Unfortunately, there is no easy answer to this frequently posed question.
Termination for cause is seen as the “capital punishment” of employment law. Most experts will tell you that it takes more than one incident to justify dismissal for cause. However, in a relatively recent case, Dziecielski v. Lighting Dimensions Inc., 2013 ONCA 565, the Ontario Court of Appeal upheld the dismissal of an employee for cause following a single incident of serious workplace misconduct.
The case involved the dismissal of Mr. Dziecielski, Vice-President of Lighting Dimensions. Mr. Dziecielski had worked for the company for 23 years without any serious issues.
Mr. Dziecielski stopped for lunch on April 23, 2007, consumed 4 beers in the span of one hour, proceeded to operate the vehicle and got into a serious single-vehicle accident.
He sustained serious injuries and the company vehicle was destroyed. A police investigation determined he was legally intoxicated at the time of the collision. Mr. Dziecielski was charged with a number of criminal offences relating to drunk driving. The company dismissed him for cause.
Mr. Dzielcielski sued for wrongful dismissal, relying on the fact that he had an unblemished record prior to the one incident. At trial, the court found for the employer. Not surprisingly, Mr. Dzielcielski appealed.
The Ontario Court of Appeal in a very short decision released on September 11, 2013 upheld the termination on the basis that the employee’s conduct amounted to serious misconduct, despite his previous unblemished record.
Courts have consistently emphasized that the analysis will be contextual and fact specific. In this case, it was noted that intoxication alone may not justify dismissal, rather the determination was made in light of all of the factors, including the fact that Mr. Dziecielski’s actions amounted to very serious misconduct which was prejudicial to the employer’s business, consisted of the commission of a crime and put himself and members of the public at risk.
It is worth noting that the facts of this case did not give rise to any suggestion of a substance abuse problem. Had Mr. Dziecielski raised such issues, the analysis by the courts would likely have been quite different. Substance abuse is considered a disability pursuant to the Ontario Human Rights Code (the “Code”). As such, an employee who discloses to an employer that he or she suffers from a substance abuse problem or who displays behavior which ought reasonably lead an employer to make further inquiries in this regard, will attract the protections of the Code. A situation involving an employee suffering from a substance abuse problem would require an analysis of additional considerations by the court, including:
- whether or not the employee in fact suffers from a disability;
- whether the employer knew or had a duty to inquire about the possibility of a substance abuse issue;
- whether or not the employer had a duty to accommodate that disability to the point of undue hardship.
This case provides hope for employers that it is possible to terminate for cause for a single serious instance of misconduct. Sadly, there is no clear test, but the Court of Appeal has shed some light on the factors that will be considered.