The trial took place over 5 days in December 2013, June 2014, and January 2015, and the decision was recently released. The result: The plaintiff won again.
The case was before Deputy Judge Marshall, a Niagara Falls lawyer. I've had the pleasure of appearing before him in a settlement conference, and found him to be a relatively knowledgeable Deputy Judge in terms of employment law (though that may have something to do with the fact that, when I was before him, this trial was already ongoing).
The plaintiff's lawyer was Margaret Hoy, a prolific employee-side lawyer on the Niagara peninsula who has litigated no fewer than five matters against this particular employer (and whose other credits include the unusual case of Ludchen v. Stelcrete, which highlighted the need for thorough and timely investigations). The defendant used Hicks Morley for the Divisional Court appeal, but for whatever reason - my guess is cost - decided to have in-house counsel, Paul Pingue, handle the re-trial.
The Facts
This is getting to be a long saga.
Majewski began working at the casino in the late 90s, and was dismissed in August 2005. The culminating incident involved a confrontation with a co-worker, Maracle: Majewski had a migraine, and wanted to put his name down on an "E/O list" - basically a sign-up sheet to be sent home early if workload allows. Maracle had the sheet in hand, but was bringing it to another part of the building, and wouldn't let Majewski see it. Majewski then called Maracle a "f***ing a**hole" (and/or a "f***ing prick").
Maracle complained to management, management investigated, Majewski admitted the comment, argued that he hadn't done anything really wrong, and they dismissed him for cause.
The defence primarily turned on a 'cumulative cause' argument, because of Majewski's disciplinary record.
In 2001, Majewski had a couple of incidents, first losing his temper in the break room, and later making an offensive comment to a casino patron that 'men don't wear pink shirts'. After the 'pink shirt' incident, he received a warning that further incidents could lead to dismissal.
The next disciplinary notice was more than 2 years later, in November 2003: Playing for the Casino Niagara hockey team, Majewski used abusive language toward the referee (another co-worker), and was ejected from the tournament.
Next up: In October 2004, Majewski was upset with a patron who had been blowing cigar smoke in his face for 20-30 minutes. He asked the individual to stop, and the person's response was "f*** you". Majewski sought the assistance of his supervisor, who didn't help, and then brought in the Pit Manager to resolve the situation. However, while the Pit Manager was discussing the matter with the patron, Majewski heatedly interjected numerous times, and was disciplined on the basis that he "has to let his supervisors handle these types of situations". The disciplinary noticed threatened "progressive counselling" in the event of "further situations like these". However, management seemed to be under the impression that Majewski was clearly warned that further confrontations would lead to termination. After the Maracle incident, relatively minor though it was, they basically concluded that Majewski was irredeemable.
It sounds like Majewski has a bit of a temper. But aside from these incidents, he had, by and large, positive reviews. It also bears noting that the plaintiff led evidence that there's a culture of swearing among casino employees, particularly off the floor.
The Judge's Findings
Deputy Judge Marshall accepted the evidence that there was a culture of swearing, but noted the important difference between swearing, simpliciter, and swearing at someone. He concluded that Majewski's conduct toward Maracle was disciplinable - perhaps even seriously disciplinable, in light of his history - but it didn't rise to the level of just cause, even considered together with his disciplinary history.
He accepted that the 'cigar smoke' and 'pink shirt' incidents were severe, because they involved inappropriate interactions with casino patrons. The hockey incident was only marginally connected to the workplace (and tempers flaring in a sporting event is hardly unexpected...the decorum is a little different than that of a workplace). The other two incidents (including the Maracle incident) were in the 'back', not in front of casino patrons, and accordingly were objectively less serious.
The Deputy Judge rejected the contention that there was any clear 'final warning' given, and found that the incidents did not amount to the employee doing something "fundamentally or directly inconsistent with the employee's obligations to his...employer".
He made two interesting remarks that I intend to touch on, however: Firstly, he queried whether or not the "last chance" doctrine reflects the state of the law, and concluded that it doesn't: One still needs to look at the objective seriousness of the Maracle incident in its full context. (The wording suggests to me, though it's not entirely clear, that even had a 'last chance' warning been given, it wouldn't have been enough in the circumstances.)
Secondly, the Deputy Judge remarked that, had the Maracle incident and cigar smoke incident been reversed in time, it may have given the employer a stronger argument for cumulative cause. (Not necessarily saying it would have succeeded, however.)
