When it comes to employee performance management, can health and safety violations justify the "for cause" termination of an employee? The short answer to this question is yes and no. Ultimately, there is no fixed rule as to the degree of misconduct required to justify a dismissal for just cause. So, where does that leave employers when it comes to understanding whether a just cause termination is appropriate for a health and safety violation?
Let's start with the fact that just cause for employee misconduct is very difficult to establish. Essentially, the misconduct must be so grievous as to breach the "fundamental terms and conditions" of the employment relationship. The employee's employment history, remorse and planned course of action in response to the misconduct are relevant to the determination of discipline. In other words, not every instance of employee misconduct will amount to just cause.
When it comes to health and safety violations, a single incident may be sufficient to constitute just cause. If a single incident breaches the trust or faith that is inherent in the employment relationship, or is fundamentally inconsistent with the employee's employment obligations, single incident just cause may be found.
In Birchall v. Canadian Helicopter Ltd.[1], an airline pilot consumed large amounts of alcohol prior to his scheduled shift. In Balzer v. Federated Co-operatives Ltd.[2], a propane coordinator responsible for occupational health and safety enforcement, violated emergency evacuation and reporting safety rules after causing a propane spill. Termination for cause was upheld for these single incidents.
Typically, a pattern of misconduct is required to justify a termination for cause. Therefore, many employers rely on a system of progressive discipline when it comes to dealing with employee misconduct. Progressive discipline is a process by which an employer imposes disciplinary measures of increasing severity to correct employee misconduct. Where the employer has established objective standards of performance, communicated the standards to the employee and then the employee has failed to meet those standards, progressive discipline may be appropriate. It usually involves:
- a less severe consequence for a first offence;
- warning the employee that further misconduct will result in more severe consequences;
- giving the employee the time and assistance necessary to meet expectations;
- imposing increasingly severe consequences for subsequent offences; and
- providing a final warning that further misconduct will result in dismissal for cause.
Properly implemented progressive discipline for health and safety violations can support a case for just cause dismissal. In Hudson Bay Mining and Smelting Company[3], the grievor was a 15-year employee who worked in a copper smelter. He was responsible for moving extremely hot powder material in rail cars. He was terminated for the improper work practice of bumping calcine cars. The grievor had been disciplined previously for this practice and was on step four of the company's five-step disciplinary program. The arbitrator held that the grievor created a safety risk by his actions. His record was identified as poor, with prior, recent discipline for the same practice. The termination was upheld.
It is important that any progressive discipline be properly implemented. Failure to do so may jeopardize an employer's just cause defence and lead to the conclusion that each incident of misconduct should be viewed in isolation, rather than a cumulative pattern of misconduct. The most common reasons that an otherwise cumulative incident just cause defence may fail, are:
- Failing to investigate the misconduct or providing the employee an opportunity to provide his or her version of events;
- Failing to warn the employee that engaging in further misconduct will amount to just cause; or
- Condoning the misconduct.
Where an employee is summarily dismissed on disciplinary grounds, adjudicators will typically consider whether:
- There was just and reasonable cause for some form of discipline;
- Termination for cause was an excessive disciplinary response to the circumstances; or
- Another measure should be substituted, if termination for cause was an excessive response.
If the dismissal was unjust, some adjudicators have the power to substitute another form of discipline and reinstate the employee with back pay covering the time frame between the dismissal and the decision date. In United Steelworkers, Local 9316 v Narl Refining LP[4], an oil refinery worker was promptly terminated when he issued a safety permit that improperly indicated a confined space was safe for entry. The union grieved the decision and argued that two other employees were disciplined but not dismissed for the same incident. The arbitrator agreed and ordered the employer to reinstate the terminated employee, but with a 12-month unpaid suspension. In reaching his decision, the arbitrator determined:
…There were inconsistent disciplinary penalties in this case, when comparing the discharge of the Grievor with the six week suspension issued to the Maintenance Supervisor and the four week suspension issued to the Operations Supervisor, and the fact that no discipline was considered for night shift employees with respect to the entry into the confined space on the night shift. The Grievor was at fault and is deserving of a significant disciplinary penalty. However, I find that the penalty of discharge imposed on the Grievor is disproportionate to his responsibility compared to the responsibility of others and the disciplinary penalties imposed on others with respect to the same incident.[5]
When it comes to enacting discipline for health and safety violations, the appropriate penalty in any given case should always be reviewed from the perspective of progressive discipline. Where an employee's misconduct is not reconcilable with maintaining an employment relationship, a decision to terminate for just cause may be appropriate. In general, termination for cause is upheld where the employee had a long history of past discipline, and the incident was treated as a culminating event. Where there was a lack of prior discipline in combination with long service, unionized employees may be reinstated to employment, with a suspension substituted for the termination. Single incident just cause may be found when an employee's conduct jeopardizes the safety of others.
[1] Birchall v. Canadian Helicopter Ltd. / Hélicoptères Canadiens Ltée, 1999 CarswellBC 2303 (B.C. C.A.)
[2] Balzer v. Federated Co-operatives Ltd., 2014 CarswellSask 69 (Sask Q.B.)
[3] Hudson Bay Mining and Smelting Co. and USW, Local 7106 (Goodman), Re, 2008 CarswellOnt 10251, 93 C.L.A.S. 178
[4] United Steelworkers, Local 9316 v Narl Refining LP, 2019 CanLII 67932 (NL LA)
[5] ibid para 60
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