In Buchanan v. Weiss-Johnson Sheet Metal Ltd., 2023 ABCJ 207, an employer terminated its employee for cause after an interaction between the employee and its general manager concerning COVID-19 masking in the workplace. Justice L.D. Young found that the employer did not have “just cause” and awarded the employee damages in lieu of five months’ notice.
Buchanan provides a strong example of proportionality and the contextual approach required for assessing just cause, as set out by the Supreme Court of Canada in McKinley v BC Tel, 2001 SCC 38.
Facts
The following is the facts summarized by Justice L.D. Young:
- The Plaintiff Lee Buchanan was employed as a Lead Hand HVAC Installer with the Defendant Weiss-Johnson Sheet Metal.
- The Plaintiff one direct report. In his seven years and four months of service, he had not been subject to any discipline or warnings.
- The Plaintiff was terminated in November of 2020, eight or so months after COVID-19 was declared a global pandemic.
- The Defendant had not implemented any written masking policies. Rather, it verbally told its employees to mask in customer homes and while working in the warehouse. The Defendant informed its employees to “watch the news” and follow public health orders. It had stated that there would be repercussions for failing to abide by masking policies but did not provide details. Prior to the Plaintiff, no employee had been terminated for failing to abide by the Defendant’s masking requirements.
- Due to the lack of any written policy, there was much confusion surrounding the extent of the Defendant’s internal policies. For example, witnesses’ testimony made clear that employees were permitted to remove their mask to eat or drink, but it was unclear if they were permitted to remove the mask entirely for the period of eating/drinking, or only to move it down to their chin for a short period of time.
- On the date of termination, the Plaintiff entered the warehouse drinking tea. The defendant’s new general manager (the “GM”) whom the Plaintiff had not met, requested that he put his mask on three times in a span of 90 seconds, each time the Plaintiff responding that he “would when he finished his tea.” The GM stopped the Plaintiff and asked him for his name, to which the Plaintiff responded by asking the GM for his. The Court found that the Plaintiff did not yell or raise his voice during this interaction.
- As the Plaintiff was leaving the warehouse, he was called back to the Defendant’s boardroom and terminated for cause. When the Defendant provided the termination letter, it listed the reasons for cause as having a “confrontation” with the GM, and the Plaintiff’s “overall poor attitude.”
Analysis / Conclusion
As the Defendant had alleged just cause, Justice J.D. Young reiterated the requirement of the Court to proceed with the analysis as set out by the Supreme Court in McKinley, and recently articulated by the Alberta Court of Appeal in Baker v. Weyerhaeuser, 2022 ABCA 83:
“To reiterate, the three-step analysis from McKinley requires the court to first determine the nature and extent of the misconduct, then consider the surrounding circumstances for both employer and employee, before finally determining whether dismissal is warranted as a proportionate response. The question to be answered is whether the misconduct is sufficiently serious that it gives rise to a breakdown in the employment relationship.”
The “surrounding circumstances” in the current case involved the Plaintiff’s strong history of performance, no previous disciplinary warnings, and the Defendant’s failure in implementing and consistently enforcing a written masking policy. Paragraph 71 summarizes the Court’s analysis:
[71] The Defendant has not made clear just what the “misconduct” was that caused it to terminate the Plaintiff’s employment. I have already set this out above. The Defendant alleged it was a failure by the Plaintiff to follow the law, but the Defendant has not proven just what the “law” was that the Plaintiff failed to follow. The Defendant also alleged it was due to the Plaintiff’s insubordination, but I have determined that there was no insubordination. The Defendant also alleged that it was due to the Plaintiff’s failure to follow company policy, but I have determined that the company policy was unclear, not adequately disseminated to its employees and employees were not made aware of what specific disciplinary measures would follow a breach of company policy. The Plaintiff testified there would be repercussions for failure to wear a mask in a customer’s home but did not know what those repercussions would be. Rory testified that dismissal would result from failure to wear a mask in a customer’s home. However, this is not a situation where the Plaintiff had failed to wear a mask in a customer’s home. Furthermore, the evidence of the Defendant was that infractions of any masking requirement would be firstly to give an employee a verbal warning and thereafter, for a further infraction, a written warning. Neither of those were given to the Plaintiff. Yet further, neither failure to follow the law nor failure to follow company policy was set out in the Termination Letter as reasons for the Plaintiff’s dismissal. The Defendant also alleged it was due to the Plaintiff having a confrontation with Mr. McConaghy but I have determined that there was no confrontation. The Defendant also alleged it was due to the Plaintiff having an overall poor attitude but there was no evidence at all of that.”
In addition to breach of its policy, the Defendant alleged that the Plaintiff was “insubordinate” by failing to follow management’s instructions. Justice Young found that the Defendant had failed to establish insubordination, as the Plaintiff did not know he was speaking with management when he was advised to put on his mask.
In conclusion, Justice Young found that the Defendant did not have cause to terminate the Plaintiff’s employment, finding that the termination was “quick,” without proper investigation, and an assessment of his record or considering other alternatives.”
My Take
Summary dismissal, or termination for “just cause,” is often described as the “capital punishment” of employment law. Because of the importance of work in our lives, employers bear a significant burden to prove that dismissal for cause was justified in the circumstance.
Often, courts will require employers to show that they conducted a thorough investigation, contemplated alternative disciplinary actions, issued warnings prior to dismissal, and that no other alternative existed other than termination. Further, if the employer asserts that the reason for cause included a breach of its own internal policy, it must show that the policy was clear, that the repercussions for its breach were clearly communicated, and that it consistently enforced the policy and the repercussions of its breach.
The employer in Buchanan failed to reduce its masking policy to written form. Rather, it simply informed its employees that they were to “watch and follow the news.” This led to confusion amongst staff as to the extent of the employer’s policy and its repercussions, and as noted by Justice Young at para 59:
An employer should make very clear to its employees what the employer’s policies are that employees must follow and what disciplinary consequences will follow if an employee fails to adhere to a policy. That is not the case here. As to discipline, the evidence of the Plaintiff was that employees were told that there would be repercussions if an employee did not mask in a customer’s home, but were not told what those repercussions would be.
Lastly, Justice Young also provided interesting comments surrounding the law of insubordination. As part of the Defendant’s reasons included a confrontation/refusal to listen to management, Justice Young found that there couldn’t have been insubordination, as the Plaintiff did not know that he was speaking with management:
As set out in The Dictionary of Canadian Law[15], insubordination is, “in the context of labour and employment law . . . contemptuous and defiant comments towards management . . .” The Plaintiff did not know who Mr. McConaghy was and there was no evidence that the Plaintiff was being contemptuous or defiant during his interaction with Mr. McConaghy with the result that there was no insubordination by the Plaintiff.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Michael Hernandez is an employment lawyer at Bow River Law. He is a knowledgeable and skilled lawyer, handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.
