Violence in the workplace

One of our workers punched another worker — can he be fired for cause?

Brian Johnston
Question: One of our employees punched a co-worker in the chest during a confrontation at work. The police were not called, at the victim’s insistence, and no charges are expected to be laid. But we are concerned about this incident, and this worker has shown some violent tendencies in the past. But we have not documented any of it. Can we fire this worker for cause? Failing that, can we provide a very small compensation package that is just above the statutory minimum but less than one provided at common law?

Answer: Violence in the workplace is a serious issue and needs to be dealt with accordingly. Indeed, most occupational health and safety legislation requires employers to take steps to ensure safety at the workplace.

While punching a co-worker is likely just cause for dismissal, in recent years courts have been less consistent in their findings. Whether this type of behaviour constitutes just cause will depend on the circumstances.

The fact the employee has a history of violence which has not been documented may constitute condonation and prohibit you from dismissing for cause as a result of this incident. Presumably, if the past violent behaviour was not documented, it was also not addressed through warnings or discipline.

In circumstances where an employer overlooks conduct which constitutes just cause for dismissal, the employer cannot later dismiss the employee for the same misconduct. If similar violent incidents have been overlooked in the past, as an employer you will need to give a specific warning before you are entitled to dismiss for cause.

Your suggestion of giving the employee a small compensation package just above the statutory minimum but less than what would be given at common law is reminiscent of the principal of “near cause.” This principle held that the period of reasonable notice could be reduced where there was substantial misconduct which fell short of that required for dismissal with cause.

While this seems like a common sense compromise of the black and white rules of just cause, near cause has been rejected by the Supreme Court of Canada . Accordingly, though it is open to an employer to dismiss an employee and give notice based on statutory minimums, employers are still be subject to common law notice entitlements. Arguments on near cause will not decrease the period of reasonable notice required.

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected].

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