While violence at work is a serious matter, that does not mean that it always justifies an employee's immediate dismissal for cause. Although a serious incident of physical aggression can sometimes be cause to dismiss an employee without notice, it is important to consider all of the surrounding factors first.
In this article, we take a look at three Canadian wrongful dismissal cases that have examined which factors may be considered and when an act of violence will justify an employee's dismissal for cause. As these cases show, not every incident of violence will provide an employer with just cause to dismiss an employee. Rather, the severity of the offence and all of the surrounding circumstances ought to be taken into consideration to determine whether dismissal without notice is appropriate.
The severity of the offence
Although workplace violence is a serious matter that ordinarily justifies discipline, not all incidents of workplace violence should be treated equally. In considering the appropriate discipline, a useful starting point is to consider the seriousness of the incident. In Gjema v. Mercury Specialty Products Inc., 2012 MBQB 83, the court commented on the importance of assessing the severity of the violent offence:
It is also clear that generally any trespass to the person or assault of another employee in the workplace is unacceptable and can justify discipline. Having said that, one must recognize there can be a wide range of kinds of assaults in the workplace, extending from an accidental bump at the low end to a kick in the head with steel-toed boots at the upper end.
Unsurprisingly, the more serious the offence, the more likely it is that termination for cause will be appropriate.
The surrounding circumstances
After assessing the severity of the offence, an employer should consider any relevant surrounding circumstances. For example, the following factors have been taken into consideration when considering if an act of violence justifies an employee's dismissal:
A positive service record: It can be more challenging to justify the immediate termination of an employee with a long, positive service record. On the other hand, it is more likely that an employer will have just cause to immediately dismiss an employee who has a history of infractions:
- In Shakur v. Mitchell Plastics, 2012 ONSC 1008, the dismissed plaintiff, who had struck another employee on the face, benefited from the fact that he had a positive employment record as a conscientious worker. The court took his past service into consideration in determining that there was not cause for his immediate dismissal.
- In Belyea v Syncrude, 2018 ABQB 132, the employer's argument of just cause was strengthened because the plaintiff had a history of discipline for inappropriate interactions with co-workers.
Provocation: Whether the violence was provoked or unprovoked may be relevant in considering whether termination for just cause is appropriate. Provocation will not ordinarily excuse an act of violence altogether, but it can be a relevant consideration in determining what the appropriate discipline may be:
- In Gjema, the Court determined that another employee had angrily approached the plaintiff, swore at him, and poked a finger in his chest. In response, the plaintiff shoved the other employee backwards, causing a minor injury. The fact that the plaintiff was not the instigator was one factor that weighed against finding that there was just cause for the plaintiff's dismissal.
- A similar conclusion was reached in Shakur, where the plaintiff struck another employee on the face after receiving challenging or threatening remarks from that employee.
Apology/accepting responsibility: Depending on the circumstances, a failure to apologize or accept responsibility may reflect poorly on the plaintiff. It may be that this is interpreted as a sign that the plaintiff has failed to recognize the seriousness of the offence. Similarly, this could be considered an indication that the plaintiff is more likely to commit similar offences in the future:
- In Belyea, the plaintiff did not accept responsibility for the incident or express any remorse. The Court treated this as a factor weighing in favour of justifying the employee's dismissal for cause.
Anti-violence policies: Clearly defined safe workplace policies are another relevant factor, especially if the employee is aware of those policies but breaches them nonetheless:
- In Gjema, the court commented that the employer's safe workplace policies are a relevant consideration, and may help to justify an employee's termination when those policies are breached.
- In Belyea, the court noted that anti-violence policies are particularly relevant if they have been clearly communicated to the employees. Because the plaintiff had been properly trained in the anti-violence policies, this factor supported more serious punishment.
- In Shakur, on the other hand, the employer's employee handbook included an anti-violence policy, but the employer failed to clearly communicate this policy to its employees. As a result, the anti-violence policies in the employee handbook were of little assistance to the employer.
This is just an example of relevant factors that can be taken into consideration in appropriate cases, although each case is unique and may have different factors that need to be considered.
Determining the appropriate discipline
Taking into consideration the severity of the incident, and any relevant surrounding circumstances, an employer must then consider whether termination is appropriate. Every employer has a duty to take violence seriously, but this does not mean that termination for cause is always justified.
Of the three cases discussed here, the plaintiffs' termination was only justified in one case. In Gjema, the Manitoba Court of Queen's Bench held that the employee's dismissal was not justified. Relevant factors included:
- The plaintiff pushed a subordinate employee, causing a minor injury and breaking the employee's glasses;
- The employer's policy manual included safe workplace guidelines;
- The plaintiff was not the instigator of the incident, but was responding to aggressive actions from the other employee; and
- The employer seemingly was already seeking a way to dismiss the plaintiff, and used the violence as a pretense to dismiss him without compensation.
In Shakur, the Ontario Superior Court of Justice similarly held that the employee's dismissal was not justified, taking into consideration factors including:
- The plaintiff struck another employee across the face, briefly resulting in a red mark on the other employee's face;
- The other employee instigated the incident by making challenging or threatening remarks to the plaintiff;
- The plaintiff did not express remorse or offer to apologize;
- The plaintiff had a positive employment record as a conscientious worker; and
- The employer had anti-violence policies in place, but it failed to train its staff on those policies.
In Belyea, the Alberta Court of Queen's Bench determined that the employee's dismissal was justified. The Court considered several factors, including:
- The plaintiff dropped or threw a chain on a junior employee's hand, breaking the food container, causing him to spill his food, and resulting in a sprain or strain;
- The plaintiff denied the incident occurred as described, and expressed no remorse;
- Any acts of violence were clearly forbidden under the employer's policy manual, including attempted violence and other actions likely to cause physical injury, and these policies were clearly communicated to employees; and
- The plaintiff had received several prior warnings during his employment related to workplace confrontations, including a warning that further incidents could lead to dismissal.
These cases demonstrate that even an act of violence - which may generally be considered a serious form of misconduct - does not necessarily justify an employee's dismissal for cause. Although a sufficiently serious act of violence may justify dismissal regardless of the surrounding circumstances, employers should nonetheless consider the severity of each offence in light of all of the surrounding circumstances before deciding on the appropriate discipline.
About the Author
Brendan Harvey advises and represents employees and small businesses at all stages before, during, and after the employment relationship. His primary areas of practice include wrongful dismissal, employment standards, and human rights litigation. If you would like to schedule a meeting with Brendan Harvey or any other of our lawyers, give us a call at 604-988-1000.