As I noted in my previous entry, quantum was no longer in issue: It was all or nothing, $25,000 or $0.
Comments
It's a good decision, and it very closely parallels the findings of the original trial judge.
I very much agree with Deputy Judge Marshall's assessment of the law. Giving an employee a clear warning that further misconduct will lead to termination...is an important step for generating just cause, but the analysis doesn't necessarily end there. One must still examine the objective seriousness of the misconduct.
It's not that different from the issue with 'zero tolerance'-type policies. Remember Plester v. PolyOne Canada Inc., where the employer had a series of "Cardinal Rules" for safety purposes? Nonetheless, one still needs to look at the full context and determine whether or not dismissal is objectively warranted.
Likewise, I think that Deputy Judge Marshall is correct to suggest that a reversal of the disciplinary incidents could have made a difference. Cumulative cause is not a cup that gets incrementally filled up - the 'straw that broke the camel's back' is a very difficult concept in employment law.
Indeed, I was a little surprised at first at how seriously the 'cigar smoke' incident was regarded. Interjecting between a manager and a customer is a problem, certainly disciplinary, but it's something that I would expect to result in coaching at the first instance. However, on a full read of the decision, it appears that the employer regards customer service as paramount - essentially, since all they're selling is service, it needs to be good. So on the basis of this element of workplace culture, otherwise minor incidents involving patrons are treated very seriously. That's fine. But that inflation of seriousness won't translate at all for conflict between co-workers.
And looked at in that light, it's fairly straightforward: Yes, Majewski had a bit of a history of losing his temper. He'd had a couple of incidents on the floor, which were disciplined seriously. But incidents 'in the back' aren't quite the same thing, and he couldn't be expected to see them as being the same thing...and before the Maracle incident, it had been over 4 years since his previous incident 'in the back'.
That's not to say that the Maracle incident could never amount to just cause. But you would need clear warnings dealing with comparable misconduct. By analogy, I'm entitled to insist that my employees show up on time. Imagine the following scenario: an employee has frequently been over an hour late, and I engage in progressive discipline up to the point of threatening termination in the event of further lateness. The employee is then punctual for a couple weeks, then one day shows up 10 minutes late in poor weather. Am I justified in dismissing him for cause? Probably not. By contrast, change the scenario to one where the progressive discipline related to shorter periods of lateness - i.e. where he was routinely 10 minutes late. In that scenario, it's a lot easier for an employer to make this pitch: I'm entitled to expect my employees to be punctual, and progressive discipline wasn't working; despite my clear directions and warnings, the employee failed to take appropriate measures to get to work on time.. Minor misconduct is hard to turn into just cause, but persistence in minor misconduct despite discipline can amount to insubordination.
There's also an interesting commentary about the impact of the investigative meeting - the Deputy Judge put little weight on Majewski's conduct in that meeting, arguing with management about his conduct, which the employer regarded as insubordinate. The Deputy Judge felt that having a frank discussion about the conduct is not disciplinable: "I see no reason why parties cannot have a robust meeting on a heated topic, ultimately agreeing to disagree....A dealer needs to respect management, no[t] cower to it." He got that right as well, in my respectful opinion, and it's an important distinction. Refusing to accept responsibility for misconduct can be aggravating, perhaps increasing the seriousness of the conduct (as opposed to, say, apologizing), but will not in and of itself amount to insubordination. If I sincerely think that an action was justified, then there's absolutely nothing wrong with me trying to make my case to the employer. (Of course, there are limits to the way in which I make my case.) At the end of the day, if neither one of us persuades the other, then management has the final word: You may think that you were justified; fine, you can think whatever you want, but it's going in your file regardless, and we expect you to hold to a higher standard in the future.
The result is right. The employer can't be faulted for wanting Majewski gone. If he really couldn't control his temper, it was probably just a matter of time before another incident on the floor. But just cause isn't really about prevention - it's about the seriousness of the misconduct in which the employee has engaged. And the decision to get rid of an employee because of what he might (or even 'probably will') do in the future, while a reasonable business decision, has to come with notice or pay in lieu.
That said, this case raises certain concerns about proportionality and access to justice. It has been almost 10 years since the dismissal. The second trial, on its own, was five days. For a Small Claims Court trial, that's insane. The value of the legal time going into that trial on each side no doubt rivalled or exceeded the value of the claim. That's without considering the costs of the Divisional Court appeal, or the first trial. And since the Small Claims Court is limited in its ability to award costs, that makes litigating a 5-day trial rather uneconomical for both sides.
