An individual had been working as a labourer in an auto repair shop for over seven years and until the date of termination, had an unblemished record of employment. On that day, he was asked by his supervisor to work on two vans. Some two hours later, the supervisor inquired as to the employee’s progress and was told that work on the first vehicle had not been completed. The supervisor reprimanded the labourer by telling him: “Jesus, Gerald, we only get $45 or $50 per truck.” The labourer reacted to the criticism, in the presence of co-workers, by becoming loud and abusive and using foul language. He refused the supervisor’s suggestion that he calm down. The labourer began to taunt the supervisor into firing him. After the third such taunt, the supervisor did exactly what he was challenged to do and fired the labourer on the spot.
In Henry v. Foxco Ltd., the case based on the above facts, the New Brunswick Trial Court found that the employer had cause to terminate based upon the labourer’s insolent behaviour.
The decision was reversed on appeal. The Court of Appeal observed that while, an isolated act of insolence would not normally justify dismissal, exceptional circumstances could tip the balance the other way. These could include situations where (1) the employee and superior were no longer capable of maintaining a working relationship; (2) the incident undermined the superior’s credibility in the workplace and therefore his ability to supervise effectively; or (3) the employer had, as a result of the incident, suffered a financial loss, a loss of reputation or its business interests had been seriously harmed as when, for example, the incident occurred in front of customers.
In the absence of such factors, the Court indicated that the more appropriate response of an employer in these circumstances might be to proceed by way of progressive discipline, beginning with a warning that repeat episodes of such conduct would not be tolerated.
Courts will also consider whether the misconduct in question, involves profanities although the use of foul language, in and of itself, is not cause for dismissal. The use of profane language will clearly be of less significance when such language is commonly tolerated in the workplace. The Court further noted that what is said between co-workers in the workplace cannot be equated with profanities which “ricochet off the ears of the employer’s customers or within the auditory range of the general public.”
In determining whether insolent behaviour constitutes cause for termination, the Courts will also look at whether the misconduct reflects a momentary lapse of good judgment which may be repaired by a cooling off period and the opportunity thus presented for an apology.
In reaching its decision, the Court of Appeal drew from the case of McKinley v. B.C. Tel, in which the Supreme Court of Canada determined that, in assessing whether there is cause for termination, the misconduct in question must be examined within the context of the employee’s overall employment record. In McKinley, a single act of dishonesty, given the employee’s length of service and generally positive work record, was not found to be cause for termination.
In Henry, the plaintiff was a long-term employee with a clean employment record. The misconduct in question, represented an isolated incident. The employer was not able to establish that the incident resulted in irreparable harm to the relationship between the labourer and his supervisor or undermined the supervisor’s ability to direct the workplace. There was no evidence that the incident damaged the employer’s financial interests or its reputation with the public. The Court found that the use of profanities had been tolerated in the workplace. The Court concluded:
“Many things are said and done in the heat of the moment that, on reflection, are regretted by all. This is one of those cases. In my respectful view, the facts of the present case do not warrant the ultimate penalty in employment law: dismissal.”