2013 ONSC 690, 2013 ONSC 690

CITATION : Majewski v. Complex Services Inc., 2013 ONSC 690 COURT FILE NO.: 3614/11 DATE: 2013-01-30 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Mike Majewski, plaintiff, respondent AND: Complex Services Inc., defendant, appellant; BEFORE: Mr Justice Ramsay COUNSEL: Mr Frank Cesario for the appellant (defendant) Ms Margaret Hoy for the respondent (plaintiff) HEARD: January 29, 2013 at Welland ENDORSEMENT [ 1 ] The defendant appeals under

section 31 of the Courts of Justice Act from the judgement of Deputy Judge R. Adams of the Small Claims Court. Under

section 21 of the Act , such an appeal may be decided by one judge of the Divisional Court. [ 2 ] The plaintiff claimed for wrongful dismissal. The trial judge found that he had been dismissed without cause and ordered damages in lieu of eight months notice, which amounted to $25,000, the court’s jurisdictional limit, the plaintiff having abandoned the excess. [ 3 ] The parties agree that the standard of review is correctness for questions of law and palpable and overriding error for questions of fact: Housen v.

Nikolaisen , [2002] SCR 235. [ 4 ] The defendant says that the trial judge made the following errors: a. He failed to apply the correct legal test for unjust dismissal; b. He misapprehended material evidence; c. He erred in law in fixing eight months as an appropriate notice period. [ 5 ] The parties agree that the plaintiff’s employment as a card dealer at the casino in Niagara Falls was terminated without notice after 8 years and one month of service, when the plaintiff was 31 years old.

The plaintiff attempted to mitigate his damages by seeking new work, but it took him eight months to get a new job. [ 6 ] The incident that led to his termination took place on August 25, 2005. The plaintiff had a headache, so he wanted to go home early. Management sends dealers home early when business is slow. By signing the “early out” list, staff signify that they want to be chosen to go home. The plaintiff testified that he saw Richard Maracle, a co-worker, who had the early out list in his hand, in the middle of the hallway that leads to the scheduling office.

The plaintiff took the list and Richard took it back, saying “go look over there, it’s hanging over there.” Richard also mumbled something that the plaintiff could not make out. The plaintiff told him that he did not have to be such a “fucking prick.” He also called him a “fucking asshole.” Richard reported the incident to the shift manager. [ 7 ] In more detail, the plaintiff said: A. He had it in his hand, okay. He had the piece of paper in his hand like this, walking down the hall. When he was walking by me I goes, Rich, can I see that for a second. I had two fingers on it like this, and he went like this.

He ripped it out of my hand and he goes no, go down there and get it, but I don’t know what he mumbled. He mumbled something. That’s when I said to him, why you being such a f-ing prick. [ 8 ] The plaintiff was called into the shift manager’s office and told that he was under investigative suspension. He reacted angrily and threw his badge and identification onto the table in the direction of the shift manager.

After the investigation the executive director, taking into account the plaintiff’s previous discipline history, decided to fire him. [ 9 ] The respondent’s previous discipline history at the Casino: November 8, 2000 Verbal warning for absences on Jan. 21, Sept. 10 and Nov. 4, 2000. April 12, 2001 1 day suspension for losing temper in break room, using expressive tones toward fellow associate and banging on furniture. July 21, 2001 1 day “decision making day” (suspension) for inappropriate comments to guests, profane language in front of guests and associates.

November 12, 2003 Verbal warning for verbal abuse of an employee who was acting as referee in a hockey game in which plaintiff was playing for Casino team, resulting in ejection from game. October 6, 2004 Decision making day imposed by supervisor varied by executive director to written warning for interfering with pit manager who was trying to defuse a situation between plaintiff and guest. [ 10 ] The judge reviewed in detail the evidence about the employment history of the respondent and the incident in question.

He adverted to the issue of progressive discipline and what warnings the respondent plaintiff had received. He found that the plaintiff had done well in cross-examination and noted that the plaintiff did not agree that his behaviour over the years justified termination. The then judge concluded, “Based upon all of the evidence, I find that the plaintiff’s termination was without cause.” Liability [ 11 ] In wrongful dismissal actions, a court is required to analyze whether dismissal is proportionate to the nature and seriousness of the misconduct in the context of the employment relationship: McKinley v.

BC Tel. , [2001] SCR 161. The judge did not articulate this test. The appellant says that the judge failed to conduct any analysis along the required lines. The judge is not obliged to refer to the test explicitly, but looking at his reasons as a whole, with particular attention to the evidence that he considered important and his analysis of it, I conclude that he did not apply the correct test. [ 12 ] The judge started with the nature and challenge of the plaintiff’s job, including dealing with difficult customers.

He said, “This issue of Mr Majewski’s ability to deal with patrons and their rudeness was central to the case. Mr Majewski admitted that he would become upset by some of these behaviours and indicated in his evidence that his immediate supervisor, Jacalyn Langley, was not effective in assisting him with respect to some of these issues …” [ 13 ] In this the judge misconceived the central issue.

On the pleadings and the evidence, the central issue was the plaintiff’s abuse of his fellow employees and insubordination when called to account, and whether termination was disproportionate to his misconduct in the context of his previous discipline and his eight years of being a generally good employee. This misconception informed the judgment. For example, in his analysis of the incident that led to termination, the judge said, “I find as a fact that this exchange occurred beyond the gaming floor and certainly out of earshot of all patrons.

