1936-99-ES Hector (Chuck) Depelteau, Applicant v. Battle Mountain Canada Ltd (Golden Giant Mine) and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 13002581
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Hector (Chuck) Depelteau on his own behalf; Ken Hughes, Paul Delleman and Maura Pelletier the employer; Karima Chatur for the Ministry of Labour.
DECISION OF THE BOARD; June 19, 2000
The name of the responding employer is amended to read: “Battle Mountain Canada Ltd (Golden Giant Mine)”.
This is an application to review the decision of an Employment Standards Officer (the “ESO”) to not issue an order.
The applicant was discharged from his employment on January 28, 1999. He had been employed as a security guard by Battle Mountain Canada Ltd (at the Golden Giant Mine) (hereinafter referred to as the “employer” or the “mine”) since February of 1985.
In or about September of 1998, Mr. Paul Delleman assumed the position of Chief of Security. He later became Director for Safety and Loss Prevention for the mine. Mr. Delleman has made his view clear that the applicant’s performance and attitude were seriously lacking.
This case, however, is not about whether there was cause for the applicant’s discharge.
At common law or under the Employment Standards Act (the “ESA”), there is, effectively, no absolute impediment to an employer discharging an employee at will. At common law a wrongful dismissal may give rise to damages.
Under the ESA, however, there simply is no means to directly challenge a termination of employment as either wrongful or unjust. There are, however, provisions under the Act which require that certain notice or pay in lieu thereof accompany any termination of employment. Similarly, certain employees will also be entitled to severance pay upon their termination.
It was not disputed that, but for the issue raised by the employer, the applicant would otherwise have been entitled to both pay in lieu of notice and severance pay.
The employer relies on section 57(10)(c) which provides that the requirement for notice (and, consequently, pay lieu of same) does not apply to:
… an employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer.
(Section 58(6)(c) provides an identically worded exception to the requirement to pay severance pay).
- The employer points to three separate incidents any or all of which it asserts amount to “wilful misconduct or disobedience or wilful neglect of duty”:
On the night of January 14/15, 1999 it is claimed that the applicant mishandled an incident during his night shift;
On the same night it is claimed that the applicant falsified an entry in his “Daily Security Report”, a log which he was required to fill out in the normal course of his duties; and
On January 1 and 6, 1999 it is asserted that the applicant, despite prior explicit directions from his employer to the contrary, spent some portion of his work time playing solitaire on his computer.
The employer called and relied upon the evidence of Mr. Delleman; the applicant testified on his own behalf. There were no other witnesses. There were conflicts in the evidence. I have had to resolve some of those conflicts. To the extent I have had to measure the evidence, I have relied on the usual factors including the demeanour of the witnesses and their apparent desire to tell the truth unadorned by reason of self-interest. I have also considered what seems most probable in the circumstances.
I have also not ignored the fact that, in the particular context of this case, it falls to the employer to establish that the applicant has been guilty of wilful misconduct.
The historical approach to the treatment of “wilful misconduct” has been set out in VME Equipment of Canada Ltd [1992] O.E. A.S.D. No. 230 (Randall) where, at page 15 the referee observed as follows:
… Much has been written on the meaning of the words ‘wilful misconduct’. It seems to me, however, that that authority can be summarized briefly. In the first place, serious misconduct has to be proven. That is conduct that seriously interferes with either the performance of the employee’s job duties or that of his or her co-workers. Normally the Employer would have to demonstrate that harm has been done to its operation and that the misconduct amounted to a repudiation by the employee of the employment contract. There are two general categories of serious misconduct. There will be single acts: insubordination, theft and dishonesty, and physical violence against other employees, for instance, which may, standing on their own, meet that standard of seriousness. As well, there will be less serious repetitive forms of misconduct, which if handled properly by the employer, will also meet this standard of seriousness. The employer, in this scenario, must have explained to the employee after each occurrence that the conduct in question was not acceptable and that if continued would result in termination and there must be, subsequent to these warnings, a culminating incident.
In addition to proving that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from ‘just cause’, that the conduct complained of is ‘wilful’. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.
