COURT FILE NO.: 09-4609-SR
DATE: 2012-02-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wazir Shakur
Plaintiff
– and –
Mitchell Plastics (a division of ULTRA MANUFACTURING LIMITED)
Defendant
Bernard T. Verbanac, for the Plaintiff
Landon P. Young, for the Defendant
HEARD: February 6, 7 & 8, 2012
The Honourable Mr. Justice D. A. Broad
Introduction
[1] This is an action for wrongful dismissal. The Plaintiff (“Mr. Shakur”) was employed by the Defendant (“Mitchell Plastics”) as a machine operator from September 24, 2001 to August 27, 2007 when he was dismissed by the defendant. Mr. Shakur was 35 years of age on the date of his dismissal and earned $15.00 per hour plus benefits. The value of Mr. Shakur’s base compensation was $33,436.20 per year, and in addition, he was eligible to participate in annual profit sharing, which was payable each April for the previous year.
[2] Mr. Shakur seeks damages in the sum of $25,000.00, damages for mental distress in the amount of $10,000.00 and punitive, aggravated and/or exemplary damages in the amount of $10,000.00.
[3] Mitchell Plastics has defended on the basis that there was just cause for termination of Mr. Shakur’s employment. In the alternative it asserts that if there was no just cause for dismissal Mr. Shakur’s entitlement to notice of termination was limited to the minimum provided by the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) pursuant to a written employment contract.
[4] The action was commenced prior to the increase in the monetary jurisdiction of the Small Claims Court from $10,000.00 to $25,000.00 on January 1, 2010.
Issues
[5] The issues for determination are as follows:
i. Was there just cause for the termination of the Plaintiff’s employment?
ii. If there was no just cause for the termination, is the provision in the employment contract dated September 25, 2001 (the “Agreement”) providing for termination without cause on the basis of the notice periods set forth in the ESA enforceable and binding on Mr. Shakur?
iii. If there was no just cause and the Agreement is not binding, what is the applicable period of reasonable notice of termination?
iv. Did Mr. Shakur fail to take reasonable steps to mitigate his damages? and
v. Should enhanced damages be awarded against Mitchell Plastics?
Facts
(a) The Incident
[6] On August 17, 2007 an altercation occurred between Mr. Shakur and another worker at the Mitchell Plastics plant Gary Kelley (“Mr. Kelley”). The two of them were engaging in some verbal jousting in the vicinity of the machine at which Mr. Shakur was working, described by witnesses variously as “trash talk”, “off-colour language,” “salty language” or acting like “two kids in a courtyard”. There was conflicting evidence as to the degree to which this type of behaviour on the job was routine between Messrs. Shakur and Kelley, who was the usual instigator of it, and whether it was usually good-natured. Another employee, Cecil Fletcher also participated, from time to time, in the behaviour.
[7] Although there was no evidence that the banter engaged in by Messrs. Shakur and Kelley had previously escalated into physical contact, on the occasion of August 17, 2007, it did lead to Mr. Shakur striking Mr. Kelley on the face with an open hand. Although the evidence is conflicting as to what exactly precipitated the strike by Mr. Shakur, I find that there was something said by Mr. Kelley which provoked Mr. Shakur to strike him. There was no evidence that Mr. Shakur had any history of violence or problems with anger management during his tenure at Mitchell Plastics. It was acknowledged by Michele Dykeman, the Director of Human Resources for Mitchell Plastics, that Mr. Shakur enjoyed a clean discipline record. The fact that there was provocation did not justify Mr. Shakur’s action, but it helps to explain it.
[8] There was also conflicting evidence concerning the nature of the strike. Mr. Shakur characterized it as a “tap” on the face in order to try to induce Mr. Kelley to cease his “trash talk” and to back off from being “in his face.’ Mr. Kelley characterized it as a “slap,” strong enough to cause his head to move and to cause redness on his face. The only independent witness to the incident, Rosy Aggarwal (“Ms. Aggarwal”), the cell leader to whom Mr. Shakur reported, testified that she did observe redness on Mr. Kelley’s face following the “slap.” Although for the reasons set forth below, it is not necessary to make a finding as to the severity of the contact, I do find that it did amount to more than a “tap”, but rather was an open-handed strike across the face which resulted in facial redness, however brief.
