When Will an Employee’s Misconduct Justify Dismissal Without Notice?

By Irvin Schein, Litigation Lawyer, Mediator, and Arbitrator
Originally published at irvinschein.com.

In the recently-decided case of Czerniawski v. Corma Inc., Mr. Czerniawski’s employment was terminated without notice after 19 years of service because of alleged misconduct. The court had to address the question of whether or not the misconduct justified such an extreme measure.

Mr. Czerniawski was an assembler in a company that manufactured products in the corrugated plastic pipe industry. During his 19 years with the company, he was a good worker, and there had been no issues with his job performance. The only performance review he had ever received concluded that he was a solid, steady worker who was competent, dependable, and hard-working.

Unfortunately, Mr. Czerniawski had an angry exchange with a co-worker concerning items missing from his work station. There was evidence before the court that in the course of the encounter Mr. Czerniawski was screaming, pointing, and waving his arms. Both Mr. Czerniawski and the co-worker were angry, and voices were loud. There was no physical contact between these individuals and no threats were exchanged.

Mr. Czerniawski was asked to leave the workplace. He asked to be informed as to why he was being sent home, but no answer was provided and he refused to leave. The police were called in to escort him out of the building. He was told that his employer would conduct an investigation and that he was not to return to work until that process had been completed.

He went back to the workplace several days later to deliver a letter at the reception desk. The letter put forward Mr. Czerniawski’s side of the story.

Mr. Czerniawski was never consulted during the course of the investigation and when it was completed, Mr. Czerniawski’s employment was terminated without notice. Mr. Czerniawski then commenced this lawsuit, claiming that his employment had been wrongfully terminated and that he was entitled to reasonable notice of termination.

The trial judge had found that Mr. Czerniawski’s failure to go home when told to do so was insubordinate, but she also took into account the fact that he had asked why he was being sent home and that his question had not been answered.

She also felt that his attendance at the reception desk to deliver the letter was ill-advised, but noted that this had taken place four days after the incident had occurred, during which time no one from the company contacted him to discuss the issue or get his version of the facts. Furthermore, while he did go to the factory to deliver the letter, he made no attempt to go into the plant.

The trial judge concluded that had Mr. Czerniawski been permitted to respond to the allegations of misconduct with his side of the story as part of the investigation, the employer’s decision to terminate may have been different. In essence, she felt that the decision to terminate was out of proportion to the actual misconduct. As a result, she ruled that Mr. Czerniawski had been wrongfully dismissed and awarded damages equal to the notice to which he was entitled at common law.

There is no doubt that there are circumstances in which misconduct, including insubordination, can amount to just cause for termination without notice. The Supreme Court of Canada has made it clear that in arriving at this determination, the entire context must be considered. The misconduct has to be so grievous that “it intimates the employee’s abandonment of the intention to remain part of the employment relationship.” As a result, one must consider the particular facts of the alleged misconduct as well as the employee’s tenure and discipline history. A balance must be struck between the severity of the misconduct and the penalty that is imposed.

In this case, given the employee’s long and clean record and the extenuating circumstances surrounding his behavior and starting from the moment he was asked to leave the factory, the judge felt that termination was a disproportionate response to Mr. Czerniawski’s behaviour. Instead, the employer should have imposed some form of progressive discipline for the incident such as a disciplinary letter or a suspension in order to send the message that the behavior was unacceptable, including a warning that further behaviour of this nature could result in a dismissal. This is an important lesson for employers confronted with this type of situation. Where a long term employee, with a clean record, behaves unacceptably, it is critical that the employer ensure that the employee understands the nature of any disciplinary action being imposed, and that the employee is given every opportunity to tell his or her side of the story before a decision is made as to any penalty to be imposed. It is difficult to imagine how an employer can impose a penalty that is in proportion to the offence without first obtaining the employee’s side of the story and thereby obtaining a complete understanding of the events in issue. An employer who fails to take this step may end up making a costly mistake.

If you would like more information on the topic in this blog or on litigation, mediation, and arbitration services from Irvin Schein, please contact ischein@mindengross.com.