Precision Utility Limited v. G. Sangiuliano, and Ministry of Labour
File No.: 0665-99-ES Date: June 8, 2000 Ontario Labour Relations Board
Precision Utility Limited, Applicant v. G. Sangiuliano, and Ministry of Labour, Responding Parties.
Before: Brian McLean, Vice-Chair.
Appearances: John Schipani for the applicant; Greg Sangiuliano appearing on his own behalf; Margo MacKinnon for the Ministry of Labour.
Decision of the Board
1This is an employer’s appeal of an Order to Pay issued by an Employment Standards Officer pursuant to section 68 of the Employment Standards Act (“the Act”).
2A hearing was held in Toronto on March 30, 2000 to consider the appeal. The issue on appeal is whether Greg Sangiuliano is entitled to termination pay as ordered by the Employment Standards Officer.
3The employer is a small company which conducts gas pipeline locating under contract and for Enbridge Consumers Gas. Mr. Sangiuliano was employed as a gas pipeline locator for the employer. His job was to locate gas lines for customers of Enbridge Consumers Gas (homeowners) in the Regional Municipality of Peel who intended to dig on their property, to ensure that a gasline would not be damaged in the digging. There was no dispute that the employee’s job was an important one; any mistake in locating a gas pipeline could have disastrous consequences.
4Mr. John Schipani, the employer’s President, testified on behalf of the employer, Precision Utility Limited. Mr. Sangiuliano testified on his own behalf. No other witnesses were called.
5Mr. Schipani testified that Mr. Sangiuliano was a good locator who had been appropriately trained. In fact, he was so valued that the company had, at one time, accommodated Mr. Sangiuliano for a period when he lost his driver’s licence, which is a requirement of the job. The company also used Mr. Sangiuliano to train new pipeline locators. However, the company had expressed concern to Mr. Sangiuliano about the way that he dealt with problems that arose on the job. In particular, the company wished Mr. Sangiuliano to refrain from advising the homeowner when he was concerned that the drawings which set out the locations of the pipelines were inadequate. Instead, Mr. Sangiuliano was directed to call Enbridge Consumer Gas to discuss the problem.
6In the beginning of October 1998, Mr. Schipani received a call from an employee of Enbridge Consumers Gas who complained about the fact that Mr. Sangiuliano had advised a customer that in Mr. Sangiuliano’s view, the pipeline records which pertained to the customer’s home were outdated and inaccurate, and accordingly, Mr. Sangiuliano had refused to locate the pipeline. Mr. Schipani testified that the Enbridge employee said he wanted Mr. Sangiuliano disciplined, but not fired.
7Accordingly, Mr. Schipani prepared a letter to Mr. Sangiuliano which advised him that he was suspended for a week. Mr. Schipani called Mr. Sangiuliano into his office in the middle of the workday on October 6, 1998 and gave him the letter. Mr. Sangiuliano became upset about the letter and argued with Mr. Schipani. Mr. Sangiuliano used profane language in this argument. Mr. Schipani testified that he also said something to Mr. Schipani which Mr. Schipani took to be a threat to harm the company or Enbridge. As a result of this “threat”, Mr. Schipani terminated Mr. Sangiuliano’s employment without notice or pay in lieu of notice.
8Mr. Sangiuliano’s version of events was slightly different from that advanced by the company. He said that he was called into a meeting with Mr. Schipani at 2:00 p.m. Mr. Schipani told him that Enbridge Consumers Gas wanted him fired because he told a customer that Enbridge Consumers Gas Pipeline records were insufficient and out-dated. Mr. Schipani told him that rather than firing him he was going to give him a one-week suspension without pay. He denies making any threats to his employer or to Enbridge.
9Mr. Sangiuliano acknowledged that he argued with Mr. Schipani. He tried to have Mr. Schipani explain why he was suspending him. Eventually, Mr. Schipani said he was fired. Mr. Sangiuliano asked “why?” Mr. Schipani said “Because I don’t like you”.
10Mr. Sangiuliano testified that he honestly believed that Enbridge Consumers Gas pipeline records are often insufficient and outdated. He believed that he often faced potentially dangerous situations because he could not trust the blueprints which were provided by Enbridge Consumers Gas and which purported to show the locations of the pipeline. He also believed that he had an obligation to tell the customer (the property owner) because they had a right to know, if for no other reason than to know why they were not allowed to dig on their property when they expected to.
11From the evidence presented to me at the hearing, I am satisfied that Mr. Sangiuliano was extremely careful about the way in which he conducted his job responsibilities. He would not report the location of a pipeline to a customer unless he was confident that he had correctly identified the location of the pipeline. Mr. Sangiuliano has substantial concerns about the records that are used to locate pipelines in the Toronto area.
Decision
12Although the issue was not directly before me, I am satisfied that at least part of the reason for the suspension of Mr. Sangiuliano’s dismissal was due to the fact that he exercised rights under the Occupational Health & Safety Act to refuse to perform work which he genuinely believed to be unsafe. One of the “threats” that Mr. Sangiuliano made against the company was to make a report to the health and safety authorities because he believed that due to inaccurate blueprints, it was unsafe to dig in many areas. It was because of these “threats” that the Company finally determined that Mr. Sangiuliano could no longer be an employee. Under these circumstances, Mr. Sangiuliano is entitled to termination pay.
13Even had I not found that Mr. Sangiuliano was terminated in part for reasons contrary to law, I am also satisfied, based on the evidence before me, that Mr. Sangiuliano was not guilty of willful misconduct. While the company relied on Mr. Sangiuliano’s conduct in the meeting with Mr. Schipani, there was scant evidence of any true misconduct. Mr. Sangiuliano admitted to using foul language, but that is not enough under the circumstances to justify the termination of his employment without providing the notice required by the Act. As for the alleged threats (other than those to report Health and Safety issues), counsel for the Ministry of Labour and the Board asked Mr. Schipani several times what Mr. Sangiuliano’s exact words were when he made the threats. Mr. Schipani never gave clear evidence about what Mr. Sangiuliano said and therefore never proved that Mr. Sangiuliano made any threat other than a threat to enforce his rights under the Occupational Health & Safety Act.
Disposition
14For the foregoing reasons, the employer’s application is dismissed. The director is ordered to pay the amount of monies held in trust to Mr. Sangiuliano and the administration fee to the Government Consolidated Revenue Fund.
“Brian McLean”
for the Board