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By Paul Russell, LegalMatters Staff • A B.C. winery was justified in firing with cause an employee whose carelessness led to almost 6,000 litres of wine being dumped down the drain, though the results may have been different if the same thing happened in Ontario, says Toronto employment lawyer Ellen Low.
“If someone is fired with cause, they get nothing, they are denied any severance or notice period payments, plus they will not be eligible for Employment Insurance, so it is a big deal to be let go that way,” says Low, principal of Ellen Low Employment Law.
According to a CTV News story, the man worked at an Okanagan Valley winery as a cellarman for more than a decade, responsible for blending wines and transferring them between tanks, as well as checking the lines every 15 minutes to ensure there were no problems.
On Nov. 19, 2018, he accidentally left a valve open for 20 minutes during a transfer, the story states, with 5,680 litres of sauvignon blanc valued at nearly $162,500 spilling onto the floor and down a drain.
“According to the arbitrator’s report that upheld his for-cause firing, the man felt ‘very, very sorry’ about this mistake,” Low tells LegalMattersCanada.ca. “He felt ‘really, really bad’ about what had happened while promising to be ‘more attentive and more careful in the future.’”
Saying sorry is not enough
Expressing contrition is important, she says, explaining an acknowledgment of responsibility is one of the things an arbitrator looks at when determining if an employer was justified in firing someone with cause.
“If this were the man’s first careless incident, the arbitrator’s decision may have been different,” Low says. “But as the report shows, the same thing happened 18 months earlier, with 11,000 litres of wine going down the drain that time.”
Referencing that earlier incident, the arbitrator writes, “It is apparent … that earlier efforts by the employer to impress upon the grievor the seriousness of an error of this magnitude” failed to improve his work habits.
“The man did not seem to grasp the seriousness and magnitude of his error, which is why termination for cause, and without notice, was ruled not to be an excessive disciplinary response,” says Low.
Misconduct does not inherently justify dismissal
She says the conditions that must be met to justify firing someone with cause come from a 2001 Supreme Court of Canada decision, which states, “an employee’s misconduct does not inherently justify dismissal without notice unless it is ‘so grievous’ that it intimates the employee’s abandonment of the intention to remain part of the employment relationship.”
Low says the threshold is intentionally high, with the onus on the employer to prove the employee’s conduct is egregious.
To help arbitrators determine if that threshold has been met, she says the judgment outlines a three-part test, asking courts and arbitrators to:
- determine the nature and the extent of the misconduct;
- consider the surrounding circumstances; and,
- decide whether dismissal is a proportional response.
“In this case, since this was the second time in 18 months that the employee’s misconduct cost the company a great deal of money, the threshold was met,” Low says.
Ontario employment standards are different
While the common-law test for firing with cause is the same across Canada, she says Ontario has a different threshold than B.C. in determining if an employee is eligible for minimum termination pay and severance under the Employment Standards Act (ESA).
“In Ontario, a person is entitled to ESA notice and severance, unless the employee is guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer,” says Low, quoting from the act.
“That is a different threshold than under common law, so if this case happened in Ontario, there may have been different results,” she says.
When working with Ontario employers who are considering firing someone for cause, Low advises them to do a detailed analysis in advance, to see if they can defend that decision if challenged.
“Putting forward cause where it doesn’t really exist opens the company to liability for punitive damages,” she says.
Professional advice pays off
Low says employers have to do a careful evaluation and work with an employment lawyer to determine if the conduct in question meets the threshold to show cause dismissal is the proportional response.
She also offers advice to employees caught up in this situation.
“Anytime someone is released for cause, they really have to sit down with an employment lawyer to figure out if their conduct, in the context of both the common law and the ESA, is so egregious that it deprives them of any notice and severance whatsoever,” Low says.
“When you are dealing with a fired for cause situation, it is never straightforward, as there are many considerations that have to be taken into account,” she says.