(b) The Investigation
[9] The incident was reported to the Human Resources department. Connie Bingeman, the HR assistant, interviewed both Mr. Shakur and Mr. Kelley on August 17 and sent brief e-mail reports of those interviews to Ms. Dykeman. There was an indication that Ms. Bingeman may have also spoken by telephone with Ms. Dykeman regarding the incident. In any event, Ms. Dykeman spoke to the President of the company Joe D’Angelo late in the day on August 17, and reported the incident to him, based on the brief reports received from Ms. Bingeman. Ms. Dykeman was instructed by Mr. D’Angelo to terminate Mr. Shakur’s employment and, on Ms. Dykeman’s recommendation, to impose five-day and three-day suspensions on Messrs. Kelley and Fletcher respectively for their involvement in the events leading to the incident. Mr. D’Angelo directed that nothing be paid to Mr. Shakur. He further directed that if the circumstances were different than what had been reported following Ms. Dykeman’s investigation on the following Monday, the decisions could possibly be reconsidered. Mr. D’Angelo was adamant that the type of behaviour reported to have been exhibited by Mr. Shakur would not be tolerated in the plant. There was no evidence that Mr. D’Angelo and Ms. Dykeman discussed the possibility of any disciplinary measures for Mr. Shakur short of termination.
[10] There was conflicting evidence as to whether Ms. Dykeman interviewed Mr. Shakur and Mr. Kelley on the following Monday August 20. On the evidence, I find that she did carry out brief interviews. The notes which she made of the interviews were quite brief and although Ms. Dykeman testified that she spoke to Ms. Aggarwal, she did not document that conversation. Ms. Aggarwal was not asked by Ms. Dykeman to provide a written statement on the incident until August 30, 2007, after Mr. Shakur was dismissed. In any event, Ms. Dykeman did not report further to Mr. D’Angelo, as she concluded that the facts reported to her did not warrant a reconsideration of Mr. D’Angelo’s decision, and she therefore proceeded to prepare a termination letter for Mr. Shakur.
(c) The Termination
[11] As Mr. Shakur was off sick for the balance of the week, Ms. Dykeman met with him upon his return on August 27, 2007 and handed him a letter terminating his employment for cause, citing the “General Plant Rules” contained in the Employee Handbook. The letter stated that “it is the position of the Company that you were engaged in harassment contrary to both Company Policy and the Human Rights Code of Ontario.” Mr. Shakur requested an opportunity to speak to Mr. D’Angelo, but this was denied by Ms. Dykeman on the basis that the decision had been made and was not subject to reconsideration.
(d) The Contract
[12] Mitchell Plastics relies upon a written Employment Agreement dated September 25, 2001, executed by Mr. Shakur, which provided that he could be terminated for any reason, other than just cause, provided Mitchell Plastics “gives the Employee such notice and/or pay as may be required pursuant to the Employment Standards Act of Ontario.”
[13] The evidence indicated that Mr. Shakur was initially hired by telephone on or about September 15, 2001, at which time he was requested to report for work on September 24. The evidence was unclear as to whether he was told at that time that he would be required to sign any documents, however, there is no evidence that he was informed that he would be required, as a condition of his hiring, to execute a written employment agreement, or what its terms would be respecting notice of termination. Moreover, the Agreement was not shown to Mr. Shakur, nor was it executed by him, prior to his starting work, but rather was executed on the next day, September 25, 2001. Mr. Shakur testified that his cell leader brought certain documents to him at his work station, which he signed. There is no evidence that the Mr. Shakur was afforded an opportunity to read the Agreement, or that it was explained to him that it was required as a condition of his continued employment. Ms. Dykeman testified that if he did not sign the Agreement the hiring process would have been stopped, however, there was no evidence that this was communicated to Mr. Shakur.
Discussion
(a) Just Cause
[14] The Supreme Court of Canada in the case of McKinley v BC Tel 2001 SCC 38 has directed that a contextual approach is to be utilized in determining whether an employee’s misconduct justifies dismissal without notice. At para. 33 the Court stated “an employee’s misconduct does not inherently justify dismissal without notice unless it is ‘so grievous’ that it intimates the employee’s abandonment of the intention to remain part of the employment relationship.”
