Heat of the moment decision costly

One incident of insolent behaviour will not justify summary dismissal in most cases: court

If there’s one rule for employers to remember when dismissing an employee, it might be this: One incident of insolent behaviour will not usually justify summary dismissal.

That knowledge would have come in handy for a supervisor at a New Brunswick body repair shop who fired an employee on the spot following a heated argument. The employee, Gerald Henry, sued for wrongful dismissal but lost his case before the New Brunswick Court of Queen’s Bench. He appealed that decision and was recently awarded more than $14,000 in damages by the New Brunswick Court of Appeal.

Henry was hired by Foxco in 1993 as a body repair technician. He was 31 and was earning $31,200 per year when he was dismissed on Oct. 20, 2000. On that day he was asked to remove decals from two vans. While doing so, other employees asked him to assist with other projects and he complied. Later on his supervisor, Peter Graham, asked him about the progress of his work on the vans. A confrontation ensued. This is how the trial judge summarized Graham’s evidence:

“He confirms that on the day of the firing he said to Henry, ‘I hope that’s the second truck.’ Henry replied, ‘No. It’s the first. Maybe you’d like to do it yourself.’ He says Henry was very irate and he was trying to calm him down. Henry invited him to fire him five or six times and finally Graham said, ‘OK, you’re fired.’ Graham says he fired Henry because of the ‘way he was treating me. He was completely out of line.’”

In the original decision, the trial judge found Graham was justified in firing Henry because:

•Graham, whose job it was to manage the shop, was telling Henry to work more quickly, something which he had told him to do before;

•Henry overreacted and became loud and abusive;

•Graham tried to defuse the situation but Henry refused to calm down; and

•the confrontation took place in the presence of at least three other employees who were subject to Graham’s supervision.

In effect, because Henry was refusing to be directed by Graham, he was repudiating an essential term of his employment, the trial judge ruled.

But the Court of Appeal begged to differ. While it agreed an employer could terminate an employee if a single incident completely destroyed the employment relationship, it found the facts in this case didn’t warrant such a harsh penalty.

“This is a case in which an employee is guilty of insolence after being told he was not working quickly enough. Additionally he was insubordinate in refusing to go home to ‘cool off’ when told to do so,” wrote Justice Larlee in the Court of Appeal’s decision.

He said Henry’s actions were not a fundamental breach of the employment contract, and this incident was not serious enough to destroy the employment relationship. The court awarded Henry $14,200 plus interest at the rate of seven per cent from Oct. 20, 2000, to March 19, 2004 — the date of judgment.

When termination is warranted

Justice Robertson, of the Court of Appeal, outlined when a single incident of insolence would justify summary dismissal of an employee in his concurring opinion of the decision. He said there are three circumstances where termination would be warranted:

•the employee and superior are no longer capable of maintaining a working relationship;

•the incident undermined the supervisor’s credibility in the workplace and, correlatively, his ability to supervise effectively; and

•that because of the incident the employer suffered a material financial loss, a loss of reputation or its business interests were seriously prejudiced.

Justice Robertson said Henry’s behaviour did not warrant dismissal because the employer did not establish that this isolated incident rendered it impossible or impracticable for the employee and the supervisor to maintain a working relationship. The incident occurred in the employer’s workshop and outside the auditory range of customers and the public.

“Many things are said and done in the heat of the moment that, on reflection, are regretted by all,” said Justice Robertson. “The facts of the present case do not warrant the ultimate penalty in employment law: dismissal.”

Foxco should have attempted to defuse the situation by imposing a cooling-off period before deciding on the appropriate penalty, he said.

“Had Foxco tried to effect a reconciliation between Mr. Henry and his supervisor, and had Mr. Henry remained obstinate in his attitude, then Foxco’s argument of dismissal for just cause might have been more compelling,” he said.

For more information see:

Henry v. Foxco Ltd., 2004 CarswellNB 127, 31 C.C.E.L. (3d) 72, 2004 NBCA 22 (N.B. C.A.)

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