Cause is a high bar to meet, even in the face of safety concerns as the court pointed out in Baker v Weyerhaeuser Company Limited, 2020 ABQB 808 (CanLII). The court said at 30:
[30] As stated in Tymko v 4-D Warner Enterprises Ltd, 2018 BCSC 372, there are a number of factors to consider in assessing the seriousness of an employee’s misconduct including as it relates to safety issues. But as stated “at the end of the day, the only question is whether the employee engaged in misconduct which caused a breakdown in the employment relationship.” It might well be that a full consideration of Baker’s employment history and the magnitude of the failures cited as reasons for termination does show ultimately a breakdown in the employment relationship. However, there was no detailed consideration of any such factors. The higher management merely accepted Cheeseman’s conclusory reasons without proper investigation.
[31] The Ontario Court of Appeal in Plester v PolyOne Canada Inc, 2013 ONCA 47 dealt with a similar fact situation where the employer focussed on one incident in the case of a 17-year employee with an almost unblemished record. At paras 8 to 12 they noted:
[8] Considering the importance of workplace safety, the trial judge characterized the respondent’s conduct as a serious mistake, compounded by his delay in reporting. She then considered how such breaches were viewed by PolyOne. She concluded that an incident involving another employee, Mr. Glassford, provided a good comparison. Mr. Glassford was an Operations Manager, and breached the same Cardinal Rule as the respondent. As Mr. Glassford was not terminated as a consequence of his breach of the Cardinal Rule, PolyOne’s dismissal of the respondent was not a proportionate response.
[9] . . . Nevertheless, we agree that management’s failure to terminate Mr. Glassford at that time cannot be used as a comparator, and the trial judge erred in treating it as such.
[10] We appreciate that an employer’s ability to respond strongly and swiftly to violations of rules designed to ensure workplace safety reinforces the importance of such rules, and promotes a culture of workplace safety. We also appreciate that a line-supervisor, such as the respondent, is generally subject to a higher standard than a line worker. And, given PolyOne’s fully warranted concerns about workplace safety, we agree with the trial judge that the respondent made a serious mistake. However, the respondent’s mistake did not appear to have put any other persons at risk, and he was a long-standing, good, hard-working employee with only minor incidents of past discipline as a line-worker, pre-dating his promotion to line-supervisor some six years before.
[11] Moreover, the trial judge accepted that the respondent planned to report his violation; what occurred was an intended short delay in reporting, as opposed to a suppression of a violation. We are not persuaded by PolyOne’s argument that that the respondent’s conduct was such a violation of trust that a continuing relationship was impossible.
[12] In the result, we agree with the trial judge that, in these circumstances, dismissal without notice or pay in lieu of notice was not warranted.
[32] Again, the law requires a detailed consideration of all factors. That did not occur at all in this case.
So Employers may not have immediate cause because of an isolated safety issue where no-one was injured. These cases are very fact specific and much will depend on the underlying facts.
If your employer has alleged cause against you, please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
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