“Virtue is its own punishment”
– Aneuriv Bevan
Workplace misconduct may be real, but sometimes it still leads to a paid vacation.
Machine operator Martin Jazarevic had a handful of problems at his job. Working at the Oakville, Ontario factory of automotive parts supplier Schaeffler Canada, Jazarevic needed to pay attention to detail. Jazarevic had to regularly inspect his machine and ensure his product met his employer’s specifications.
For six years there were very few problems. Then, however, following the death of his wife, Jazarevic’s work started to suffer. He produced non-conforming parts and was forced to participate in a coaching session to review his error. According to the company’s progressive discipline policy, Jazarevic first had to be warned and then, after three more infractions in any 12-month period, he could be dismissed.
Jazarevic’s errors mounted and his absenteeism rose. He continued to receive disciplinary notices and after producing more faulty parts, he was confronted by his group leader to discuss his ongoing concerns. Jazarevic explained that he was having issues outside of work so he was taken to see a company nurse who asked him to apply for short term disability and told him to see a doctor. That same day, Jazarevic was diagnosed with depression and alcohol dependency. He applied for disability and was supposed to receive pay for eight weeks.
While off work, Jazarevic was fired. Schaeffler’s management decided that, since he had received four disciplinary warnings within a 12-month period, their decision was justified. Jazarevic disagreed and decided to sue.
In rejecting Schaeffler’s defence, Justice Roland Haines was not impressed with its decision to dismiss an employee who had been approved for sick leave. According to the judge, the company knew that Jazarevic had gone to see a doctor and that he was having various personal problems, so it should have investigated further before deciding it would fire him. As well, since Schaeffler claimed that it simply was relying on its policy in dismissing Jazarevic, it had to follow all of that policy’s terms, which included a review of the circumstances of Jazarevic’s situation before finally deciding his fate.
Canadian employers continue to allege cause for dismissal based on any perceived wrong. Although, in cases of serious misconduct such as theft or fraud, they are justified, in most cases they are not. Judges continue to require employers to show that they investigated misconduct, considered any mitigating circumstances and first offered coaching to any employee they wish to fire without notice. Ultimately, the punishment must fit the crime.
– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at email@example.com