If physical abuse isn't just cause for firing, what is?

This article was originally published by The Hamilton Spectator.

Terminated unionized workers can grieve their termination and end up with an order for reinstatement if an adjudicator does not find the dismissal was warranted, writes Ed Canning.

I find myself often in discussion with employees who worry that an employer is trying to set them up to terminate them without pay in lieu of notice … a severance package. To make my point I often tell them that in order to not be entitled to a severance package based on their age, seniority and level of responsibility, they would have had to have assaulted somebody or stolen something. I always note that this is an exaggeration, but not very far from the truth.

Just because an employer gives you a performance improvement plan and warns you that if you do not meet its goals you might be terminated does not mean they will have just cause to terminate you with nothing. A lot of paperwork doesn't change the facts.

In order for just cause to be found, an employee has to do something so outrageous it fundamentally breaches the core terms of the employment relationship. Alternatively, they would need to wilfully or almost wilfully disobey repeated directions after being warned that continuing in that vein would lead to their termination.

Somewhat notoriously, just cause is even harder to prove in a unionized setting. Any terminated unionized worker can grieve their termination and end up with an order for reinstatement if the adjudicator does not find the dismissal was warranted.

Neil worked as a personal-care attendant in a long-term care home. One day he was attempting to bathe a cognitively unwell resident with the assistance of two other employees, an observing nursing student and a nurse. Part of the job class profile for his position was occasional exposure to physical danger from residents with dementia who unintentionally became aggravated leading to physical or verbal aggression.

This particular resident was known to become occasionally aggressive and therefore two people were assigned to the bathing process. Neil was trying to put the resident’s pants back on when she started kicking and punching him. Neil slapped the resident on the leg and called her a b--ch. When examined later the resident did not have any mark or redness on her leg or any sign of injury. The slap apparently shocked the resident, who calmed down.

The usual technique in this circumstance would be to stop and go. Simply step back from the resident and wait for them to calm down before proceeding with care.

The incident was reported, investigated and Neil was terminated. The employer felt Neil's actions were against everything the employer stood for and directly contradicted its policy for therapeutic care. The employer took the position that the employment relationship had been irreparably damaged.

Neil testified that he had been kicked in the face and it was not safe for him to step away since the resident was half-dressed, the floor was wet and she could have slipped and fallen.

When Neil grieved his termination the adjudicator found that his conduct amounted to physical and verbal abuse. The adjudicator found, however, that Neil's actions were a momentary spontaneous reaction to being kicked in the face. The adjudicator found, somehow, that Neil did not act deliberately to harm or mistreat the resident. Given there was no history of similar behaviour by Neil and it was not premeditated, the adjudicator found it was a momentary aberration since Neil was truthful in the investigation and apologized for his behaviour. Neil was ordered reinstated to his old job following the one-year unpaid suspension that he had effectively already served.

Personally, I would have thought there was just cause for Neil's termination. That certainly would have been the case if he was not in a union. Neil received lots of training. An employer should not be expected to continue the employment of a personal-care attendant whose first reaction to patient violence is to smack them.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Ross & McBride professionals will be pleased to discuss resolutions to specific legal concerns you may have.

Ed Canning
Ed Canning
P: 905.572.5809