Mr. Plester worked for the employer for 17 years, and was a supervisor at its plant in Orangeville for the last six years of his employment. The company takes safety very seriously, has a good safety record, emphasizes a strong culture of health and safety, and particularly emphasizes what it calls "Cardinal Rules" for safety, including that any machinery being repaired be locked out and tagged. Another Cardinal Rule was that violations be reported immediately.
Bear in mind that the Occupational Health and Safety Act places serious requirements upon employers to be proactive about health and safety. This is a company that clearly takes those obligations to heart.
Plester had a strong work history - he was a good employee, hard-working, and good at fixing the machines. He had minor disciplinary events over his 17 years, all pre-dating his promotion to supervisor, aside from a reprimand just before the incident in question for 'inappropriate comments to a co-worker'.
As a senior and experienced employee, Plester knew very well about the safety requirements, and especially about the Cardinal Rules.
On September 23, 2009, Mr. Plester was having a bad day. There had been a series of equipment failures, and the team he supervised wasn't working well together. He went out to the floor to help get some malfunctioning machines up and running while other employees were on break. The original trial decision has a fair bit of technical jargon about the parts of the machines he was working on, but I'll try to keep it simpler: He decided to vacuum the dust from the bottom of the machine to begin with, and one of his subordinates 'got in his face' about locking out the machine first, and he answered that he didn't need to in order to vacuum. As he was working away, two of his subordinates were just standing there chatting, which added to his frustration, and he decided to just keep going himself, and he removed the internal screens of the machine, forgetting that he hadn't locked it out.
Cleaning behind the internal screens involved clearing 'pellets' falling from an overfill bin; Plester called over a subordinate to help with the overflow. Afterwards, he went to restart the machine and realized that his subordinate had put a lock on the machine, at which point he realized - to his embarrassment - that he had broken a Cardinal Rule.
(The evidence doesn't suggest that anyone was ever in real danger - if he reached behind the screens, that would be hazardous, but he didn't believe that he had done so, and neither did the other witnesses present.)
He didn't report it immediately. He intended to report it, but there was a visiting Vice President from Cleveland the next day, and he thought it was best to wait until after the visit to report it to management. By the next morning, however, his subordinates decided to report the incident, in accordance with their own obligations. Plester was sent home on an investigative suspension, and later informed of the decision to dismiss him.
The Trial Decision
The trial decision is interesting. The trial judge, Justice Wein, is an experienced judge...she started as a criminal lawyer, but judges quickly develop a broader base of experience. Nonetheless, it appears that her wrongful dismissal experience is limited. Twice in the decision, she asserted that her role was not to hear an appeal of the company's decision to dismiss or to evaluate the company's decision-making processes, but rather to determine whether or not dismissal was the appropriate response. Which is good, because that's right, but I'm not sure why she felt the need to give such assurances, if she was not coming at it from a different perspective. Nonetheless, her different perspective meant that she did comment on the employer's investigation, and her observations were interesting, which I'll reproduce below.
The test for just cause ultimately tracks to the Supreme Court's McKinley v. B.C. Tel decision, but is generally stated fairly broadly as a contextual analysis of the seriousness of the misconduct. Justice Wein's statement of the test is more detailed than usual:
The court must first determine the nature and extent of the misconduct. Secondly the court must consider the surrounding circumstances for both employer and employee. Finally the court must determine whether dismissal is warranted as a proportional response: is the misconduct sufficiently serious that it gives rise to a breakdown of the employment relationship.The contextual factors are important. The misconduct was serious, and aggravated by the serious approach to health and safety taken by the company and by Plester's position of responsibility. The failure to report added to the seriousness of it.
However, the trial judge's analysis of proportionality took a strange turn, looking strictly at the employer's record of how they responded to comparable infractions. This is not irrelevant. In the appropriate case, one might argue that previous tolerance of similar infractions amounted to condonation, or that the objective seriousness of misconduct is lesser if the employer was known not to take it so seriously. But it's hardly the central element of the test.
The trial judge relied on a prior comparable incident where the Operations Manager, Mr. Glassford, had apparently violated a Cardinal Rule in July 2009 in a similar manner. A mechanic observed it and, in accordance with his obligations, reported it to his supervisor, Mr. Plester. Plester, in turn, discussed the matter with his own supervisor...Mr. Glassford. Who shrugged it off and presumably took no further action.
