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Feb 20, 2013

Breach of 'cardinal rule' not always cause for employee termination

'Zero tolerance policy' was more flexible in reality for Ontario employer
By George Waggott
    
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Even when workplace rules seem clear, each case turns on its facts. The recent decision in Plester v PolyOne Canada Inc. confirms the ongoing challenges which employers face in their attempts to terminate employees for cause. Even when an employee admittedly breaches an established and fundamental rule, the courts adopt the so-called "contextual approach" and must assess the proportionality of termination in the unique circumstances of each case.

In the case of John Plester, the relevant rule related to workplace safety, with PolyOne terminating his employment following his failure to lock out a machine he had been working on. The company was able to point to the widely known "Cardinal Rule" in the workplace, which required that all machines be locked out when anyone was working on them. Plester acknowledged both that this rule existed, and that he knew about it. His successful defence, however, was tied to his assertion that his breach was not intentional, and he had planned to report the violation after it had occurred.

The unsuccessful appeal by PolyOne of the trial judge's decision may be surprising to some. However, the decision of the Ontario Court of Appeal may in part be one driven by the fact that other safety incidents in the same workplace did not necessarily appear to have been violations which warranted discharge. Put differently, the purported "zero tolerance" was in fact a more flexible standard in actual practice. The specific employee evidence regarding the relevant incident also appears to have been inconsistent. The result was that Plester's approach, which was to be contrite and point to his long and loyal service, prevailed.

The lesson from the PolyOne decision is that the potentially inconsistent application of workplace rules can be problematic. In cases where expectations and standards are either not made clear to employees, or are not consistently applied, cause for termination will not be an automatic result. Thus, even though employers have obligations to maintain a safe workplace and protect the health and safety of that environment, this decision suggests at least some necessity for a breach to be established on clear facts without contrary evidence of prior inconsistent application.

For more information see:
Plester v PolyOne Canada Inc., 2013 CarswellOnt 832 (Ont. C.A.).

George Waggott is a partner in the Employment and Labour Relations Group for McMillan LLP in Toronto. He is national Co-Chair of that Group and also serves on the McMillan Board of Partners. He can be reached at (416) 307-4221 or george.waggott@mcmillan.ca.

    
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