One would think it self-evident that employees who punch a customer's employee in the face may be dismissed for just cause. But it took an appeal for an employer to win on that issue.
The employee was a truck driver with a small, privately-owned trucking company. While at a customer's premises, he got agitated at one of the customer's employees and punched him in the mouth, knocking out one of his teeth. The employer dismissed the truck driver and refused to pay his Canada Labour Code termination and severance pay. The employee then filed a claim for those amounts.
Surprisingly, an Inspector under the Canada Labour Code, who was the first-level adjudicator, decided that the employer did not have just cause for dismissal because the company's "expectations" had not been clear, there had been insufficient supervision to ensure compliance, and there had been no "clear warnings" as to what would happen if the employee engaged in unacceptable conduct.
The employer appealed to a referee, who disagreed with the Inspector. The one incident, taken on its own, was just cause for dismissal. The truck driver showed no remorse for his actions, even at the hearing where he said that the customer's employee deserved what he got. The appeal referee found that the truck driver had been evasive and dishonest at the appeal hearing. The referee held that the punch was unprovoked and constituted just cause for dismissal; this meant that the employee was not entitled to termination pay and severance pay under the Canada Labour Code.
Although the employee had a spotty performance record, including a warning for a previous violent incident at a customer's premises in which he was alleged to have threatened one of his co-workers with a hunting knife, the appeal referee decided that he did not need to rely on the past incidents, given the gravity of the later assault on the customer.
Our posts on other dismissal-for-violence cases can be viewed by clicking on the " Violence and Harassment" category on our occupationalhealthandsafetylaw.com blog.
Warner v Moore Brothers Transport Ltd., 2014 CanLII 54390 (ON LA)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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