In light of the "Glassford Incident", the trial judge concluded that dismissal was not the appropriate response, and awarded 14 months pay in lieu of notice.
The Court of Appeal
The trial judge's analysis of proportionality was wrong. The employer argued that putting such an emphasis on the Glassford Incident, which had never come to the attention of Glassford's supervisor, was wrong. The Court of Appeal didn't appear to put much stock in the argument that the employer didn't know about it, but nonetheless found that the trial judge's reliance on the incident was misplaced.
However, in a brief decision, the Court of Appeal concluded in any event that, on the factual findings of the trial judge, and in light of the various mitigating factors in the case (i.e. that he was a long-service employee with a solid work history, and that nobody was injured and nobody else was put at risk), dismissal was not appropriate. There were lesser measures the employer could have used to appropriately respond to the misconduct, serious though it was.
I agree with the Court of Appeal that the trial judge's analysis was wrong, but I think there's more to be said of it: The Court of Appeal looked at the case the way that the trial judge should have - an objective weighing of the seriousness of the misconduct in context, bearing in mind the mitigating factors. How the employer responded previously to similar misconduct is not irrelevant, but not determinative. The fact that an employer may have a long and well-established history of summarily firing an employee on the first instance of being five minutes late for work does not make it just cause. The fact that a rule may be "Cardinal" is important, but does not decide the issue.
However, the Glassford Incident may not be irrelevant, either. Glassford represented company management. If my manager technically breaches a safety rule and then, when I discuss the matter with him, tells me the technical breach isn't a big deal...it seems to me that, if I proceeded to treat technical breaches of safety rules as unimportant, the employer would have a hard time holding me to account for it. I have a clear directive from management on the minimal seriousness of such conduct. The fact that Glassford may not have accurately reflected head office's view on the point...well, that's beyond my pay grade.
I otherwise like the trial judge's commentary, both in form and substance. There's a definite sense of her being an outsider looking into employment law, which results in an unusually detailed treatment of some of the legal questions.
Justice Wein's Comments
Firstly, as promised, her comments on workplace investigations:
"There are a number of procedural improvements to the process that would immediately be apparent to anyone schooled in the basics of due process."
- Keep all original notes. Do not summarize and shred original handwritten notes.
- Interview witnesses separately.
- The initial report in this case, by already using the high-threshold language of 'wilful misconduct', suggested tunnel vision on the part of the writer.
- The initial report was essentially the same as the initial draft, suggesting that the decision was reached without full discussion or contemplation.
- No review of comparable events occurred in the report.
- "[O]nce the possibility of dismissal for cause was seen as a potential outcome, Mr. Plester should have been advised, and given an opportunity to give a more complete statement. The extent of his evidence at trial was not known to management, so the potential for a different outcome existed, had he been re-interviewed after the initial discussion."
None of these are legally mandatory - strictly speaking, a non-bargaining unit employee is not entitled to procedural fairness leading up to dismissal. But these are good practices nonetheless, and there are cases where improper investigations have gotten employers into a lot of trouble.
The Employment Standards Act entitlements
It ended up being moot, with just cause not existing, but there was an alternative argument about whether or not Plester would nonetheless be entitled to notice and severance pay under the ESA. (Which would likely have been in the ballpark of 25 weeks...so, still significant.) This is a matter that I have discussed before on this blog: It has long been recognized by the OLRB, and relatively recently by the Courts, that the standard of misconduct necessary to disentitle one to his or her ESA minimums ("willful misconduct") is not the same as common law just cause.
Both counsel seemed to be slightly bemused by the recent authorities that distinguish between the definition of just cause and willful misconduct. In my view, however, the distinction is quite obvious: Just cause involves a more objective test, albeit one that takes into account a contextual analysis and therefore has subjective elements. Willful misconduct involves an assessment of subjective intent, almost akin to special intent in criminal law. It will be found in a narrower cadre of cases: cases of willful misconduct will almost inevitably meet the test for just cause but the reverse is not the case.Hard to put it much better than that. The employment law bar is largely struggling with this distinction, finding it hard to accept how an employee who engaged in such serious misconduct as to meet the high threshold of just cause might nonetheless be entitled to potentially significant entitlements under the ESA. And Justice Wein, a former criminal lawyer, doesn't see why we should be confused about such a straightforward distinction.
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