[15] Measured by this standard, it is difficult to see how Mr. Shakur’s action, however improper, justified an outright dismissal. There was no evidence that Mr. Shakur had caused any previous disruption or trouble in the workplace, or was anything other than a conscientious worker. Although there was evidence that there was talk between Messrs. Shakur and Kelley following the event which indicated a risk of escalation, I find that it emanated mainly from Mr. Kelley who was heard by Mr. Fletcher making challenging or threatening remarks directed to Mr. Shakur. There was no evidence that Mr. Shakur responded in kind.
[16] Mr. Young, in argument, emphasized two factors as bringing the incident into the category of cases justifying immediate dismissal. Firstly, he argued that there is serious societal concern with respect to the issue of workplace violence, as evidenced by recent amendments to the Occupational Health and Safety Act (ONSA) by Bill 168 in June 2010. Secondly, he points to the lack of remorse on the part of Mr. Shakur and his failure to offer an apology.
[17] Despite Mr. Young’s capable argument, I find that neither of these factors are sufficient to discharge the onus on Mitchell Plastics to establish that there was just cause for the termination, within the contextual approach mandated by McKinley.
[18] There is no question that workplace violence is a serious issue and that the recent amendments to the OHSA reinforce that. Even if the concepts brought about by these amendments in 2010 should be applied to the circumstances of this case, which predate them, there is no question that the prevention of workplace violence is a shared responsibility placed on employers and employees. Although the Employee Handbook contained rules prohibiting “threatening, intimidating, or coercing fellow employees” and “fighting or attempting to injure another employee”, the evidence is that Mitchell Plastics did nothing to train its employees with respect to the intent and purpose of the rules and the consequences of breaking them, beyond distributing the Handbook, and revisions to it, to its employees and leaving them to read it and interpret it for themselves. Mr. Shakur testified that he did not attend any training sessions respecting the Employee Handbook. Within a contextual approach, it is difficult to see how Mr. Shakur’s actions on August 17, 2007 could be viewed as evidencing an intention on his part to abandon or repudiate the employment relationship. Moreover, Mitchell Plastics could well have achieved its legitimate interest in sending the message to Mr. Shakur, and to the rest of the employees in the plant, that workplace violence would not be condoned, by the imposition of the type of progressive discipline measures specifically referred to in the Employee Handbook.
[19] Mr. Young cites the case of Smith v. Finning Tractor & Equipment Co. [1987] B.C.J. 183 (B.C.S.C.) for the proposition that the lack of remorse or a failure to apologize for misconduct, like an assault, may be taken into account by the Court in assessing whether there was just cause for dismissal. I agree that lack of remorse may be taken into account in appropriate circumstances, but it must be considered within a full contextual consideration. The Smith case involved a much more serious incident, involving the plaintiff, in a managerial role, assaulting a customer of the employer, as well as a fellow employee, in the customer’s home, over a half hour period. Surely this was a situation that cried out for an apology, and its absence may have been considered evidence of an intention on the part of the employee to repudiate the employment relationship. I do not agree that a failure to apologize will, in all cases, or by itself, push the situation over the line into the area of just cause. The lack of apology must be weighed with all of the circumstances as part of a contextual analysis. It this case, the circumstances were not such that a lack of an apology evidenced a repudiation of the employment relationship, particularly when Mr. Shakur was not asked to apologize nor was he specifically offered the opportunity to apologize.
[20] I therefore find that the defence of just cause for termination, justifying Mr. Shakur’s termination without notice, has not been made out.
(b) Employment Agreement
[21] As indicated above, Mitchell Plastics relies upon the Employment Agreement as limiting Mr. Shakur’s entitlement to notice to the minimum termination and severance periods mandated by the ESA, being in this case a total of 11 weeks.
[22] Mr. Young relies upon the cases of Techform Products Ltd. V. Wolda, 2001 CarswellOnt 3451 (Ont. C.A.) and Clarke v Insight Components (Canada) Inc., (2008) ONCA 837 (C.A.) as standing for the proposition that that continued employment and forbearance on the part of the employer from dismissing an employee can constitute consideration for a new employment agreement during the currency of the employment relationship.
