay.

I can't help but wonder if that's why the motion judge decided to 'bridge' to retirement in the way that he did, because he felt that 22 months plus 30 weeks was in some way double-recovery, but if one regards him as retiring when he's eligible, then 16.8 months plus 30 weeks seems like a far more palatable conclusion.


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.

Monday, February 2, 2015

Majewski v. Complex Services Inc.: Plaintiff Wins Wrongful Dismissal Trial...Again

Two years ago, I wrote about a Divisional Court decision in the case of Majewski v. Complex Services Inc., involving a card dealer dismissed, allegedly for cause, who sued in wrongful dismissal.  He won at trial, with the Deputy Judge concluding that just cause was not established, but the Divisional Court found that the trial judge had made critical errors, and sent the matter back to the Small Claims Court for a new trial.

The trial took place over 5 days in December 2013, June 2014, and January 2015, and the decision was recently released.  The result:  The plaintiff won again.

The case was before Deputy Judge Marshall, a Niagara Falls lawyer.  I've had the pleasure of appearing before him in a settlement conference, and found him to be a relatively knowledgeable Deputy Judge in terms of employment law (though that may have something to do with the fact that, when I was before him, this trial was already ongoing).

The plaintiff's lawyer was Margaret Hoy, a prolific employee-side lawyer on the Niagara peninsula who has litigated no fewer than five matters against this particular employer (and whose other credits include the unusual case of Ludchen v. Stelcrete, which highlighted the need for thorough and timely investigations).  The defendant used Hicks Morley for the Divisional Court appeal, but for whatever reason - my guess is cost - decided to have in-house counsel, Paul Pingue, handle the re-trial.

The Facts

This is getting to be a long saga.

Majewski began working at the casino in the late 90s, and was dismissed in August 2005.  The culminating incident involved a confrontation with a co-worker, Maracle:  Majewski had a migraine, and wanted to put his name down on an "E/O list" - basically a sign-up sheet to be sent home early if workload allows.  Maracle had the sheet in hand, but was bringing it to another part of the building, and wouldn't let Majewski see it.  Majewski then called Maracle a "f***ing a**hole" (and/or a "f***ing prick").

Maracle complained to management, management investigated, Majewski admitted the comment, argued that he hadn't done anything really wrong, and they dismissed him for cause.

The defence primarily turned on a 'cumulative cause' argument, because of Majewski's disciplinary record.

In 2001, Majewski had a couple of incidents, first losing his temper in the break room, and later making an offensive comment to a casino patron that 'men don't wear pink shirts'.  After the 'pink shirt' incident, he received a warning that further incidents could lead to dismissal.

The next disciplinary notice was more than 2 years later, in November 2003:  Playing for the Casino Niagara hockey team, Majewski used abusive language toward the referee (another co-worker), and was ejected from the tournament.

Next up:  In October 2004, Majewski was upset with a patron who had been blowing cigar smoke in his face for 20-30 minutes.  He asked the individual to stop, and the person's response was "f*** you".  Majewski sought the assistance of his supervisor, who didn't help, and then brought in the Pit Manager to resolve the situation.  However, while the Pit Manager was discussing the matter with the patron, Majewski heatedly interjected numerous times, and was disciplined on the basis that he "has to let his supervisors handle these types of situations".  The disciplinary noticed threatened "progressive counselling" in the event of "further situations like these".  However, management seemed to be under the impression that Majewski was clearly warned that further confrontations would lead to termination.  After the Maracle incident, relatively minor though it was, they basically concluded that Majewski was irredeemable.

It sounds like Majewski has a bit of a temper.  But aside from these incidents, he had, by and large, positive reviews.  It also bears noting that the plaintiff led evidence that there's a culture of swearing among casino employees, particularly off the floor.

The Judge's Findings

Deputy Judge Marshall accepted the evidence that there was a culture of swearing, but noted the important difference between swearing, simpliciter, and swearing at someone.  He concluded that Majewski's conduct toward Maracle was disciplinable - perhaps even seriously disciplinable, in light of his history - but it didn't rise to the level of just cause, even considered together with his disciplinary history.

He accepted that the 'cigar smoke' and 'pink shirt' incidents were severe, because they involved inappropriate interactions with casino patrons.  The hockey incident was only marginally connected to the workplace (and tempers flaring in a sporting event is hardly unexpected...the decorum is a little different than that of a workplace).  The other two incidents (including the Maracle incident) were in the 'back', not in front of casino patrons, and accordingly were objectively less serious.

The Deputy Judge rejected the contention that there was any clear 'final warning' given, and found that the incidents did not amount to the employee doing something "fundamentally or directly inconsistent with the employee's obligations to his...employer".

He made two interesting remarks that I intend to touch on, however:  Firstly, he queried whether or not the "last chance" doctrine reflects the state of the law, and concluded that it doesn't:  One still needs to look at the objective seriousness of the Maracle incident in its full context.  (The wording suggests to me, though it's not entirely clear, that even had a 'last chance' warning been given, it wouldn't have been enough in the circumstances.)

