Employers are often told by their lawyers that satisfying a Court that there is “just cause” to terminate an employee is a very a difficult thing to do. Employers are also often advised that discipline for safety infractions is a critical part of establishing a due diligence defence to charges under the Occupational Health and Safety Act.
There have been a number of labour arbitration cases over the years where employers have successfully argued that a serious safety violation can establish just cause for the termination of a worker’s employment. However, in one recent case the Ontario Superior Court of Justice determined that a serious safety violation by a member of senior management did not represent just cause.
The case involved an assistant manager of a big box retailer who allowed a worker who was confined to a wheelchair to be moved to an inaccessible area of the store with an order picker truck. The practice of moving a person with an order picker truck was a blatant violation of the company’s safety rules which the assistant manager was aware of. Fortunately, the lifts were completed successfully and there were no injuries
The Court accepted the employer’s argument that the assistant manager breached his obligations to the company by failing to take the steps that he could have taken to prevent the lifts. The employer argued that the actions of the assistant manager exposed an employee to a serious risk of injury, or even death, in the workplace and placed the company at risk of prosecution under the Occupational Health and Safety Act.
The Court agreed with the employer that the assistant manager’s actions represented serious misconduct. However, the Court went on to find that the misconduct was not severe enough to meet the high legal threshold for just cause. The Court stated that this case was a situation in which a stern warning to never again to permit a safety infraction by an employee would have sufficed to ensure that neither the incident nor another one like it would ever occur under the assistant manager’s watch.
The Court also noted that the employer may have had legitimate business reasons for terminating the assistant manager’s employment, but these reasons were insufficient to meet the standard required for just cause. The assistant manager was 64 years old and had less than four years of service with the employer. He was awarded ten months pay in lieu of notice and an amount for legal costs. The worker’s age was a significant factor in the length of the notice period.
Many employers understandably find it frustrating when Courts and labour arbitrators refuse to uphold terminations for serious safety violations. The employer clearly argued that it was exposed to a risk of prosecution by the Ministry of Labour. However, the Court did not appear to give this argument significant weight and did not discuss in any detail the significant legal consequences of an OHSA conviction for the employer. It is our view that the Court ought to have placed more weight on this aspect of the employer’s argument. The employer could very well have been fined in excess of $300,000 if a fatality had occurred. It is difficult to say whether the Court’s decision would have been the same if a serious injury or fatality had occurred.
In this case there was no question that the assistant manager’s misconduct was serious and that there was a clear risk of serious injury or death to an employee. It is clear from this case that a single incident of a senior manager tolerating a serious safety violation will not always result in a finding of just cause by a civil court. However, from an occupational health and safety due diligence perspective it was critical that the assistant manager face severe discipline or termination. The reality is that a failure to discipline for this type of behaviour would almost certainly be fatal to a due diligence defence. It will be interesting to see if the employer chooses to appeal this decision.
