The Ontario Superior Court of Justice considered whether the employer had just cause for terminating senior service technician with 25 years service for making a sexually explicit gesture behind a female customer’s back. The case is Cuconato v. Parker Auto Care Ltd., 2018 ONSC 2803 (CanLII) decided on May 3, 2018.
The plaintiff was called into his managers office and advised that he’d been seen making a gesture of a sexual nature behind the back of a female customer. He was told that if he refused to admit making the gesture, he would have to resign or be fired. The plaintiff refused to resign and his employment was terminated for just cause and he was provided with 5 .5 weeks pay (presumably on a gratuitous basis). For purposes of the motion, the plaintiff conceded that the gesture was sexual in nature.
The Court, on a motion for summary judgment, considered the Supreme Court of Canada case of McKinley v. BC Tel, 2001 SCC 38(CanLII) and conducted a contextual analysis (as required).
The judge held that he had to consider three (3) things:
- determine the nature and extent of the misconduct;
- consider the surrounding circumstances; and
- decide whether dismissal was warranted (Fernandes v. Peel Educational & Tutorial Services Ltd., 2016 ONCA 468 (CanLII) at para. 105).
The misconduct consisted of the gesture and the denial. For purposes of the motion, he admitted the motion and the judge found that his denial, in those circumstances, could be viewed as dishonesty. As such, the court had to assess the extent and seriousness of the denial?
The motion’s judge concluded that:
[The plaintiff’s] denial cannot be characterized as “persistent” for the following reasons. First, [the plaintiff’s] evidence is that he initially denied making the gesture because he did not know of what he was being accused. There is no evidence that before he was shown the video on the phone, [the plaintiff] was aware of the nature of the complaint. Second, Mr. Parker admits that the recording on his phone was so poor that it was “not clear enough…to see anything.” At that point, [the plaintiff] said the gesture was something other than a sexually explicit gesture. Third, Mr. Parker admits that when the two of them went to the mezzanine level to view the security footage, he was unable to find the incident on the video footage. Fourth, the following day, there was no denial or even discussion about the video: [the plaintiff] advised Mr. Parker that he was not going to resign and Mr. Parker responded that he was going to have to terminate [the plaintiff’s] employment.
The court then considered surrounding circumstances. The court considered the plaintiff’s circumstances and the unblemished record of the plaintiff over 25 years of employment.
In addition, it considered the employer’s circumstances including “the type of business or activity in which the employer is engaged, any relevant employer policies or practices, the employee’s position within the organization, and the degree of trust reposed in the employee”.
The employer had no written disciplinary policies. It had a violence policy but “did not take any specific steps to ensure that [the plaintiff] was aware of it.” Further, the employer “provided no training to its employees in relation to workplace violence or harassment.” In addition, there was no harm to the employer’s reputation with customers or other employees.
In the circumstances, the court concluded that termination was not warranted. In considered that this was an isolated incident in an otherwise clear disciplinary history over a quarter century. The court stated:
An employee’s isolated act of misconduct, including dishonesty, does not justify dismissal without notice unless the misconduct can be said to be “so grievous” that it gives rise to the inference that the employee intends no longer to be bound by the employment contract (McKinley, at para. 33, citing Blackburn v. Victory Credit Union Ltd. (1998), 36 C.C.E.L. (2d) 94 at 110, 165 N.S.R. (2d) 1 (N.S.C.A.)).
The court concluded that the termination was not the appropriate discipline and, in so doing, held that:
Considered in context, [the plaintiff’s] misconduct did not strike at the very heart of the employment relationship. It did not put into jeopardy the company’s continued operation. And, it did not destroy the trust that Parker Auto had placed in [the plaintiff] for many years. It cannot be said that [the plaintiff’s] misconduct was “so grievous” that I should infer that he no longer intended to be bound by his contract of employment with Parker Auto. Consequently, there was no just cause for [the plaintiff’s] dismissal on August 24, 2016.
In all of the circumstances, having regard to the factors in Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC), and, among other things, the fact that the plaintiff had worked for the company for his entire working career, the court determined that the range of common law reasonable notice was between 16 and 22 months. It awarded 20 months’ notice less mitigation income.
The case is a stark reminder of the difficulties that an employer will face when terminating a long-service employee for just cause based on a single and isolated act of dishonesty (or misconduct). The contextual analysis in McKinley requires that, where just cause is proven, the punishment/discipline be proportionate to the misconduct, and this requires a review of the surrounding circumstances (i.e. the context).
Although a single act of misconduct can support a termination, in order to do so, the employer will have to demonstrate that “the impugned behaviour was sufficiently egregious to violate or undermine the obligations and faith inherent to the employment relationship” and that “given the nature and seriousness of the dishonesty” it is irreconcilable with “sustaining the employment relationship”. (see McKinley). It is important not to jump to termination for just cause, no matter how serious the misconduct, before first running the case through the contextual analytical framework.