Failure to Interview Plaintiff Before Terminating for Just Cause Problematic:

In Czerniawski v Corma ( 2021 ONSC 1514) Justice Backhouse dealt with an allegation of just cause involving a  a 54 year old assembler with 19 years service.

The Plaintiff got in a shouting match with a co-worker over a work related issue. That worker complained to the supervisor who told the HR manager who told the supervisor to send the Plaintiff home because he was involved in two incidents .

The Plaintiff was not pleased and asked what he was being accused of. No answer was given other than the company was going to investigate. The Plaintiff refused to leave the premises. The Company called the police. Once the police arrived the Plaintiff left without incident.

Having been told to remain home until called, after four days of hearing nothing the Plaintiff  returned to the workplace to deliver a letter stating that he had not threatened anyone and demanding a formal apology.

The next day he was fired for engaging in threatening behaviour and insubordination by refusing to go home when ordered and for returning to the workplace without permission.

What concerned Justice Backhouse the most was the Defendant’s failure to interview the Plaintiff about the allegations, in fact to even tell the Plaintiff exactly what the allegations against him were. Instead their ” investigation” consisted of getting statements from other workers and supervisors. They then simply chose to believe those witnesses.

The Defendants’ case seemed to rest on the theory that the other workers were intimidated by the Plaintiff and feared he would be violent. However the Judge found that this evidence was ” overstated ” and that there was no objective evidence which would lead one to believe that the Plaintiff would use or threaten violence in the workplace especially as there was no history of such behaviour.

In finding that the Plaintiff’s conduct was worthy of discipline but not summary discharge, Justice Backhouse said as follows:

[34] Had the plaintiff been allowed to respond to the allegations as he requested on March 7, 2019 or as part of the investigation, the employer’s decision may have been more proportional to the misconduct which occurred. While having to call the police when he refused to leave the workplace was undoubtedly upsetting to co-workers and caused a disruption of the workplace, the plaintiff returned to his own work station after the meeting with Mr. Sandras and Mr. Beliski. He cooperated with the police when they arrived, left peaceably and there were no threats, intimidation or violence.

[38] In this case, the plaintiff was a conscientious employee and there were no prior incidents of violence. Any prior negative interactions with co-workers had not previously been brought to the plaintiff’s attention or been the subject of discipline.1 Progressive discipline for this incident such as a disciplinary letter or suspension would have sent the message that his behavior was unacceptable and given him a warning that a continuation could result in his dismissal.

[39] In Geluch v. Rosedale Golf Assn. Ltd., [2004] O.J.NO.2740, the Court held: 

1 On November 30, 2016, a warning letter was placed on the plaintiff’s file in regard to an outburst in the presence of his supervisor but no discipline was imposed.  Before an employee is terminated for cause, he or she should be advised that the misconduct is a matter of serious significance and its continuation could place his or her employment in jeopardy. 

[40] A number of cases have held that it was wrong for an employer to refrain from interviewing the plaintiff to obtain his version of events. (Peoples v. Ontario, 173 A.C.W.S. (3d) 165 at para 18; Poulos v. Toronto & Region Conservation For The Living City, [2009] OJ NO 6066; Ludchen v. Stelcrete Industries Ltd., 2013 ONSC 74945 at paras 68 and 79). 

[41] The defence relies upon Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460 as support for the proposition that a single act of disobedience can justify dismissal. Render is a decision involving sexual harassment in the workplace and does not assist on the facts of this case. 

[42] In accordance with the principle set out in McKinley, supra, the plaintiff’s misconduct was not so egregious that it can be said that he abandoned the intention to remain part of the employment relationship. The plaintiff should have been advised that his misconduct was serious and that a repetition would result in termination of this employment. 

[43] Considering all the circumstances including the lack of an apology, the misconduct in this case does not justify dismissal without notice. 

The Plaintiff was awarded 19 months notice.

My Comments :

In my opinion it is crucial and smart to interview any employee before discipling or discharging then for cause for the following reasons:

  1. You might actually learn something that will change your mind.
  2. Even if you have already made up your mind , you can tell the Court or the arbitrator that you considered the employee’s evidence and then arrived at your own carefully considered decision.
  3. The employee in question  may admit  to the conduct in the interview.
  4. The employee may commit him or herself  to a certain story which later on he or she will not be able to change after getting legal or a friends’ advice.
  5. If you openly record the interview, there can be little dispute later on about who said what .
  6. Interviewing is a skill that not everyone has. These  interviews should be conducted by someone who knows how to do it, which is probably not the local supervisor.

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