



COURT OF APPEAL FOR ONTARIO

CITATION:
Plester v. PolyOne
    Canada Inc., 2013 ONCA 47

DATE: 20130128

DOCKET: C54909

Laskin, LaForme and Hoy JJ.A.

BETWEEN

John Edward Plester

Plaintiff (Respondent)

and

PolyOne Canada Inc.

Defendant (Appellant)

Greg McGinnis and Brendan Clancy, for the appellant

Cherolyn R. Knapp and Heather J. Wood, for the
    respondent

Heard: January 11, 2013

On appeal from the order of Justice Bonnie J. Wein of the
    Superior Court of Justice, dated December 23, 2011, with reasons reported at
    2011 ONSC 6068.

ENDORSEMENT

[1]

The trial judge held that PolyOne Canada Inc. dismissed the respondent,
    John Plester without cause, and that he is therefore entitled to damages.
    PolyOne appeals this decision.

[2]

PolyOne argues that the trial judge erred in grounding her conclusion
    that dismissal was a disproportionate response to the respondents conduct on a
    particular incident of another employees conduct  the Glassford incident.

[3]

While we agree that the trial judge erred in focussing on the Glassford
    incident, we nonetheless agree with the trial judge that dismissal without
    notice or pay in lieu of notice was not warranted in the case of this 17-year
    employee with an almost unblemished record. In the result we dismiss this
    appeal.

[4]

The background, briefly, is as follows.

[5]

PolyOne is a manufacturing company. Its processes are complex and
    potentially dangerous. PolyOne has succeeded in ingraining a strong culture of
    workplace safety. Its Cardinal Rules of safety include the requirement that
    any machinery being worked on be locked out, and that employees immediately
    report any violations of safety policy.

[6]

The respondent, a line-supervisor, failed to lock-out a machine before
    attempting to fix it. It was the culmination of a frustrating day. He was
    distressed by his lapse and was trying to get his head around what he had
    done; he did not immediately report his violation. The next morning, he attempted
    to dissuade subordinates from reporting his mistake. A head-office executive
    was visiting. The respondent wanted to report himself at an opportune time.

[7]

By the time the respondent spoke to his subordinates, they had already
    reported his violation. PolyOne promptly dismissed the respondent, without
    notice or pay in lieu of notice.

[8]

Considering the importance of workplace safety, the trial judge
    characterized the respondents conduct as a serious mistake, compounded by his
    delay in reporting. She then considered how such breaches were viewed by
    PolyOne. She concluded that an incident involving another employee, Mr.
    Glassford, provided a good comparison. Mr. Glassford was an Operations Manager,
    and breached the same Cardinal Rule as the respondent. As Mr. Glassford was not
    terminated as a consequence of his breach of the Cardinal Rule, PolyOnes
    dismissal of the respondent was not a proportionate response.

[9]

PolyOne points out that Mr. Glassfords violation was not reported at
    the time, and only surfaced in the course of this action.  We note that this
    point does not appear to have been specifically argued before the trial judge. 
    Nevertheless, we agree that managements failure to terminate Mr. Glassford at that
    time cannot be used as a comparator, and the trial judge erred in treating it
    as such.

[10]

We
    appreciate that an employers ability to respond strongly and swiftly to
    violations of rules designed to ensure workplace safety reinforces the
    importance of such rules,
and promotes a culture of
    workplace safety. We also appreciate that a line-supervisor, such as the
    respondent, is generally subject to a higher standard than a line worker. And,
    given PolyOnes fully warranted concerns about workplace safety, we agree with
    the trial judge that the respondent made a serious mistake. However, the
    respondents mistake did not appear to have put any other persons at risk, and
    he was a long-standing, good, hard-working employee with only minor incidents
    of past discipline as a line-worker, pre-dating his promotion to line-supervisor
    some six years before.

[11]

Moreover,
    the trial judge accepted that the respondent planned to report his violation;
    what occurred was an intended short delay in reporting, as opposed to a
    suppression of a violation. We are not persuaded by PolyOnes argument that
    that the respondents conduct was such a violation of trust that a continuing
    relationship was impossible.

[12]

In
    the result, we agree with the trial judge that, in these circumstances,
    dismissal without notice or pay in lieu of notice was not warranted.

[13]

In
    the event it succeeded on its argument that it had just cause for dismissal,
    PolyOne also argued that the trial judge erred in concluding that the
    respondents actions had not disentitled him to payments under the
Employment
    Standards Act
,
2000
, S.O. 2000 c. 41. Having regard to our
    conclusion on the just cause issue, it is unnecessary for us to address this
    argument.

[14]

For
    the reasons above, the appeal is accordingly dismissed.  If the parties are
    unable to agree on costs, they may provide brief written submissions within
    thirty days.

John Laskin
    J.A.

H.S. LaForme
    J.A.

Alexandra Hoy
    J.A.


