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"Bricks in the just cause wall": employee dismissed for "cumulative just cause"

An Ontario court has recently upheld the dismissal of an employee with 13 years of service on the basis of "cumulative just cause". This refers to the doctrine under which an employer can rely on the past misconduct of an employee when determining whether current misconduct amounts to cause for dismissal.

In Daley v. Depco International Inc. (June 18, 2004), it was alleged that the employee had been involved in nine incidents over a period of nearly two and a half years. In determining whether the employer had just cause for dismissal, the Court relied on only the last five incidents. These included occasions on which the employee had challenged another employee to a fight, been intoxicated at work, committed an error that shut down the production line for two hours, and abandoned his work station temporarily, which caused a machine to jam and lubricant to spill, resulting in a safety hazard.

The employer had imposed a series of progressive discipline measures on the employee under the terms of an Employment Handbook it had distributed to its employees. The Handbook contemplated a series of graduated disciplinary responses to successive incidents of misconduct. The employer had documented all of its responses to the incidents, including the prior warnings it had given to the employee and warnings of the steps it would take if there were more incidents of misconduct. Specifically, it had warned the employee several months before his dismissal that he risked being terminated if any other work rules were violated.

Having found each of the five allegations against the employee as fact, the Court held that, viewed contextually and cumulatively, just cause had been made out:

"While each of these five incidents might not be sufficient to amount to just cause by themselves, when viewed collectively, the conclusion that must be drawn in this instance is that the series of acts cumulatively do amount to enough "bricks to constitute a just cause wall". … These allegations are not a series of minor or trifling transgressions. Nor are they mere insubstantial allegations. Each one is documented. … When not viewed in isolation they clearly fell below any reasonable standard of conduct that this employer was entitled to expect."

Accordingly, the employee's action was dismissed.

In Our View

One interesting aspect of this case was the Court's decision to consider only the last five of the nine allegations against the employee. This was because the Employment Handbook stated that "any disciplinary action will be removed from the employee's record after one year". Although the Court indicated that it was not bound to consider only the incidents that remained on the record, it would appear that it felt that the Employment Handbook, for which the employer had obtained employee sign-offs acknowledging receipt, was part of the employment contract and that the employer was constrained by its terms.

The Court also commented favourably on the employer's detailed progressive discipline regime and encouraged other employers to adopt this approach, which it stated would lead to greater fairness and transparency in the implementation of workplace discipline in a non-unionized workplace.

For further information, please contact Steven Williams at (613) 940-2737.