COURT OF APPEAL FOR ONTARIO

CITATION: Plester v. PolyOne Canada Inc., 2013 ONCA 47

DATE: 20130128

DOCKET: C54909

Laskin, LaForme and Hoy JJ.A.

BETWEEN

John Edward Plester

Plaintiff (Respondent)

and

PolyOne Canada Inc.

Defendant (Appellant)

Greg McGinnis and Brendan Clancy, for the appellant

Cherolyn R. Knapp and Heather J. Wood, for the respondent

Heard: January 11, 2013

On appeal from the order of Justice Bonnie J. Wein of the Superior Court of Justice, dated December 23, 2011, with reasons reported at 2011 ONSC 6068.

ENDORSEMENT

[1] The trial judge held that PolyOne Canada Inc. dismissed the respondent, John Plester without cause, and that he is therefore entitled to damages. PolyOne appeals this decision.

[2] PolyOne argues that the trial judge erred in grounding her conclusion that dismissal was a disproportionate response to the respondent’s conduct on a particular incident of another employee’s conduct – the “Glassford incident.”

[3] While we agree that the trial judge erred in focussing on the Glassford incident, we nonetheless agree with the trial judge that dismissal without notice or pay in lieu of notice was not warranted in the case of this 17-year employee with an almost unblemished record. In the result we dismiss this appeal.

[4] The background, briefly, is as follows.

[5] PolyOne is a manufacturing company. Its processes are complex and potentially dangerous. PolyOne has succeeded in ingraining a strong culture of workplace safety. Its “Cardinal Rules” of safety include the requirement that any machinery being worked on be “locked out,” and that employees immediately report any violations of safety policy.

[6] The respondent, a line-supervisor, failed to lock-out a machine before attempting to fix it. It was the culmination of a frustrating day. He was distressed by his lapse and was trying to “get his head around” what he had done; he did not immediately report his violation. The next morning, he attempted to dissuade subordinates from reporting his mistake. A head-office executive was visiting. The respondent wanted to report himself at an opportune time.

[7] By the time the respondent spoke to his subordinates, they had already reported his violation. PolyOne promptly dismissed the respondent, without notice or pay in lieu of notice.

[8] Considering the importance of workplace safety, the trial judge characterized the respondent’s conduct as a serious mistake, compounded by his delay in reporting. She then considered how such breaches were viewed by PolyOne. She concluded that an incident involving another employee, Mr. Glassford, provided a good comparison. Mr. Glassford was an Operations Manager, and breached the same Cardinal Rule as the respondent. As Mr. Glassford was not terminated as a consequence of his breach of the Cardinal Rule, PolyOne’s dismissal of the respondent was not a proportionate response.

[9] PolyOne points out that Mr. Glassford’s violation was not reported at the time, and only surfaced in the course of this action. We note that this point does not appear to have been specifically argued before the trial judge. Nevertheless, we agree that management’s failure to terminate Mr. Glassford at that time cannot be used as a comparator, and the trial judge erred in treating it as such.

[10] We appreciate that an employer’s ability to respond strongly and swiftly to violations of rules designed to ensure workplace safety reinforces the importance of such rules, and promotes a culture of workplace safety. We also appreciate that a line-supervisor, such as the respondent, is generally subject to a higher standard than a line worker. And, given PolyOne’s fully warranted concerns about workplace safety, we agree with the trial judge that the respondent made a serious mistake. However, the respondent’s mistake did not appear to have put any other persons at risk, and he was a long-standing, good, hard-working employee with only minor incidents of past discipline as a line-worker, pre-dating his promotion to line-supervisor some six years before.

[11] Moreover, the trial judge accepted that the respondent planned to report his violation; what occurred was an intended short delay in reporting, as opposed to a suppression of a violation. We are not persuaded by PolyOne’s argument that that the respondent’s conduct was such a violation of trust that a continuing relationship was impossible.

[12] In the result, we agree with the trial judge that, in these circumstances, dismissal without notice or pay in lieu of notice was not warranted.

[13] In the event it succeeded on its argument that it had just cause for dismissal, PolyOne also argued that the trial judge erred in concluding that the respondent’s actions had not disentitled him to payments under the Employment Standards Act, 2000, S.O. 2000 c. 41. Having regard to our conclusion on the just cause issue, it is unnecessary for us to address this argument.

[14] For the reasons above, the appeal is accordingly dismissed. If the parties are unable to agree on costs, they may provide brief written submissions within thirty days.

“John Laskin J.A.”

“H.S. LaForme J.A.”

“Alexandra Hoy J.A.”