Employee grabbed co-worker's arm after bagel was taken
This instalment of You Make the Call features an employee who was fired after an incident with a co-worker and a bagel.
Marcela Garreton, 47, started employment with Complete Innovations (CI), a provider of mobile tracking software for the Canadian and U.S. markets based in Markham, Ont., in late 2009 on a six-month contract. At the end of the contract, CI hired her on a full-time basis as a trainer.
Garreton’s new employment contract included a provision that allowed her to be terminated immediately without notice for a failure to discharge duties and “for cause under common law or statute law or for breach of the terms of the agreement.” In addition, the provision allowed the contract to be terminated without cause with one week’s notice if Garreton had been with the company between three months and one year, two weeks’ notice for employment between one and three years, and one additional week for each additional year up to eight weeks after that. It also stated that “Complete Innovations shall maintain on your behalf your employee benefits for a period of not less than the period require by applicable statute.”
On June 7, 2012, Garreton purchased bagels for an internal training session she was leading. Another employee who wasn’t part of the training session asked her supervisor if she could take a bagel, to which the supervisor agreed. When the employee came to take a bagel, Garreton asked her to wait until the attendees had gotten their food. However, the employee grabbed a bagel and Garreton grabbed the employee’s wrist. The employee spoke a profanity at her and left with the bagel.
The employee reported the incident to the CEO, who interviewed Garreton and suspended her with pay for two days for retaliating with physical violence and failing "to adhere to the policies and procedures of your job.” Garreton was given a letter of suspension that stated it was “formal disciplinary action.”
When Garreton returned to work after serving the two-day suspension, she was given a letter of termination that referred to the bagel incident as well as two incidents more than one year earlier for which she had received warning letters — one involving insubordination to a superior and another for a client complaint about her attitude.
Garreton sued for wrongful dismissal.
You Make the Call
Was the employer entitled to dismiss the employer?
OR
Was the employee wrongfully dismissed?
If you said Garreton was wrongfully dismissed, you’re right. The trial judge found Garreton was dismissed without cause and awarded her five months’ notice. CI appealed on the basis that the trial judge erred in not considering the employment agreement in determining whether the dismissal was wrongful, but the appeal court upheld the decision.
The appeal court agreed the trial judge erred by not considering whether the employment agreement’s termination provision should have been in effect, which would have limited Garreton’s notice to two weeks’ pay plus benefits. However, the appeal court noted that while the termination provision was consistent with the law for Garreton as an employee of less than three years, had she lasted more than three years the provision would have been in breach of employment standards legislation. Employers and employees cannot contract out of employment standards minimums, so this made the termination provision void and unenforceable, said the appeal court.
However, while the trial court failed to properly consider the termination provision, it didn’t affect the ultimate decision. The court found that Garreton’s misconduct wasn’t serious enough to be considered workplace violence and her two previous incidents weren’t serious either, nor were they recent. And most importantly, Garreton was already disciplined for the bagel incident with her two-day suspension that was referred to as formal disciplinary action. By dismissing her for the same incident when she returned from her suspension, CI put Garreton in “double jeopardy” — disciplining her twice for the same offence. This made the termination wrongful.
The appeal court upheld the trial court’s decision that Garreton was wrongfully dismissed and deserved five months’ notice, since the termination provision and its limit of two weeks’ notice was void and unenforceable.
For more information see:
•Garreton v. Complete Innovations Inc. 2016 CarswellOnt 2500 (Ont. Div. Ct.).
