In the recent decision of Phanlouvong v Northfield Metal Products (1994) Ltd, 2014 ONSC 6585, the Ontario Superior Court considered an incident of workplace violence to not provide just cause for dismissal.
The employee in question was terminated for cause and without notice after a workplace incident in which the employee punched another employee in the face. The incident arose when an employee bumped into the plaintiff. Feeling harassed, the plaintiff demanded an apology, and when he did not get one punched the other employee in the face. The victim of the punch was suspended for 1 week for his role in the incident, most importantly his failure to apologize or simply walk away from the plaintiff, which resulted in the escalation of the altercation. The plaintiff was terminated for cause.
The plaintiff, a 16-year employee, sued for wrongful termination demanding 17 months’ notice as well as aggravated and punitive damages.
The Court concurred with the employer that the plaintiff’s conduct was worthy of discipline, but concluded that termination was too harsh and awarded a 15 months’ notice period. The Court noted the employer’s workplace violence policy, which included a program of progressive discipline for workplace violence. The plaintiff had no disciplinary history. While the Court noted that even without any disciplinary history termination can be the appropriate discipline for workplace violence, it concluded that it is incumbent on the employer to consider alternatives to dismissal before terminating an employee for cause. In this case, the Court found that the employer had not considered any alternatives to dismissal before termination. As such, the Court found that termination was excessive discipline and therefore the plaintiff’s dismissal was without cause.
This case serves as a reminder of how difficult it can be to establish just cause, even for matters as serious as workplace violence. Workplace violence will generally be cause for discipline, and may well be cause for termination. When a workplace violence policy calls for progressive discipline employers will be expected to apply progressive discipline absent compelling reasons for harsher punishment. In addition, factors such as an employee’s length of service and the risk of further violence will be considered by Courts as mitigating factors when determining whether discharge is an appropriate response to workplace violence. In non-union workplaces, where just cause to terminate does not exist employers will be required to provide notice of termination, as determined by contract, statute or the common law as the case may be. This does not, however, prevent the employer from terminating, but rather simply means that termination without just cause may necessitate the provision of notice or pay in lieu thereof.