| May 2006 | ||
| Welcome to the May 2006 edition of the TorontoJobs.ca Employer Newsletter.
"Employment Law" by Earl Altman "Conflict Matters" by Cecil Norman M.A. Advertise in our monthly Newsletter(s) Employment Law by Earl Altman Exercise Caution Before Dismissing An Employee for Cause Based on a Single Incident or Statement. A decision released by the Ontario Court of Appeal on April 1, 2006 highlights the danger in relying on a single incident of misconduct as cause for the dismissal of an employee, even where the employee is fairly junior with a minimum length of employment. In this case a non-managerial employee of IBM with only four years employment had a number of angry outbursts over the course of his employment. In 2001 the employee went on short term disability for medical reasons. IBM continued to pay him his full salary during his period of disability. However, when his short term disability benefits ended, he received no further payment from the insurer or IBM. He applied for long-term disability with IBM's disability carrier. That claim was rejected. When the IBM nurse advised the plaintiff that his claim for long term disability had been denied, the plaintiff reportedly replied that he could not return to work because he thought he might "thump somebody". When the nurse inquired as to what was meant by that comment, the employee reportedly stated that he would hit or otherwise hurt someone at work if he returned. As a result of this comment, IBM terminated his employment for cause. The employer felt that the employee's presence in the workplace represented a risk to the safety of the other employees. The employee sued for wrongful dismissal. The case proceeded to trial before a jury. The plaintiff argued that IBM fired him primarily because he was regarded as being a difficult employee. He further argued that IBM should have known that the statement he made was made out of frustration and should have allowed the employee some leeway as a result of his illness and the difficulties it was causing him. The jury agreed with the plaintiff and awarded nine months' pay in lieu of notice, and four months' pay for so-called "Wallace Damages" arising from the manner of his dismissal. It also awarded him $22,000.00 in punitive damages. Obviously, this decision represented a significant set-back for the employer and it appealed the decision to the Court of Appeal. The employee appealed for an increase in punitive damages. In a unanimous decision released on April 1, 2006, the Court of Appeal allowed a portion of the appeal with respect to the amount of notice and dismissed the balance of the appeal and cross-appeal. The Court of Appeal referred to the well established principle of high deference to jury awards, which are not to be set aside unless they are so patently unreasonable that no jury, after hearing the evidence, could have reached the verdict it did. After reviewing the evidence, the Court of Appeal concluded that there was ample evidence to support the jury's conclusion that, while it may have had concerns about the plaintiff's behavior and intentions, the defendant acted precipitously in firing him. The Court of Appeal therefore upheld the jury's finding that there was no cause for dismissal. The Court of Appeal was not as charitable with respect to the quantum of the award. It held that the jury's award of nine months' pay was not supportable by the existing case law and was therefore unreasonable. It substituted an award of four months based on the plaintiff's age of 42, the non-managerial nature of his position, and the fact that he had been employed for less than four years. The Court also referred to the absence of any evidence that the plaintiff had been induced to leave a previous job to work at IBM, or that there had been any representations at the time of hiring as to job security. It is interesting to note that the Court of Appeal also declined to interfere with the jury's award of Wallace Damages. These damages are awarded for harm caused by the manner of the dismissal of the employee. The Court of Appeal accepted the jury's categorization of the plaintiff's threats as a "cry for help" and that, given the employer's awareness of the nature of the plaintiff's illness it should have recognized it as such. The Court did give IBM a bit of success in overturning the award of $22,000.00 for punitive damages. The Court of Appeal held that such damages can only be awarded as compensation for an actionable wrong separate from the breach of contract represented by the dismissal. It held that there was no evidence on which the jury could have found such an independent actionable wrong. This case highlights the care that employers must exercise before relying on a single incident or statement to justify a dismissal for cause. Obviously, a serious threat may give rise to an argument for cause. However, such threats should be reviewed with legal counsel before taking any precipitous steps. About the author: Conflict Matters by Cecil Norman, M.A. Reliance on Third Party InterventionWhenever conflict arises, such as, the receipt of human rights or employment standards complaints, employers and / or employees rely on lawyers or consultants to help resolve the situation or provide representation and defense at a formal forum. The related stress in resolving workplace conflicts, including expenses and involving coworker's or close friends as witnesses, sometimes results in a poisoned work environment for not only the parties, but those indirectly involved as well. A companies' practice of seeking external help in the form of a representative to resolve workplace conflict provides the benefit of not disrupting management from its daily routine as well as demonstrating transparency for its resolution process. However, if the representative, be it a retired judge, lawyer or consultant, does not fully understand the dynamics of conflict and does not apply the workplace anti-harassment policy or the conflict resolution procedure using appropriate mediation strategies, then the resolution attempt may escalate the already existing poisoned work environment for some employees even though a settlement has been achieved and the griever might have received monetary compensation. This third party approach is the standard settlement tool advocated by the assisted mediation forums in Ontario. It is necessary to note that sometimes to make a complainant whole requires more than a monetary settlement. A letter of apology may go a long way if it is issued honestly and sincerely. Cecil Norman holds a Masters Degree in Conflict Resolution. His column on Conflict Matters appears monthly. You may reach him directly at his practice, Human Rights Advisory Services Inc. Email: cnorman@hras.ca TorontoJobs.ca CareerToons™
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