Kerry Barton (“Barton”) worked for Rona and was the Assistant Store Manager in its Barrie, Ontario location when his employment was terminated for just cause after an incident on April 17th, 2009.
The Rona store had scheduled an employee training program for April 17th, 2009. The training was to take place on the second floor of the store, but the store did not have an elevator. This presented a problem for one employee, Kai Malmstrom (“Malmstrom”), who used a wheelchair and was unable to access the second floor using the stairs. Although Barton assured Malmstrom that he would be trained on the ground level at a later date, Malmstrom and his co-worker had another idea.
The employees thought that Malmstrom could attend the April 17th training if he were to be lifted in his wheelchair to the second floor with a forklift. Malmstrom approached Barton about using the lift to attend the training. Barton expressed his discomfort with the idea and reiterated that Malmstrom would be trained at a later date, but did not expressly forbid Malmstrom and the other employee from executing their plan.
The forklift ride up and down went ahead (the “Incident”), and was even more dangerous than planned: the wheelchair was not secured to the skid during Malmstrom’s descent to the ground floor and the area around the forklift was not cleared during the lift. In fact, another employee walked under the forklift while Malmstrom was being lifted to the second floor. Thankfully, no one was hurt.
The decision was made to terminate Barton and the forklift driver for just cause. The Court acknowledged that Rona was culturally committed to workplace safety and noted that the Employee Hand Book made clear that violations like the Incident were listed as “Causes for Immediate Dismissal”. It was also noted that the Rona’s Code of Conduct required employees to comply with occupational health and safety regulations. The Court confirmed that it was Barton’s responsibility as a manager to enforce the safety rules. It was also held that Barton breached his obligations as a manager in failing to take the steps necessary to prevent the Incident.
However, the Court disagreed with Rona’s decision to terminate Barton for cause. Just cause termination is “the capital punishment of employment law” and a contextual approach must be followed when determining whether such a dismissal is warranted. The Court found that, although Barton’s misconduct was serious, his performance reviews were good, he did not have a disciplinary record and he was not involved in nor did he give explicit permission for the Incident. It was the Court’s view that some form of lesser discipline, such as a final warning or suspension, would have been effective in this case to avoid future incidents. The Court also recognized that Rona may have had good business reasons to send a message by terminating Barton, but that in so doing, they breached the employment contract in failing to provide him with reasonable notice of his dismissal. At 64 years old and having worked for Rona for less than four years, Barton was awarded 10 months’ notice as damages for wrongful dismissal.
Lessons for Employers
- One mistake (even a very serious one) may not be just cause. The Court in this case accepted that Barton made a serious mistake and that this exposed employees to a serious risk of harm and put the company at risk of liability. However, this was still not enough to constitute just cause for termination. When the proportionality test was applied, termination for cause was found to be too extreme given the circumstances.
- Consider progressive discipline as an alternative. Even where a policy or an employee handbook appears to list termination for cause as the only option, the full set of circumstances must be considered. If a lesser penalty would achieve the goal of avoiding repeated conduct, this should be seriously considered.
- Consider offering a severance package. Sometimes the misconduct in question seems so at odds with the company’s values or policies, that termination for cause seems like the only available course of action. It is not, and often comes with serious risk of litigation and liability. The goal of “sending a message” can often be equally achieved by terminating without cause.
- Don’t forget human rights. Had Malmstrom not attended the training session, he might have been successful in bringing a human rights complaint alleging failure to accommodate. However, employers should consult with qualified professionals and Joint Health and Safety Committee members to ensure that methods of accommodation do not create unnecessary hazards for the employee or any other workers in the workplace.