Summary Dismissal Not Warranted Despite Breach of “Cardinal Rule”

Plester v. PolyOne Canada Inc., 2013 ONCA 47 (CanLII), released January 28, 2013, demonstrates that even in circumstances of serious misconduct, summary dismissal of an employee may not be warranted. The Court of Appeal decision affirms, in part, Justice Wein’s decision in Plester v. Polyone Canada Inc., 2011 ONSC 6068 (CanLII).

By way of background, the case involved an employee, Mr. Plester, who failed to “lock out” his machinery and then failed to immediately report his conduct. Both actions were in breach of PolyOne’s Cardinal Rules regarding safety. Mr. Plester was terminated for cause. He subsequently brought an action for wrongful dismissal, which proceeded to trial.

Findings re: Summary Dismissal

Justice Wein found that Mr. Plester’s conduct was serious without question, and that as a supervisor, he “needed be seen to be unambiguously supportive of enforcing legislative rules.” She concluded, however, that Mr. Plester’s summary dismissal was not proportionate. This analysis focused particularly on the “Glassford Incident” (though others incidents were also raised) in which an employee breached the same Cardinal Rule as Mr. Plester but was not terminated. The Court of Appeal disagreed with this aspect of Justice Wein’s analysis, holding that the Glassford Incident “[could] not be used as a comparator, and that the trial judge had erred in treating it as such.”

Despite the above, the Court of Appeal was not persuaded that Mr. Plester’s conduct was such a violation of trust that a continuing relationship with PolyOne was impossible. Indeed, Mr. Plester’s mistake did not put anyone else at risk, he was a long-standing, hard-working employee with only minor incidents of past discipline and he had in fact planned to report his conduct. Justice Wein’s award of 14 months’ notice was therefore upheld.

These findings are particularly noteworthy for employers because they underscore the caution and careful consideration that must be taken when seeking to dismiss an employee for cause, in particular where isolated incidents of misconduct have occurred.

Comments re: PolyOne’s Investigation Process

Although the findings in this case were based on the legal test for a cause dismissal, Justice Wein’s decision, “for context”, includes a serious critique of PolyOne’s investigation process vis a vis this incident which is worth highlighting. As she states:

There are a number of procedural improvements to the process that would immediately be apparent to anyone schooled in the basics of due process. All notes should have been retained . . . some summaries were done and original notes shredded. . . . The initial report already includes the term “wilful misconduct”, which is a very high test calling for precise findings. The inclusion of that terminology at this early stage suggests that the writer might have had tunnel vision, or had already concluded what would happen. The initial draft appears to be substantively identical to the final report, suggesting that a decision was reached without full discussion or contemplation. . . . Most significantly, once the possibility of dismissal for cause was seen as a potential outcome, Mr. Plester should have been advised, and given an opportunity to give a more complete statement. The extent of his evidence at trial was not known to management, so the potential for a different outcome existed, had he been re-interviewed after the initial discussion. . . .

Justice Wein’s comments parallel Justice Geopel’s findings in Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133 (CanLII) (see our January 31st 2012 blog entry). Both cases provide useful guidelines for employers/investigators and underscore the importance of conducting fair, thorough and objective investigations.