Employer’s Conduct Constitutes a Repudiation of the Employment Contract thereby Disentitling it from Relying on the Without Cause Termination Provision
In a recent decision of the Ontario Superior Court of Justice (May 2021), Humphrey v. Mene,…
In the 2014 Ontario case of Phanlouvong v. Northfield Metal Products (1994) Ltd., the Court found that punching a co-worker in the face did not constitute just cause and therefore, awarded the Plaintiff damages equivalent to 15 months pay less mitigation earnings.
Mr. Phanlouvong was a 16-year-employee with an unblemished work record. Mr. Phanlouvong testified at trial that one of his co-workers, Mr. Bailey, would often criticize him about how he was doing his job and described an incident in which Mr. Bailey called him a “Chink or Korean” to which Mr. Phanlouvong responded “no I am Laos.” On the day of the incident, the other employee, Mr. Bailey, carrying dirty gloves with elbows extended, bumped into Mr. Phanlouvong. Mr. Bailey proceeded to the area where the used gloves were to be deposited. Mr. Phanlouvong in anger confronted him about why he had struck him with his elbow and asked him what his problem was. Mr. Bailey pushed Mr. Phanlouvong hard enough to keep him at bay and then proceeded to back up. As he was moving backwards, Mr. Phanlouvong punched him in the nose, breaking his safety glasses, sending him backwards onto the floor and causing his nose to bleed.
Of significance here is that the Company had a progressive discipline policy in place to address incidents of workplace violence. In this situation, it did not follow its progressive discipline policy and instead, chose to terminate Mr. Phanlouvong’s employment for just cause.
The Court in rendering its decision took account of the fact that Mr. Phanlouvong was a 16-year-employee with no other incidents of violence or workplace performance issues. His supervisors described him as an excellent employee. The Court agreed that Mr. Phanlouvong’s conduct warranted disciplinary action, however, the Court found that the Company failed to follow its own policy of progressive discipline when it considered no alternatives or measures short of termination in dealing with Mr. Phanlouvong. The Court concluded that the Company had wrongfully dismissed Mr. Phanlouvong and given the circumstances, the Court determined that the reasonable notice period was 15 months.