The issue would relate only to Mr Majewski’s relationship with Mr Maracle and how that might impact upon his ongoing responsibilities for the casino.” The judge spoke as if this fact would diminish the importance of the exchange. But how the exchange would impact upon the plaintiff’s relationship with his fellow employee and his responsibilities for the casino was the point of the discipline.

Only with that in mind could it be decided whether the discipline was proportionate. [ 14 ] Finally, just before the conclusory statement that the termination was without cause, the judge held that the plaintiff withstood cross-examination and noted, “The plaintiff did not agree that his behaviour as an employee over a period in excess of eight years justified his termination.” Again, this was beside the point.

The point was whether the employer’s action was disproportionate in the context, which required an examination of the reasonableness of the employer’s actions in the circumstances, including the history of the employment relationship and the previous application of discipline. [ 15 ] Reading the reasons as a whole I cannot say that the judge applied the correct legal test for liability.

Rather it appears to me that he decided that the plaintiff was justified in acting as he did because he did not have confidence in his supervisors and that conduct out of the presence of customers was not of great concern to the employer. (In fact, much of the discipline that the plaintiff received concerned incidents out of the presence of customers.) [ 16 ] In addition the judge misapprehended the evidence on the subject of the October 2004 discipline investigation.

This incident was important, because it had the potential to tip the balance one way or the other on the issue of how discipline had been applied previously. [ 17 ] This is the incident that resulted in a meeting between the plaintiff and the executive director, Mr Stamatakos.

The plaintiff asked for the meeting with Mr Stamatakos, the executive director, because he did not agree with the pit manager’s allegation that he had used profane language to the customer and he did not agree with the discipline imposed by his supervisor, Patrick Reilly. [ 18 ] Mr Reilly gave the plaintiff a decision making day for interfering with the pit manager’s efforts to defuse a situation with a customer who, according to the plaintiff, was blowing smoke at him. The plaintiff told Mr Stamatakos that he had interrupted the pit manager, but he had not used profanity.

He said that the pit manager’s account was a “made-up fairy tale.” [ 19 ] Mr Stamatakos testified that he thought that the fairy tale comment showed that the plaintiff was not taking the matter seriously, but he gave the plaintiff the benefit of the doubt and removed the reference to profanity from the discipline record. He changed the disposition from a decision making day to a written warning.

He wrote “any further situations like these will lead to progressive counselling.” He testified that he told the plaintiff that this was his last chance to keep his job. [ 20 ] The plaintiff, when asked in cross-examination whether Mr Stamatakos told him that this was his last chance to turn things around, said, “Something on that line.” Asked whether Mr Stamatakos told him that he was at the point where he was going to lose his job if he could not demonstrate an ability to control his temper and conduct himself appropriately, the plaintiff testified, “ … quite possibly.” Asked whether he promised Mr Stamatakos that he would turn things around, he said, “I guess I did.” The plaintiff said: “He [Stamatakos] goes, I’m taking care of this, but that’s when he said to me, he goes, ‘Mike, I won’t be able to deal with these situations like this anymore.’” [ 21 ] The judge reviewed Mr Stamatakos’ evidence on this point and said:

The plaintiff’s evidence did not agree with that of Mr Stamatakos in terms of a verbal warning that any further incident would result intermination … While he [Stamatakos] maintains that a verbal warning was provided to the plaintiff clearly indicating this was his lastchance prior to termination, the documentation on file does not support that statement and in fact Mr Stamatakos’ own evidence is suchthat it would be inappropriate to provide such a warning as the employee would be entitled to the benefit of an investigation prior totermination.

In that regard I prefer the evidence of the plaintiff. [22] But the evidence of the plaintiff did not contradict Mr Stamatakos on this point. The plaintiff accepted that Mr Stamatakoscould have told him that he was in danger of losing his job if he did not start to control his temper. The consideration of the plausibilityof Mr Stamatakos imposing future discipline without an investigation was a red herring.

It was not open to the judge to base on theplaintiff’s evidence a finding that the oral warning was not given. [23] The misapprehension of evidence led to an obvious error of fact that goes to the root of the defence, that is, a palpable andoverriding error. The failure to apply the correct legal test for liability was an error of law. These errors cannot fairly be characterized asharmless. The finding of liability cannot stand. [24] The record does not put me in a position to arrive at a verdict without making findings of credibility and choosing fromcompeting inferences that could be drawn from the evidence.

Unfortunate as it is to have a second trial in a small claims proceeding, Isee no alternative in the circumstances. Damages [25] I see no error in the judge’s assessment of damages. The eight-month period he chose was within the range recognized by thecase law, even for a relatively young plaintiff. See, e.g., Bustos v. Celestica International Inc. (ON SC), [2005] O.J.No. 2925 (SC). Conclusion [26] In the result the appeal is allowed, the judgment at trial including any cost order is set aside and a new trial is ordered.

Thenew trial is limited to the issue of liability, that is, whether the defendant had cause to terminate the plaintiff’s employment withoutnotice. [27] The costs of the first trial are reserved to the judge of the new trial. The parties may make written submissions to me as to thecosts of the appeal within 30 days. J.A. Ramsay J. Date: 2013-01-30