Today’s edition of “Cause or Not Cause?” throwing a punch at a work event
“Surely hitting a colleague at a work event warrants a termination for cause, right!?”
Not so fast. In Ontario, and in Canada more broadly, termination for cause is a very high bar. Terminating an employee summarily for misconduct requires not only an assessment of the behaviour in issue, but also a careful look at the context, the employee’s history with the company, and whether lesser disciplinary options may suffice.
Here are a couple of illustrative cases:
- In Ontario (Human Rights Commission) v. Ford Motor Co. of Canada Ltd. an employee was terminated following a number of acts of misconduct, including threats and a physical altercation. The employee alleged that his behaviour had to be viewed in the context of a poisoned work environment in which he had endured racial harassment. The Human Rights Board determined the employer’s decision to dismiss the employee was discriminatory because although threats and physical contact warranted discipline, in the context where the behaviour was linked to harassment on the basis of a protected ground, termination was too severe a consequence. The Ontario Divisional Court agreed and dismissed the employer’s appeal.
- In Walton Enterprises v. Lombardi, the Ontario Divisional Court again considered the case of an employee who was terminated for cause following a physical altercation in the workplace. Here, the Ontario Human Rights Tribunal also found that the dismissal was discriminatory based on its finding that there was a causal link between the altercation and the fact that the employee suffered from depression and had been the subject of harassment by another employee in the workplace. This time the Divisional Court disagreed, finding that there was insufficient evidence of a causal link but also pointing to precedents from Alberta and British Columbia which provide that even if an employee can establish a causal link between the protected ground and the misconduct, that does not mean the employer’s decision to terminate the employee is necessarily discriminatory if: (1) the misconduct was serious (i.e. a crime); (2) the disability was not the reason for termination or part of the reason for termination;[1] and (3) where the employee is treated/disciplined in the same manner for the misconduct as any other employee.[2]
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[1] I query how an employer can possibly terminate an employee for behaviour causally linked to a disability or other protected ground and establish that the protected ground was not a part of its decision to terminate.
[2] I have some trouble here too – it is well established that a “formal equality” approach wherein employees are treated the same irrespective of their disability (or other protected ground) is not appropriate in many cases and I would argue there absolutely are circumstances in which the fact misconduct is connected to or caused by a disability or other protected ground would require employers to treat the situation differently. That is a much longer post for another day.