The detail with which I must review each of the alleged incidents varies. I deal with them in turn.
I am persuaded (as the Ministry of Labour ultimately – and contrary to the position of the ESO who refused to issue the order - contended) that neither of the first two incidents can be seen to amount to “wilful misconduct” (and I use the phrase as a shorthand for all of the contents of section 57(10)(c)).
Insofar as the alleged unsatisfactory investigation is concerned, I am satisfied that, at its highest, this represents an error of judgement on the applicant’s part but cannot be said to amount to wilful misconduct.
The incident relates to the investigation which resulted when the applicant’s partner reported to him that she thought she may have seen “visible gold” (i.e. loose and/or unsecured), an occurrence no doubt worthy of some investigation by security personnel in a gold mine.
However, Mr. Delleman was obviously not a witness to the initial exchanges between the applicant and his partner nor does he have any direct knowledge as to the “scene” being investigated. The applicant asserts that his response was appropriate given that his partner had produced no “visible gold” along with her initial report and the fact that none was immediately discovered when they inspected the site.
Mr. Delleman asserts that the site ought to have been treated as a potential crime scene with appropriate precautions being taken and appropriate authorities being immediately notified.
The applicant asserts that, first of all, since his partner did not produce any actual gold (at most, on any one’s view this was a matter of a varying number of small “flakes” of gold) with her initial verbal report to him, there was nothing absolutely pressing or urgent about the matter.
Further, when the two of them attended the site, the applicant claims there was no visible gold in sight. The loose contents and debris in the area were swept up, bagged and transferred to management along with a report prepared by the applicant’s partner.
Mr. Delleman asserts vehemently that this manner of proceeding was unacceptable and that the applicant succeeded in destroying evidence at a potential crime scene.
Mr. Delleman’s view may well be the better one. As the employer’s representative he is certainly presumptively entitled to establish proper work standards.
I am not persuaded, however, that this incident amounts to much more than a difference of opinion. It is a matter of judgement. The applicant was of the view that the incident was of minor importance and not worthy of being treated as a potential crime scene. He exercised his judgment and acted accordingly.
Mr. Delleman’s assessment of what was warranted at the time may well be the preferable one, but I have not seen persuaded, even if that is the case, that the applicant’s dereliction was anything more than a lapse in judgement. It was not wilful misconduct.
In coming to this conclusion, I must comment on an aspect of Mr. Delleman’s motivation which may well have coloured his approach to the applicant.
Mr. Delleman candidly conceded that in the aftermath of this incident he viewed the applicant as a “suspect” in this potential crime. He declined, however, (and none of the parties pursued the issue) to comment on the subsequent results of his investigation into the matter. And while the employer did not rely on any alleged theft in the applicant’s termination or in relation to the issue before me (indeed no theft was established before me, let alone one for which the applicant bore any responsibility), I am concerned that the applicant’s status as a “suspect” may have served to unfairly colour some of the employer’s views and responses to the facts before me.
I have also been troubled that, as a general matter, and despite its apparent ready availability, the employer has opted in some significant instances not to produce any evidence to corroborate Mr. Delleman’s testimony. This is particularly troubling where, as here, no witnesses with direct first hand knowledge were produced to substantiate any of the allegations levelled at the applicant.
In relation to this specific allegation, for example, there is a factual dispute about what was or not found in the way of “flakes” on the night in question. Despite claiming to continue possess the flakes in question (whose origin was contested by the applicant), the actual physical evidence was not produced.
In any event, I am simply not persuaded, even otherwise accepting the employer’s evidence, that the applicant’s conduct on the night in question amounted to more than an error in judgement.
I am equally unpersuaded that the applicant was guilty of wilful misconduct in relation to the other impugned event on the night of January 14/15, 1999.
The employer asserted both before me and in the letter of termination issued to the applicant that he was responsible for an “outright falsification of a log entry”.
The entry in question reads as follows:
2345 – Debbie [the applicant’s partner] to Hwy #614 Junction to advise Greyhound Passengers to Return Home – No Bus Till A.M. Requested by O.P.P. & Greyhound/Marathon. (Hwy #17 closed/Nipigon – Chip Truck & Propane Truck accident).
