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Does threatening workplace safety equal just cause?

Can a lack of common sense that threatens safety be fixed through progressive discipline?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

When an employee is guilty of misconduct at work, the employer is generally required to address the situation through a process of progressive discipline. It’s important for the employer to not be too hasty in implementing the most severe form of discipline — dismissal — too soon.

Numerous wrongful dismissal decisions have demonstrated, in Canadian employment law, that it can be very difficult to fire someone for cause. Unless an employee’s conduct is very serious — which is open to interpretation — dismissal for cause can’t happen without a process of progressive discipline that gives the employee an opportunity to mend her ways.

But how can an employer determine what constitutes misconduct serious enough to constitute just cause for dismissal? Court files are littered with cases where an employer was certain an employee’s actions or behaviour were so bad firing was the only solution, only to find that wasn’t the case. Should being a threat to the safety of the workplace be an automatic cause for dismissal?

There’s been some controversy in Toronto after three different bus drivers were filmed texting or talking on their cellphones while driving buses in the same week. Similar circumstances happened last year when a bus driver in Portland, Oregon, was spotted browsing an ereader while driving his bus and another in Birmingham, England, was actually reading a paperback book behind the wheel.

These situations were causes of concern because it represented a threat to public safety and the drivers were in a position where their employers, as well as the general public, had to trust them to act safely. But are they just cause for dismissal without previous discipline?

Progessive discipline involves a series of escalating actions with each instance of misconduct, often starting with an oral or written warning through suspensions and finally dismissal. The key concept is that employees must be aware their misconduct is unacceptable and be given an opportunity to remedy it. However, if the misconduct is bad enough that it might harm the employer, irreparably damage the employment relationship or cause a safety risk to others, an employer might be able to skip right to dismissal. As with every case, it depends on the individual facts.

Of course, things are different in a unionized environment and the disciplinary process is usually set out in a collective agreement. In the situations outlined above, the bus drivers would each be members of a transit union, so they are unlikely to be fired unless they already have a history of serious misconduct. But maybe there should be exceptions when it comes to safety risks.

In all the cases, the drivers were not fully prepared to react if a person, car or bicycle swerved in front of them. Serious injury or death was a possible outcome of their actions. In any workplace, if an employee’s actions cause a real risk like that and a reasonable person should be aware of the consequences of those actions, should dismissal be an option for the employer?

Can it be expected to keep the employee on and trust the employee will not do it again, even though common sense should have prevented the misconduct in the first place?

Update: Both the Toronto Star and Toronto Sun reported on Feb. 1 that the three TTC drivers were being fired for their misconduct. Both the TTC and the union declined to comment as the disciplinary process was still ongoing. TTC policy has prohibited texting while driving for years and the practice has been illegal in Ontario since October 2009.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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