Any injury on the job can be devastating, be it a slip and fall or a lost finger. For many employees, the pain is aggravated by the actions of their employers, who often fail to file the correct paperwork with WSIB, delaying the compensation or illegally punishing the injured employee for daring to get hurt by disciplining or terminating them for “unrelated reasons.”
The law takes a very dim view of both of these actions, operating on the assumption that any discipline taken after a health and safety complaint is an illegal reprisal. An employer is required to show that their decision was not in any way tainted by the health and safety issue.
One of the rare reasons that have been upheld for terminations for cause involving a workplace injury is repeated and egregious dishonesty.
Repeated Egregious Dishonesty
The case of Lagala v. Pantene Building Supplies Ltd., 2024 ONSC 253, is an example of one of these rare cases.
Ms. Lagala was the Health, Safety, and Training Manager for Pantene Building Supplies, a role she had been in for over 13 years. Ms. Lagala was the person who wrote the health and safety policies and ensured Pantene was compliant with its duties towards WSIB.
The sequence of events leading to termination was:
- On March 28, 2019, Ms. Lagala fell in a parking lot at one of Pantene’s locations.
- Lagala did not report the accident as required or include it in her monthly accident reports. Instead, Ms. Lagala completed and signed the Employer Accident Form (Form 7) and reported her injury to WSIB in May 2019.
- WSIB approved her injury benefits.
- In October 2019, WSIB reviewed the file and requested that a different supervisor sign Form 7 and for Ms. Lagala to provide witness statements.
- Instead, Ms. Lagala instructed an employee below her to send an email confirming the accident. She provided two of her friends did not witness the accident as witnesses.
- Pantene learned about the WSIB claim in November 2019 following a verbal altercation between Ms. Lagala and another senior employee. Pantene then investigated the WSIB claim, revealing Ms. Lagala’s actions and the potentially fraudulent paperwork submitted.
- Lagala was terminated for-cause in December 18, 2019, for the verbal altercation and her actions regarding the WSIB claim.
Ms. Lagala brought a lawsuit for wrongful dismissal. In response, Pantene brought a counterclaim for a failure to repay a loan given to Ms. Lagala during employment.
In the subsequent legal proceedings, the Court ultimately ruled against Ms. Lagala’s wrongful dismissal claim, upholding the termination for cause. The Court found that the counterclaim could not proceed as the loan was officially between Ms. Lagala and a different company.
Key Takeaways for Employees
Other than not falsifying documents for financial benefit, the case highlights a number of points about employment law and why it is important to seek qualified legal advice early.
An Employer is Required to Prove Cause
Under the Common Law, when a termination letter relies on multiple issues, each allegation is viewed individually on its merits and cumulatively in the surrounding circumstances. The Court then reviews the actions taken by the employer and determines if the discipline imposed was warranted. The employer must prove its allegations and that its actions were reasonable.
A terminated employee is entitled to their minimum amounts under the Employment Standards Act, 2000 unless the employer can show the employee was “being bad on purpose.”
Costs Protect Employees
Although Ms. Lagala’s termination letter also cited the altercation as a reason for termination, Pantene abandoned this claim during the trial, narrowing the case to only the WSIB issue. While this abandonment was late, this type of narrowing is not unusual. Court time is limited, attendance is expensive, and Pantene probably knew it would lose on the altercation issue.
It may seem that Pantene was able to dodge the test, make numerous allegations in the termination letter to intimidate Ms. Lagala, and then only proceed with the WSIB portion at trial without consequence. This is incorrect. The consequence of Pantene’s actions would be reflected in a costs award following the trial.
Context is Everything
Ms. Lagala drafted the health and safety policies and enforced WSIB compliance. This made her actions much more serious, as it was clear she knew what she was doing was wrong. This pattern continued for months as Ms. Lagala hid information, instructed employees below her to corroborate the injury, and submitted late and modified documents to try to cover her tracks. By doing so, Ms. Lagala cemented her fate.
Determining if cause was met is contextual, with the standard applied changing for different industries or positions. Swearing at your coworkers may be grounds for immediate termination for cause at a bank, but Tuesday in a factory.
It is far more difficult for an employer to justify terminating an employee for cause who is open about what occurred. The Courts have been very clear that a high level of misconduct is required to justify a termination for cause, and the entire context, including remorse, must be considered. An employer also cannot punish an employee twice for the same thing.
Get Advice Early
The best time to seek legal advice about possible employment misconduct towards you or by you is immediately after it occurs, not after the employer learns of it.
Anyone associated with the employer, including coworkers, your manager, human resources, and independent investigators, is not on your side. At best, they are neutral bystanders. The job of your manager, human resources, and any investigator paid by the employer is to protect the employer at your expense.
For victims of harassment, too many employees who dare to “rock the boat” by trying to enforce their own rights end up on the receiving end of misconduct allegations.
Many employees rely on personal relationships and assurances about a ‘fair and independent investigation’ from people they have come to trust, only to be betrayed and find themselves unemployed without any notice or severance.
You need someone qualified to protect you and your interests—a lawyer.
The lawyers at De Bousquet PC pride themselves on our person-first approach and on ensuring that our client’s rights are protected. Call us today if you have been subject to discipline or termination or are concerned about a workplace issue.