I have spent far too much of my career analyzing the law regarding summary dismissal in Canada, and I am confident in saying that the one absolute rule is that there are no absolute rules regarding what will constitute just cause for dismissal. That is because every situation must be assessed based upon its own particular circumstances and with regard to all relevant factors.

As I have often said, two employees could engage in the exact same misconduct, but a court could find that there was just cause to dismiss one but not the other. That is because other factors may tip the scales; those factors could include their respective employment and disciplinary record, their response when confronted, and mitigating circumstances like addiction.

That is one reason why zero tolerance policies are risky. I understand the idea that companies want to express their absolute rejection of certain types of conduct, such as sexual harassment. However, there will always be exceptions to every rule, and just because a company says that they have a zero tolerance policy for certain behaviour does not mean that a court will agree it constitutes just cause for dismissal.

Racist Comments? Ontario Power Generation v Power Workers’ Union

A recent case in which a worker made several inappropriate comments, such as telling a First Nations colleague to “play the Indian card” and questioning why we don’t have a white history month, serves as a good example.

In Ontario Power Generation v Power Workers’ Union, the employee was a procedure writer that had been with the company for 18 years. When speaking with a temporary employee who was a citizen of the Métis Nation of Ontario, she suggested that this individual “play the Indian card” to get herself a permanent position.

During the same conversation, the employee made some comments suggesting that OPG had spent a lot of money courting the Métis Nation for a project and mistakenly blaming the Métis community for voting down the project, which put the Métis employee in an awkward position as she reported to the employee making those comments.

To compound matters, the employee subsequently said “[w]hy don’t we get a white history month?” in response to a black history month show on television. The employee doubled down by repeating that question a few days later and then, perhaps realizing what she had done, commented that “I’m not prejudiced.”

After the Métis employee raised her concerns to a member of management, she was advised to file an internal human rights complaint, which resulted in a disciplinary hearing. After the hearing, the employee wrote an apology to the complainant which read as follows:

I would like to apologize for offending you and making you feel uncomfortable in some conversations we have had in the past – that was never my intention, and I am deeply sorry that you felt the way you did following them. I should have been more sensitive and used different words when discussing certain topics. I should have never said what I did. I have had some time to reflect and realize the errors on my end and I am working to correct them for future situations. I hope you can someday forgive me.

No just cause

The arbitrator took note of many mitigating factors, including the employee’s lengthy service, her clean disciplinary record, her honesty in acknowledging the comments she made, the remorse she expressed and the apology she wrote.

The arbitrator also assessed the egregiousness of the conduct in question. Without excusing what this employee had said, the arbitrator distinguished between this type of comment and discriminatory conduct in which people are treated differently on the basis of race. The arbitrator found that the question about white history month was “provocative and careless” but that a non-disciplinary letter “explaining that her comment had been upsetting to a co-worker and counselling her on the importance of being sensitive so that everyone feels welcome at the workplace” would have been appropriate.

The arbitrator did take note of the employee’s supervisory position and the need for some form of discipline, holding that a suspension would be “appropriate to reinforce the fact that discriminatory comments of any kind cannot be tolerated in the workplace.” In the end, a one day unpaid suspension was imposed, along with a requirement that she undergo Indigenous-focused sensitivity training.

Pith and substance

Dismissal with cause should always be approached with caution, as getting it wrong can be quite costly for employers. I reject the notion that “you can never fire someone for cause in Canada”, but I encourage readers to remember that the threshold for finding just cause is high and that the decision must take into account more than the misconduct in question. A contextual approach, which considers all relevant factors, must be used even in the case of conduct for which there is a “zero tolerance policy”.

In the OPG case, the result may well have been different if the employee did not have a long and discipline-free service history, or if she was dishonest in the investigation and/or refused to take responsibility for her actions. That is why employers must conduct a proper investigation, which includes providing the accused with a chance to respond to the allegations, and assess all factors before determining the type of discipline to impose. Similarly, employees who have engaged in misconduct should not assume that they have no rights if they are summarily dismissed.