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Date:
2012.05.03

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THE EMPLOYERS' EDGE

Ontario Court Upholds Termination of Long-Service Employee for Serious Misconduct and Dishonesty

Employers have long grappled with the issue of how to properly discipline a long-service employee for an apparently isolated, but severe, incident of misconduct.  An employer may need to determine whether to discharge their employee for just cause, and the answer is not always cut and dry.  The appropriate form of discipline will depend largely on the specific context of the case, including the nature of employment, length of service, and the severity of the misconduct.  The Ontario Superior Court of Justice has recently addressed the issue of just cause dismissal of a long-term employee in a non-unionized workplace, providing an example of when discharge is appropriate.

In an unreported case involving Canada Cartage (2012 ONSC 1622) the plaintiff was a 51 year old employee of Canada Cartage Systems Ltd. with more than 28 years of service as a truck driver at the time of his dismissal.  The plaintiff breached company policy by consuming alcohol on duty and then got into an accident while driving his truck.  During the employer’s investigation the plaintiff provided misleading information to the employer regarding his alcohol consumption and the accident.  Canada Cartage took the position that the plaintiff's misconduct and subsequent dishonesty breached his position of trust with the company, and irreparably damaged the employment relationship.  He was fired for cause without notice.  The plaintiff, on the other hand, argued that he was wrongfully dismissed without cause, and sought $250,000 in general damages.  In the alternative, he argued that if there was cause for discipline, his misconduct should have been addressed through progressive discipline such as suspension, or other penalty in lieu of dismissal. While the plaintiff was charged criminally with impaired driving and refusing to provide a breath sample, he was acquitted of those charges.

The plaintiff claimed that he was wrongfully terminated as he was off-duty when he consumed alcohol. He also argued that the employer’s policy regarding alcohol was ambiguous and should be interpreted in his favour.  The policy stated, in relevant part:

Use of alcohol or any drugs (legal or illegal) that may be considered to impair the employee’s judgment are prohibited while on duty or while preparing to go on duty. …

Employees who are found to be using alcohol or illegal drugs (or legal drugs that may reasonably be considered to impair judgment), will be removed from duty and may be subject to disciplinary action up to and including dismissal for cause.

Further, the plaintiff argued that given his length of service, clean discipline record, and the minor nature of his misconduct, discharge was excessive.

In wrongful dismissal cases, employers bear a reverse onus to establish both:

1)      That the employee committed the alleged misconduct; and

2)      That on an objective review of the conduct, the employer acted reasonably in discharging the employee.

In this case, the alleged misconduct for which Canada Cartage terminated the plaintiff included breach of company policy, and dishonesty.  The Court agreed that the employee had breached Canada Cartage’s clear and unambiguous policy on alcohol consumption.  The plaintiff admitted to consuming two beers before his accident, and the police provided evidence of his impaired judgment and intoxicated behaviour.  The Court further agreed that the plaintiff’s subsequent dishonesty irreparably damaged the employment relationship.  The Court found that on his own admission, the plaintiff misled the police by denying that he had been drinking alcohol, and that he continued to mislead the employer by providing inconsistent and fraudulent versions of his alcohol consumption and how the accident occurred.

The Court disagreed that discharge was excessive, finding that the plaintiff’s misconduct created a risk to the motoring public, jeopardized his employer’s reputation, breached the trust reposed in him to perform his duties in a faithful and conscientious manner, and therefore irreparably damaged the employment relationship.  Any discipline short of termination therefore would have been inappropriate.

While it is not always easy to determine whether it is appropriate to discharge a long-service employee for just cause, the Court’s decision indicates several factors to consider including:

  • Whether the employee has breached of the Employer’s unambiguous policy;
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  • The effects of the misconduct, including whether there has been a risk to the public or to the Employer’s reputation;
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  • Whether the employee has been dishonest during or subsequent to their misconduct, where such dishonestly will be disciplinable misconduct in itself;
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  • Whether the employee has breached a duty to perform their job in a faithful and conscientious manner;
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  • Whether the employee has damaged the employment relationship irreparably, thereby making any discipline short of discharge inappropriate.
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    If you are an employer grappling with the appropriate disciplinary response to the misconduct of a long-service employee, the lawyers at Crawford Chondon & Partners are able to provide advice for your unique circumstances.

    Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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