Background

Mr. Chopra claimed that his former employer wrongfully dismissed him. He also claimed that his dismissal was in essence a reprisal under s. 50 of the Occupational Health and Safety Act for complaints he had made to the Ministry of Labour, and that the employer acted in bad faith, failing to fairly, fully and impartially investigate in order to understand his version of events. He sought over $100,000 in damages, which included aggravated damages for bad faith termination and negligent infliction of mental suffering, as well as punitive and exemplary damages.

The employer submitted that it had just cause to terminate Mr. Chopra's employment and, therefore, he was not entitled to damages. The employer claimed that Mr. Chopra's termination was a result of a number of incidents beginning in 2007, including poor performance, serious misconduct, insubordination, incompetence, breach of company rules and conduct prejudicial to the employer's business. This included allowing an unauthorized person to enter a restricted area and use equipment, allowing employees under his supervision to leave the premises without punching their time cards, approving products with missing labels, falling asleep during a night shift (which resulted in him being moved to the day shift), a mistake on the job resulting in two hours of bottle production having to be destroyed and ignoring instructions to wear protective equipment (resulting in a three-day suspension without pay).

Following these incidents, Mr. Chopra approached a co-worker and asked him to help build a case against management, who he claimed had been harassing him. This co-worker had not witnessed any such behaviour and refused to agree, reporting these comments to the employer's management. Mr. Chopra also told co-workers that the Ministry of Labour representative was a "rat" being paid by the employer to find that there wasn't any wrongdoing with respect to Mr. Chopra's health and safety complaints. Over this period, Mr. Chopra received a total of six written warnings, along with a number of verbal warnings.

Decision

Mr. Chopra's behaviour fell below a reasonable standard of conduct. The Court accepted the employer's submissions that the various incidents of misconduct and poor performance were sufficient to terminate Mr. Chopra's employment for cause. Adopting a contextual and proportional approach, the incidents taken together were not minor or trifling and affected the workplace as a whole. The Court quoted Echlin J. in Daley v. Depco International Inc.,, stating that there were enough "bricks to constitute a just cause wall".

Furthermore, Easy Plastic was justified in their actions following each individual incident of misconduct and had adequately investigated the health and safety concerns that Mr. Chopra raised. The termination was not a reprisal under s. 50 of the OHSA. The Court also rejected Chopra's argument that he had no opportunity to dispute the facts in his warning letters, as he could have written responding letters setting out his version of the facts.

Lessons Learned

An accumulated series of incidents of misconduct may entitle an employer to dismiss for cause. The case law relied upon in this decision stated that the quality of the cumulative misconduct, rather than the similarity, shows an intention to no longer be bound by the employment contract. A proper analysis takes into account the nature and extent of the misconduct, the surrounding circumstances, particular factors of the employee and employer and the seriousness of the misconduct, which may give rise to a breakdown in the employment relationship.

The fact that there were a total of six welldocumented warnings is not insignificant. This Court relied on the ample verbal and written warnings given to Mr. Chopra, which explained his poor performance and the necessity to correct it. He had several opportunities to improve his behaviour and failed to do so. He also did not respond to the warnings to set out his own account of the events in writing. This case shows that an employer may be able to meet the threshold to establish a termination for cause when an employee has engaged in cumulative acts of misconduct, poor performance and failure to improve.

Note: This a reprint of an article by Adam Guy and Noemi Chanda of Borden Ladner Gervais LLP.