An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Friday, 1 February 2013

Breaking Cardinal Rule Not Just Cause


The opening words of the trial judge’s reasons for decision in Plester v. Polyone Canada Inc., 2011 ONSC 6068 (CanLII), affirmed by the Court of Appeal for Ontario earlier this week (2013 ONCA 47 (CanLII)) might leave some employers with the impression that the case would be one where the court would find just cause for dismissal: “Mr. Plester made a serious mistake at work.” Those impressions would be mistaken.

In a decision released in late November 2011 and affirmed on appeal on January 28th of this year, the Honourable Justice Bonnie J. Wein held that the breaking of an employer’s “Cardinal rule” was not just cause for dismissal.

Summary


Justice Wein’s reasons start with a very good summary of the facts and points in issue:

[1] Mr. Plester made a serious mistake at work.  By failing to lock out a machine he was clearing, he put himself, and potentially others, at risk of injury.  He compounded his mistake by failing to report his error. The next day, others advised management. Although he was a supervisor with 17 years of employment with the company, he was summarily terminated.
[2] This is his action for wrongful dismissal.  There is a dispute concerning the exact circumstances of what happened at the time of the underlying incident.  There is no dispute about Mr. Plester’s failure to report the incident.
[3] Based on the investigation they did at the time, Polyone appeared to have solid grounds to dismiss Mr. Plester summarily; but this is not in any sense an appeal from that decision.
[4] The issue before the court is whether, based on the expanded evidence at trial, there was just cause for dismissal.

Facts


Polyone, the Employer, is a manufacturing company. At its Orangeville Ontario plant, it manufactures plastic pellets in various sizes and colors. As found by Justice Wein, the process is a complex and potentially dangerous one, involving the mixing of chemicals into a hot plastic dough, the mechanical stretching of the dough, the fine dicing of the dough into pellets that are eventually blown dry before being mechanically boxed or bagged.

Justice Wein continued her reasons by noting that, the company has a good safety record, and emphasizes safety in its training and day to day supervision. Safety training is provided to new employees, training is annually updated, and monthly refresher training sessions are required for all employees. There is a strong culture of health and safety. Emphasis is given to what the company termed the "Cardinal Rules" which include the requirement that any machinery being worked on be locked out and tagged by any and all employees working on the machinery, so that there is no possibility that the machine can start up while being worked on. This rule is consistent with provincial labour regulations that promote the self-regulation of safety in the workplace. Another “Cardinal Rule” is that employees are strictly required to report any incidents of violation, even minor incidents such as a slight burn requiring first aid.

The plaintiff, John Plester, had worked at Polyone for 17 years and had been promoted several times, until he became a line supervisor. The company records show he had only relatively minor incidents of past discipline as a line worker, predating his promotion to supervisor. He was hard-working and a good employee, mechanically oriented and particularly talented at fixing some of the more problematic machines. He had been a line supervisor for about six years when the incident resulting in his dismissal occurred

By Justice Wein’s account of the testimony, September 23rd, 2009 was not a good day for John Plester at work. Machines were not working and his staff was not being helpful. Mr. Plester therefore took matters into his own hands and began working on the machines, disobeying the “Cardinal Rule” by not locking out the machines. Mr. Plester then failed to call to Health and Safety Coordinator, even though he knew he should have. Mr. Plester reckoned that he would at least get a suspension and maybe even a demotion.

Decision


In resolving that summary dismissal was not warranted Justice Wein referenced the oft-cited decisions of McKinley v. BC Tel, 2001 SCC 38 and Dowling v. Ontario (Workplace Safety and Insurance Board) 2004 CanLII 43692 (Ont. C.A.) and, at paragraph 35 of her reasons, held that:

Inherent in the contextual approach is the principle of proportionality: alternatives to summary dismissal without notice must be considered by the employer before terminating an employee for just cause. [Emphasis added.]

Justice Wein held that the plaintiff’s conduct was serious and could not be characterized as a “momentary lapse.” With respect to Mr. Plester’s failure to report his error, Justice Wein held that:

The conduct of failing to report, about which there is no dispute, was even more serious. The immediate danger was over, but the danger of unenforced safety rules in a workplace where heavy equipment operates constitutes a continuing risk.

The failure to report the incident is of even greater concern because of the position Mr. Plester held. The fact that Mr. Plester was a supervisor aggravates the conduct, because of the danger of inculcating a sense of complacency and isolation from the rules properly set down by management. Accordingly, both breaches – that of failing to lock off and that of failing to report – must be categorized as serious.  While I accept the facts were as stated by Mr. Plester, the conduct was nonetheless very serious. (Para. 38)

Justice Wein then went on to set out how other employees’ failure to “lock out” had been handled. In none of those cases had the employee been fired. In the end Her Honour held that, “I find the summary dismissal in this case was out of line with other dismissals by this company.  Serious as the conduct was, dismissal was not a proportional response.” (Para. 46)

In the result Justice Wein held that Mr. Plester was entitled to 14 months notice of his dismissal.

On appeal, the Court of Appeal found that comparison to other incidents at PolyOne was an error, and that the judge should not have placed as much emphasis as she did on another incident. However, notwithstanding that error, the Court of Appeal affirmed the decision that summary dismissal was not warranted.

Commentary and Takeaways


As has been argued in this blog on several occasions, the bar will be set for high for those employers that wish to terminate an employee on the basis of a single, isolated incident. In this case, not even the breaking of the employer’s Cardinal Rule was sufficient to warrant summary dismissal.

The takeaway for Ontario employers is that before taking the decision to terminate an employee’s employment for “just cause” one has to be sure that the decision is warranted and proportional to the offence. As cases like this one demonstrate, the failure to get it right can be quite costly. If you are an Ontario employer and are faced with a situation where you may have to terminate an employee, the employment lawyers at Kelly Santini LLP have considerable experience in this area and would be happy to provide personalized service to you.

The takeaway for Ontario employees is that, while it is never advisable to break an employer’s rules (Mr. Plester was not awarded his job back one must note), one does not have to accept an employer’s decision to terminate without notice. If you have been fired from your job in Ontario, before agreeing to anything, including a severance offer, it is always prudent to seek professional legal advice. The employment lawyers at Kelly Santini LLP have considerable experience in this area and would be happy to provide personalized service to you.

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As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.


Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He tweets from @SeanBawden.


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