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CANADIAN HR LAW
Apr 28, 2014

Quick termination not cleared for takeoff

Video showing Air Canada workers dropping baggage not necessarily cause for dismissal – remember the contextual approach?
    

By Stuart Rudner

Recently, we were treated to a video of two Air Canada employees dropping passengers’ carry-on baggage into a bin several meters below a plane while it was readying for departure at Pearson International Airport in Toronto. The video, taken by a passenger, quickly became an Internet sensation and prompted an outcry from the traveling public. People were aghast at the notion that their belongings, including breakables, might be treated in the same manner. Calls for the employees to be fired did not take long to emerge.

I claim no personal knowledge with respect to Air Canada's handling of this matter. The news reports suggest the two individuals had been suspended, with other comments suggesting they have been advised that their employment will be terminated pending the outcome of an investigation. The incident is an excellent reminder of two important points:

Employees: Never assume your actions are not being observed, and always conduct yourself at work as if they were.

Employers: No matter how egregious an employee's conduct appears to be, decisions regarding potential discipline or dismissal should never be made in haste or out of emotion, and only once a proper investigation has been concluded.

In the Air Canada incident, it is hard to imagine how the employees could have been under the impression that their actions would go unnoticed, as they occurred on the tarmac of our nation's busiest airport with passengers on board the plane they were loading. However, even for employees that work in isolated areas, the prevalence of cellphone cameras and other monitoring tools make it easy for potentially questionable or inappropriate conduct to be discovered. Employees should be even more cautious than they may have been in the past about engaging in any conduct that might lead to discipline. Particularly where photographs or video evidence is available, it is even more difficult to dispute the allegations.

With respect to how the two employees in this incident should be treated, I have said many times that whether or not just cause for dismissal exists cannot be judged solely based upon the misconduct in question. A contextual approach must be used which considers all relevant circumstances. For some previous discussions, see these posts:

http://www.hrreporter.com/blog/Canadian-HR-Law/archive/2014/02/11/the-high-cost-of-rushing-to-judgment

http://www.hrreporter.com/blog/Canadian-HR-Law/archive/2013/06/25/just-cause-not-a-lost-cause

http://www.hrreporter.com/blog/Canadian-HR-Law/archive/2013/10/15/assaulting-urinating-on-colleagues-just-cause-for-dismissal

In this case, the situation will be complicated by the fact that, presumably, the employees are part of the collective bargaining unit and therefore governed by a collective agreement. Specific disciplinary steps are likely set out in that agreement. For non-unionized employers, there will be more discretion with respect to the imposition of discipline, but summary dismissal is a particularly harsh consequence, often referred to as the "capital punishment of employment law," and courts will not uphold summary dismissal where it is seen as being a disproportionately severe penalty in all of the circumstances.

For a detailed discussion of just cause for dismissal, along with a thorough set of case summaries, see the text I wrote a few years ago which is updated bi-annually: You’re Fired! Just Cause for Dismissal in Canada, available from Thomson Reuters.

    
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