Written by: Irvin Schein

The recent decision of the Ontario Superior Court in Barton v. Rona Ontario Inc. sheds interesting light on an issue relating to wrongful dismissal that is rarely articulated. That issue has to do with the difference between the way in which a company assesses misconduct and its need to respond in a way which sends an appropriate message to its other employees, on the one hand, and the analysis that a court will undertake in assessing the situation, on the other hand.

The Court will not consider the totality of the business reasons why an employer might wish to terminate an employee.

In this case, Mr. Barton was an assistant store manager at a Rona hardware store in Barrie, Ontario.

In April, 2009, a computerized training program was scheduled to take place at the training centre at the store. The training centre was on the second floor and not accessible by individuals in wheelchairs.

One of the store’s employees was a Mr. Malmstrom, who was wheelchair-bound. He wanted to attend the seminar and the management team at the store wanted to accommodate him. Unfortunately, there was no conventional way of bringing him up to the second floor of the store.

Mr. Malmstrom and one of his colleagues, Mr. Stirk, thought that one way to accommodate Mr. Malmstrom would be to use an order picker truck and lift Mr. Malmstrom in his wheelchair on a skid to the second floor.

This idea was related to Mr. Barton before it took place. While the evidence was somewhat equivocal, the Court accepted that Mr. Barton had the opportunity to prevent this event from taking place but failed to do so.

On the day of the training seminar, the lift truck was used to transport Mr. Malmstrom to the second floor. After the seminar, the lift truck was used again to bring Mr. Malmstrom back down to the ground floor. Each of these processes took place without any incident whatsoever. However, both of these incidents constituted clear breaches of Rona’s safety rules. The event was reported and after a full investigation, Rona terminated the employment of both Mr. Barton and Mr. Stirk without notice or payment in lieu of notice. Mr. Barton then sued.

The Court carefully reviewed the law as articulated by the Supreme Court of Canada and the Ontario Court of Appeal on the issue of what misconduct on the part of an employee will constitute just cause for termination.

In terms of general principles, the Supreme Court of Canada has made it clear that proportionality, in the sense of striking an effective balance between the severity of the misconduct and the penalty to be imposed, is required. The Court must determine the nature and seriousness of the misconduct in order to assess whether or not it goes to the heart of the employment relationship. The Court must consider of the surrounding circumstances when doing so and then determine whether or not dismissal is a proportional response.

The cases are clear that dismissal is an extreme measure and has been referred to in previous cases as the “capital punishment of employment law”.

The evidence before the Court made it clear that Rona is an organization that is completely committed to workplace safety as well reflected in its documentation and in its practices. It has published an employee handbook clearly stating its expectations with respect to workplace safety, and making it clear that Rona will enforce safety rules strictly and take appropriate action against any employee violating any of Rona’s safety rules.

There was no doubt both that the use of the lift truck violated the policy, and that Mr. Barton was well aware of it.

Having said that, the Court was also made aware of the fact that Mr. Barton had no prior record of similar conduct. His performance appraisals were good, he had no disciplinary record, he did not perform or witness the lift or the descent, and he did not specifically prohibit either maneuver.

The Court also recognized that given Mr. Barton’s senior position and the importance to the company’s culture of the strict enforcement of its safety rules, Rona may well have formed a view that Mr. Barton lacked the character required of a senior management person and did not want him back. As the judge indicated, Rona could have decided that, given the large number of store staff who witnessed the incident and assisted in the lift and the descent, it was necessary to make an example of Mr. Barton both for internal and external audiences. Accordingly, Rona chose to terminate Mr. Barton’s employment for business reasons that seemed appropriate.

However, the Court’s assessment is much more specific. The Court will not consider the totality of the business reasons why an employer might wish to terminate an employee. Unlike the employer, the Court will focus on the specific acts of the employee’s misconduct and whether those in and of themselves are capable of justifying termination.

In this case, and while the Court recognized that Mr. Barton’s misconduct was serious, it concluded that his specific acts of misconduct were not severe enough to warrant his dismissal. The Court felt that in this situation, a stern warning to him never again to permit a safety violation by an employee would have been sufficient. This was particularly the case given that nothing in his excellent work record suggested that he would not be amenable to such discipline or that he would repeat such misconduct in the future.

Given that the Court could not find that his misconduct met the threshold of striking at the heart of the employment relationship, it concluded that Rona had breached Mr. Barton’s employment contract, and Mr. Barton was entitled to damages as a result.

It is always tempting for an employer, whether its workforce is large or small, to make decisions about termination in the context of the impact of possible misconduct on the workforce as a whole. Every employer will be concerned about how the rest of the workforce will react to the way in which misconduct is dealt with by an employer. And every employer will be interested in ensuring that a transgressing employee is dealt with in such a manner as to send a clear message to the rest of the workforce. This case is a clear reminder to all employers, however, that this type of approach will have very little to do with the analysis that a court will undertake in assessing whether or not the transgression in question constitutes just cause for termination.

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