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Another botched investigation and dismissal

Employer on the hook for 14 months' damages shows importance of using 'contextual approach' and ensuring discipline is proportionate

By Stuart Rudner

While perhaps not as entertaining as the Nelson decision described in last week’s post, the recent Ontario Superior Court of Justice’s decision in Plester v. Polyone Canada Inc. provides another example of a situation where a long-service employee was accused of misconduct, an investigation was carried out and the individual was dismissed for cause.

And again, in this case, the court found that when all of the relevant circumstances were considered, the employer had not met its burden of proving there was just cause for dismissal. The experience undoubtedly cost the company a fair amount of money when one considers damages awarded and legal costs.

In Plester, John Plester had been promoted several times during his 17 years with the company, ultimately achieving the position of line supervisor, which he held for the last six years of his employment. His disciplinary record was unremarkable, and the relatively trivial matters contained therein all related to incidents pre-dating his time as the supervisor.

On Sept. 23, 2009, Plester made what the court characterized as a “serious mistake at work.” Specifically, he failed to lock out a machine he was cleaning, which put himself and others at risk of injury.

The evidence showed there was a “strong culture of health and safety” at the company. Policies and procedures to promote safety were strictly enforced, and there was a “cardinal rule” requiring that employees report any violations, including minor ones. He compounded the error by failing to report the incident, even after one of his colleagues commented he had broken the cardinal rule. Others did advise management, and an investigation was launched immediately.

Plester admitted that he knew he should have reported the incident, but he was frustrated by the events and embarrassed by what had happened. He knew he would be disciplined, and expected a suspension or perhaps a demotion.

The court commented there were “a number of procedural improvements to the process that would immediately be apparent to anyone schooled in the basics of due process.”

The court went on to make the following comments/suggestions:

•all notes should have been retained — most were, but some summaries were done and original notes shredded

•interviews should all be done separately

•the initial report included the term “wilful misconduct,” which suggested the writer might have had tunnel vision or already concluded what would happen

•the initial draft appeared to be substantively identical to the final report, suggesting a decision was reached without full discussion or contemplation

•there was no apparent review of similar situations or of comparable outcomes

•once the possibility of dismissal for cause was seen as a potential outcome, Plester should have been advised and given an opportunity to give a more complete statement.

The court went on to consider whether there was just cause for dismissal. There was little issue Plester had engaged in misconduct. However, the question was what the appropriate form of discipline would be. The court confirmed the contextual approach must be used in order to consider all relevant circumstances, as well as the proportionality of the proposed discipline.

The court found the failure to lock off the equipment was serious, and failure to report the incident was of even greater concern. The fact Plester was a supervisor increased the severity of that breach.

With respect to proportionality, the court considered there had been similar incidents in the past involving other workers, and the evidence suggested none had been dismissed for cause. Ultimately, the court concluded a lesser form of discipline would have appropriate. Plester was awarded 14 months’ pay in lieu of notice.

The case is another reminder that it’s important to conduct a fair and proper investigation whenever there is an allegation of misconduct, and any decision with respect to dismissal must be undertaken using the contextual approach and ensuring that the extent of the discipline is proportionate to the seriousness of the offence.

For more information see:

Plester v. Polyone Canada Inc., 2011 ONSC 6068 (Ont. S.C.J.)

Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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