Slapping another employee not necessarily cause

Trash talking escalated to slap but wasn't just cause for dismissal
By Karen Sargeant
|employmentlawtoday.com|Last Updated: 03/15/2013

We all know proving cause for termination in Canada is difficult. Poor performance very rarely equates to cause. And employees seem to be entitled to warnings in most cases. But surely it is cause if an employee slaps another. Not so, according to one Ontario judge in Shakur v. Mitchell Plastics.

The slap

The plaintiff, Mr. Shakur, was a machine operator at Mitchell Plastics for almost six years. He was 35 years old when he was fired. He earned $15 per hour. Shakur routinely engaged in verbal jousting with other employees. But it was usually limited to trash talk. Not so on August 17, 2007, when Shakur slapped another employee with whom he was trash talking, across the face.

Shakur had no history of violence. And the judge concluded that the other employee said something, although not sure what, to provoke Shakur.

Not cause

Quoting from the Supreme Court of Canada’s decision in McKinley v. BC Tel, the judge stated that “an employee’s misconduct does not inherently justify dismissal without notice unless it is ‘so grievous’ that it intimates the employee’s abandonment of the intention to remain part of the employment relationship”. Measured against this standard, the judge said it was difficult to see how Shakur’s action, however improper, justified an outright dismissal.

Mitchell Plastics argued that the misconduct amounted to cause because, among other things, workplace violence could not be condoned. Although the judge appreciated the importance of stopping workplace violence, because Mitchell Plastics did nothing to train its employees about workplace violence rules and the consequences of breaking them, other than distributing the Employee Handbook, it could not rely on workplace violence to amount to cause.

Having determined that there was no cause, the judge concluded that the reasonable notice period was 4.5 months. Shakur was therefore entitled to damages equal to what he would have earned had he worked 4.5 months. Adding lost salary, profit sharing and benefits, that amounted to $12,514.

Meaning for employers

This decision, although a lower court decision from one province, reiterates just how difficult it is for Canadian employers to prove cause. It also reinforces the importance of training employees on the workplace rules, particularly if the employer wants to rely on those rules as cause for termination. That training should involve:

• Clearly articulating the rules
• Providing some context or explanation for the rules
• Clearly outlining the consequences of breaking the rules. 

For more information see:

Shakur v. Mitchell Plastics, 2012 CarswellOnt 2091 (Ont. S.C.J.).

Karen M. Sargeant is a partner with Faskin Martineau's Labour, Employment and Human Rights group in Toronto. This article was reprinted with permission from Northern Exposure, a blog written by lawyers at the law firm of Fasken Martineau and produced in conjunction with HRHero.com. You can read more Northern Exposure blog posts at http://blogs.hrhero.com/northernexposure. You can also find Fasken's weekly bulletin, "The HR Space" at http://www.fasken.com/en/the-hr-space.

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