It seemed like a good idea at the time. Kai Malmstrom, a project guide co-ordinator at a Rona store in Barrie, Ont., wanted to attend a training session. The problem? Malmstrom is wheelchair-bound and the session was to take place on an inaccessible floor.
So, he and a colleague decided they would use an order-picker truck to lift him up to the mezzanine level.
On April 16, 2009, the evening before the session was to take place, the two approached assistant store manager Kerry Barton at an in-store event. They mentioned their idea but Barton reminded them someone else was going to relate the training session to Malmstrom and he expected they would not continue with their plan.
But the next morning, Malmstrom, with the assistance and observation of several other workers (but not Barton), was lifted to the second level so he could attend the session, and he came down the same way. However, the incident was reported to HR and Barton — a three-and-a-half-year employee responsible for about 140 employees — was terminated by Rona for just cause.
However, he sued for wrongful dismissal and won, as outlined in the recent ruling in Barton v. Rona Ontario. He was awarded 10 months’ pay in lieu of notice or about $58,000.
It’s a textbook example of when an employer should not go to trial, according to Howard Levitt, a senior partner at law firm Levitt in Toronto.
“You’d think counsel would have told them: ‘This is unwinnable and given you’re not accommodating this chap, it will be a huge embarrassment when that comes out in the course of the trial judgments.’”
However, it’s very easy to criticize Rona, said Norm Keith, a partner at law firm Gowlings in Toronto, but the company was right to hold Barton accountable for failing to follow safety rules.
“When I see a case like this, it really upsets me because employers trying to do the right thing and play safety as a priority aren’t always given credit for that and not supported when they do discipline, up to and including discharge,” he said. “(Ontario) is the most aggressive provincial government in Canada right now for prosecuting employers — that is undoubtedly what Rona was aware of… when they made this decision to terminate the worker’s employment.”
In considering the case, Judge Peter Lauwers cited the 2001 Supreme Court case of McKinley v. B.C. Tel which set the framework for deciding whether a worker’s wrongful act constitutes just cause for termination. The court adopted a contextual approach and concluded the “principle of proportionality” requires an effective balance between the severity of the misconduct and the sanction imposed.
The Rona case is really just an application of McKinley, said Kevin MacDonald, a lawyer at MacDonald Associates in Richmond Hill, Ont., who represented Barton. But there are significant differences between the two cases and if someone had been injured in the Rona case, the outcome would have been justifiable.
“That’s what McKinley is all about — you’ve got to look at all of the surrounding circumstances and make sure the punishment fits the crime and that it’s proportional,” he said.
An employer can’t have blinders on, as Rona did, without regard to all of the circumstances, said MacDonald.
“How extreme does conduct have to be to provide justification for a one-time, one-event termination with cause without prior warning of any kind?”
Safety rules violated
The judge also highlighted Rona’s focus on safety and while Barton did not personally breach the safety rules or give permission for the lift or descent, it was his obligation as a manager to enforce the rules and ensure neither the driver nor Malmstrom did anything that would violate the rules.
Barton’s conduct also exposed Rona to liability under Ontario’s Occupational Health and Safety Act (OHSA) and he exposed an employee to serious risk of injury or death, said Rona’s lawyer Sonia Regenbogen, partner at Heenan Blaikie in Toronto.
This resulted in irreparable harm to his employment relationship, she said.
But Barton didn’t know it was happening, said Levitt.
“It’s hard to find cause for discharge without intentionality. If the person is oblivious to what is occurring, how can they be liable for it, in a culpable sense? There’s no culpability on his part.”
If Barton had been present and allowed the incident to happen, it would have been cause for discharge because it’s a serious safety violation, said Levitt.
But simply because a manager isn’t present when an unsafe act occurs doesn’t stop the Ministry of Labour from prosecuting an employer or manager, said Keith.
“Supervisory and managerial duties go beyond just when you’re there, when you’re directing it. So that’s the discrepancy,” he said.
“Even if the court disagrees that the penalty was too harsh, and that’s essentially what it said, the court did recognize the importance of safety and safety policies being followed in the workplace.”
HR initially sympathetic
After investigating the incident, an HR advisor at Rona wrote in a memo that this type of incident would not happen again and “it would break my heart if someone was to lose their job as a result… everyone loves Kai and was just trying to give him training access he deserves to obtain.”
However, she later testified that once all the facts were known to her — including the fact Malmstrom was not strapped in during the descent and the driver did not wear a safety harness — she supported termination (as advocated by head office).
If somebody was killed because Barton didn’t follow the safety rules, Rona and possibly management would be prosecuted by Ontario’s Ministry of Labour, said Keith, adding employers and supervisors can face heavy penalties and possible jail time.
“Where the judgment becomes problematic is that it doesn’t follow through on the seriousness of health and safety laws, the seriousness of safety consequences for workers and the seriousness of the penalties for employers if they don’t follow the laws,” he said. “Does the employer have to wait before someone is injured or killed before discipline? The answer should be no.”
Rona declined to give an interview but did say it takes safety and security very seriously.
“Supervisors and managers have a legal responsibility to ensure the safety of their employees. In this situation, the manager who had the power to offer training alternatives and ensure the security of a disabled employee failed to take action. Due to violations of (OHSA), disciplinary measures were taken,” said Valerie Lamarre, senior advisor for communications and public affairs at Rona in Montreal. “And even if this decision was difficult to make, we do believe there were ways to accommodate our disabled employee while ensuring his safety.”
But it was company representatives outside the store who scheduled training on the second storey of the building, said MacDonald. And Barton attempted to accommodate Malmstrom by planning to have someone relate the training to him afterwards.
“It’s surprising that Rona attempts to distance itself from that obligation,” he said.
In the end, Barton had good performance appraisals, no disciplinary record, did not give permission for the lift or descent and tried, though ineffectually, to prevent the incident, which he did not perform or witness, said the judge.
“Barton’s specific acts of misconduct are not severe enough to warrant his dismissal. This is a situation in which a stern warning to Mr. Barton never again to permit a safety infraction by an employee would have sufficed.”
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