[23] In my view, both of these cases are distinguishable from the present case. In the Techform case, involving a contract respecting rights to an invention, not notice of termination, there was a specific finding [see para. 28] that the employer communicated to the employee that if he did not sign the agreement his services would be terminated on sixty days’ notice, resulting in a tacit promise on the part of the employer to forebear from dismissing the employee. This was contrasted with the situation posited by the Court in Techform at para. 26 that an employer cannot present the employee with an amendment to the employment contract and expect a binding contractual amendment to result without at least an implicit promise of reasonable forbearance for some period of time thereafter. Similarly, in Clarke the Court found that significant changes to the remuneration package, including some improvements, constituted consideration supporting the enforceability of the agreement.
[24] In this case Mr. Shakur was hired on or about September 15, 2001 and started work on September 24. The contract of employment came into existence by at least that time. There was no consideration for the Employment Agreement which he was asked to sign the next day, particularly where no explanation of the consequences of his refusing to sign it was given to him. There was no “implicit promise of reasonable forbearance” given by Mitchell Plastics. Requiring an employer to communicate the terms of employment at the time of hiring, so that the employee can make an informed decision on whether to accept the employment on those terms, is not a difficult imposition on an employer, and serves to promote certainty on the ground rules governing a subsequent termination of the relationship.
[25] I therefore find that the obligation on Mitchell Plastics to give notice of termination to Mr. Shakur was not limited to the minimums under the ESA pursuant to the Employment Agreement.
(c) Reasonable Notice Period
[26] Mr. Verbanac, on behalf of Mr. Shakur, argues in favour of a reasonable notice period of five to six months, while Mr. Young, on behalf of Mitchell Plastics suggests that it should be three to four months. The factors to be considered by the Court under the Bardal formula, reinforced recently by the Supreme Court of Canada in Keays v. Honda Canada Inc., 2008 SCC 39, 2008 CarswellOnt 3743 (SCC) are well known. It is also established that there is no “rule of thumb” or formula for determining reasonable notice. Weighing the factors of the character of Mr. Shakur’s employment, his length of service, his age and his prospects of re-employment, I would set the reasonable notice period at 4.5 months.
(d) Mitigation
[27] Mr. Shakur testified with respect to the steps which he took to find alternate employment, and he was successful in doing so shortly after the end of the reasonable notice period referred to above. Mitchell Plastics has not satisfied me that Mr. Shakur’s efforts were unreasonable or lacking in the circumstances. I therefore find that Mr. Shakur did take reasonable steps to mitigate his damages.
(e) Enhanced Damages
[28] Mr. Verbanuc argued that enhanced, aggravated or punitive damages should be awarded against Mitchell Plastics due to the manner in which it conducted the investigation of the incident and carried out the termination. In this respect he cited the evidence led at trial respecting the manner in which Mitchell Plastics dealt with Mr. Shakur’s WSIB claims as exhibiting “tunnel vision” on the part of Mitchell Plastics which tainted the investigation of the incident of August 17, 2007.
[29] Applying the principles laid down by the Supreme Court of Canada in Keays I find that the conduct of Mitchell Plastics was not at a level of unfairness or bad faith as to attract an award of extra damages. In any event, there was no evidence that Mr. Shakur suffered actual damages, which can be regarded as having been in the contemplation of the parties, resulting from the manner of the dismissal.
Disposition
[30] Based upon the foregoing, there shall be judgment in favour of the Plaintiff in the sum of $ 12,514.00, representing pay in lieu of 4.5 months notice, as follows:
Salary loss $11,759.50
Deferred Profit
Sharing Plan $369.00
Benefits $385.50
TOTAL $12,514.00
[31] This figure is inclusive of pre-judgment interest in accordance with the Courts of Justice Act, as provided in the agreed-upon grid provided by counsel. I would not allow anything for the Canada Pension Plan loss claimed, as I have not been provided with any authority for this type of award.
[32] Counsel may make brief submissions respecting costs, including the details of any relevant Offers to Settle; the plaintiff’s submissions to be provided within 21 days, and the defendant’s within 30 days, of the release of this decision.
D. A. Broad J.
Released: February 13, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wazir Shakur
Plaintiff
AND
Mitchell Plastics (a division of ULTRA MANUFACTURING LIMITED)
Defendant
REASONS FOR JUDGMENT
D. A. Broad J.
Released: February 13, 2012