I very much agree with Deputy Judge Marshall's assessment of the law. Giving an employee a clear warning that further misconduct will lead to termination...is an important step for generating just cause, but the analysis doesn't necessarily end there. One must still examine the objective seriousness of the misconduct.
It's not that different from the issue with 'zero tolerance'-type policies. Remember Plester v. PolyOne Canada Inc., where the employer had a series of "Cardinal Rules" for safety purposes? Nonetheless, one still needs to look at the full context and determine whether or not dismissal is objectively warranted.
Likewise, I think that Deputy Judge Marshall is correct to suggest that a reversal of the disciplinary incidents could have made a difference. Cumulative cause is not a cup that gets incrementally filled up - the 'straw that broke the camel's back' is a very difficult concept in employment law.
Indeed, I was a little surprised at first at how seriously the 'cigar smoke' incident was regarded. Interjecting between a manager and a customer is a problem, certainly disciplinary, but it's something that I would expect to result in coaching at the first instance. However, on a full read of the decision, it appears that the employer regards customer service as paramount - essentially, since all they're selling is service, it needs to be good. So on the basis of this element of workplace culture, otherwise minor incidents involving patrons are treated very seriously. That's fine. But that inflation of seriousness won't translate at all for conflict between co-workers.
And looked at in that light, it's fairly straightforward: Yes, Majewski had a bit of a history of losing his temper. He'd had a couple of incidents on the floor, which were disciplined seriously. But incidents 'in the back' aren't quite the same thing, and he couldn't be expected to see them as being the same thing...and before the Maracle incident, it had been over 4 years since his previous incident 'in the back'.
That's not to say that the Maracle incident could never amount to just cause. But you would need clear warnings dealing with comparable misconduct. By analogy, I'm entitled to insist that my employees show up on time. Imagine the following scenario: an employee has frequently been over an hour late, and I engage in progressive discipline up to the point of threatening termination in the event of further lateness. The employee is then punctual for a couple weeks, then one day shows up 10 minutes late in poor weather. Am I justified in dismissing him for cause? Probably not. By contrast, change the scenario to one where the progressive discipline related to shorter periods of lateness - i.e. where he was routinely 10 minutes late. In that scenario, it's a lot easier for an employer to make this pitch: I'm entitled to expect my employees to be punctual, and progressive discipline wasn't working; despite my clear directions and warnings, the employee failed to take appropriate measures to get to work on time.. Minor misconduct is hard to turn into just cause, but persistence in minor misconduct despite discipline can amount to insubordination.
There's also an interesting commentary about the impact of the investigative meeting - the Deputy Judge put little weight on Majewski's conduct in that meeting, arguing with management about his conduct, which the employer regarded as insubordinate. The Deputy Judge felt that having a frank discussion about the conduct is not disciplinable: "I see no reason why parties cannot have a robust meeting on a heated topic, ultimately agreeing to disagree....A dealer needs to respect management, no[t] cower to it." He got that right as well, in my respectful opinion, and it's an important distinction. Refusing to accept responsibility for misconduct can be aggravating, perhaps increasing the seriousness of the conduct (as opposed to, say, apologizing), but will not in and of itself amount to insubordination. If I sincerely think that an action was justified, then there's absolutely nothing wrong with me trying to make my case to the employer. (Of course, there are limits to the way in which I make my case.) At the end of the day, if neither one of us persuades the other, then management has the final word: You may think that you were justified; fine, you can think whatever you want, but it's going in your file regardless, and we expect you to hold to a higher standard in the future.
The result is right. The employer can't be faulted for wanting Majewski gone. If he really couldn't control his temper, it was probably just a matter of time before another incident on the floor. But just cause isn't really about prevention - it's about the seriousness of the misconduct in which the employee has engaged. And the decision to get rid of an employee because of what he might (or even 'probably will') do in the future, while a reasonable business decision, has to come with notice or pay in lieu.
That said, this case raises certain concerns about proportionality and access to justice. It has been almost 10 years since the dismissal. The second trial, on its own, was five days. For a Small Claims Court trial, that's insane. The value of the legal time going into that trial on each side no doubt rivalled or exceeded the value of the claim. That's without considering the costs of the Divisional Court appeal, or the first trial. And since the Small Claims Court is limited in its ability to award costs, that makes litigating a 5-day trial rather uneconomical for both sides.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.
The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.
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