Secondly, the Deputy Judge remarked that, had the Maracle incident and cigar smoke incident been reversed in time, it may have given the employer a stronger argument for cumulative cause.  (Not necessarily saying it would have succeeded, however.)

As I noted in my previous entry, quantum was no longer in issue:  It was all or nothing, $25,000 or $0.


It's a good decision, and it very closely parallels the findings of the original trial judge.
I very much agree with Deputy Judge Marshall's assessment of the law.  Giving an employee a clear warning that further misconduct will lead to an important step for generating just cause, but the analysis doesn't necessarily end there.  One must still examine the objective seriousness of the misconduct.

It's not that different from the issue with 'zero tolerance'-type policies.  Remember Plester v. PolyOne Canada Inc., where the employer had a series of "Cardinal Rules" for safety purposes?  Nonetheless, one still needs to look at the full context and determine whether or not dismissal is objectively warranted.

Likewise, I think that Deputy Judge Marshall is correct to suggest that a reversal of the disciplinary incidents could have made a difference.  Cumulative cause is not a cup that gets incrementally filled up - the 'straw that broke the camel's back' is a very difficult concept in employment law.

Indeed, I was a little surprised at first at how seriously the 'cigar smoke' incident was regarded.  Interjecting between a manager and a customer is a problem, certainly disciplinary, but it's something that I would expect to result in coaching at the first instance.  However, on a full read of the decision, it appears that the employer regards customer service as paramount - essentially, since all they're selling is service, it needs to be good.  So on the basis of this element of workplace culture, otherwise minor incidents involving patrons are treated very seriously.  That's fine.  But that inflation of seriousness won't translate at all for conflict between co-workers.

And looked at in that light, it's fairly straightforward:  Yes, Majewski had a bit of a history of losing his temper.  He'd had a couple of incidents on the floor, which were disciplined seriously.  But incidents 'in the back' aren't quite the same thing, and he couldn't be expected to see them as being the same thing...and before the Maracle incident, it had been over 4 years since his previous incident 'in the back'.

That's not to say that the Maracle incident could never amount to just cause.  But you would need clear warnings dealing with comparable misconduct.  By analogy, I'm entitled to insist that my employees show up on time.  Imagine the following scenario: an employee has frequently been over an hour late, and I engage in progressive discipline up to the point of threatening termination in the event of further lateness.  The employee is then punctual for a couple weeks, then one day shows up 10 minutes late in poor weather.  Am I justified in dismissing him for cause?  Probably not.  By contrast, change the scenario to one where the progressive discipline related to shorter periods of lateness - i.e. where he was routinely 10 minutes late.  In that scenario, it's a lot easier for an employer to make this pitch:  I'm entitled to expect my employees to be punctual, and progressive discipline wasn't working; despite my clear directions and warnings, the employee failed to take appropriate measures to get to work on time..  Minor misconduct is hard to turn into just cause, but persistence in minor misconduct despite discipline can amount to insubordination.

There's also an interesting commentary about the impact of the investigative meeting - the Deputy Judge put little weight on Majewski's conduct in that meeting, arguing with management about his conduct, which the employer regarded as insubordinate.  The Deputy Judge felt that having a frank discussion about the conduct is not disciplinable:  "I see no reason why parties cannot have a robust meeting on a heated topic, ultimately agreeing to disagree....A dealer needs to respect management, no[t] cower to it."  He got that right as well, in my respectful opinion, and it's an important distinction.  Refusing to accept responsibility for misconduct can be aggravating, perhaps increasing the seriousness of the conduct (as opposed to, say, apologizing), but will not in and of itself amount to insubordination.  If I sincerely think that an action was justified, then there's absolutely nothing wrong with me trying to make my case to the employer.  (Of course, there are limits to the way in which I make my case.)  At the end of the day, if neither one of us persuades the other, then management has the final word:  You may think that you were justified; fine, you can think whatever you want, but it's going in your file regardless, and we expect you to hold to a higher standard in the future.

The result is right.  The employer can't be faulted for wanting Majewski gone.  If he really couldn't control his temper, it was probably just a matter of time before another incident on the floor.  But just cause isn't really about prevention - it's about the seriousness of the misconduct in which the employee has engaged.  And the decision to get rid of an employee because of what he might (or even 'probably will') do in the future, while a reasonable business decision, has to come with notice or pay in lieu.

That said, this case raises certain concerns about proportionality and access to justice.  It has been almost 10 years since the dismissal.  The second trial, on its own, was five days.  For a Small Claims Court trial, that's insane.  The value of the legal time going into that trial on each side no doubt rivalled or exceeded the value of the claim.  That's without considering the costs of the Divisional Court appeal, or the first trial.  And since the Small Claims Court is limited in its ability to award costs, that makes litigating a 5-day trial rather uneconomical for both sides.


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.