The applicant testified that there had been a highway accident that evening as a result of which the bus scheduled to reach the Marathon stop (located approximately 1000 yards from the mine entrance) would not be arriving. The fact of the accident and its consequences were not disputed. The applicant claimed to have received at least one telephone call from each of the O.P.P. and the Greyhound Bus Company wherein it was requested that Mine Security be dispatched to the (presumably unstaffed) bus stop to advise potential passengers or others waiting that the bus would not be arriving. The applicant described this as a “civilian assist”.
And while the employer disputes aspects of the applicant’s version of the facts, there was no general assault on the plausibility of such a scenario, no surprise expressed at the possibility of such a request in the circumstances.
The employer disputes, however, that the calls were ever received. It filed four documents described as “extension detail reports”, computer records detailing telephone calls made to and from four security telephone extensions at the workplace. None of these records show calls to or from the O.P.P. or Greyhound. Thus, it is claimed, the applicant falsified his log entry.
No witnesses from the O.P.P. or from Greyhound were produced before me. Neither were any records or other documentary evidence pertaining to those operations produced.
Both Mr. Delleman and the applicant, however, indicated that they had each had subsequent conversations with one or more of the O.P.P. officers involved. Indeed, while those exchanges or at least these witnesses reports about them are clearly hearsay, it is clear that the employer was satisfied that there had been some contact between the applicant and the O.P.P. that evening although its timing and may not have been consistent with the log entry.
Again, I am concerned that the employer’s then (and possibly continuing) view of the applicant as a suspect has seriously undermined its ability to evaluate the circumstances. The subtext and underlying implication which was never spoken out loud or explicitly was that the applicant seized on an opportunity to exclude his partner from the site to facilitate whatever nefarious activities he was engaged in. As I have indicated, however, not only was this not “spoken out loud” it was neither proved nor explicitly asserted.
Yet it was that suspicion which was relied upon to explain why no one took the simple step of discussing this matter with the applicant and securing his view of events at the time. The result of such an approach might have been more satisfactory than requiring witnesses to recall events which, by the time of the hearing, had become somewhat stale.
In any event, I am not prepared on the basis of only the telephone records produced to me to conclude that the applicant was guilty of wilful misconduct. It may well have been onerous and inconvenient to have arranged for the evidence of others with first hand knowledge to paint a more complete and reliable picture of events.
These are serious allegations with serious consequences and I am unable to arrive at the conclusion urged upon me by the employer on the basis of the limited evidence before me.
This brings me finally to a consideration of the last allegation.
There has apparently been a history of concern about security guards spending time playing computer games during their working hours.
Apparently back in July of 1998, concern about security guards distracting themselves by indulging in computer games – solitaire appears to have been the computer game of choice – led to the game being removed from its normal location on the computer hard drive.
It appears, however, that the solitaire program was not removed in its entirety, but rather was moved to a different location on the hard drive where it must have been thought to not be readily accessible.
It did not take long, however, for someone to find the file and distribute it in the form of an e-mail attachment to all of the security staff. Although not necessarily consistent with all of his other evidence and with some of the documents referred to, Mr. Delleman testified that it was in January of 1999 that he learned that the e-mails and attachment had been forwarded from the applicant’s account on July 4, 1998.
The applicant explained that he did not have the computer literacy to have completed such a task, but that his partner at the time was the one who had located and distributed the file using his e-mail account (she, he explained further, was a new part-time employee at the time without her own e-mail account).
Whoever ultimately bears the credit or blame for forwarding the file is of no concern to me. For the employer does not rely on those events as part of its claim of wilful misconduct.
In any event, it appears that even after the employer may have thought access to the game had been removed (or at least restricted) security guards may have continued to indulge.
On December 29, 1998 Mr. Delleman sent an e-mail to all security staff advising that all games had been removed from the computer and that it was expected that none would reappear. He also made his view abundantly clear that “playing of games on company time is time theft”.
There can be no doubt that this was a clear directive to all staff that the playing of computer games while on duty was prohibited.
Mr. Delleman claims that his subsequent review of the “temporary” directory on the security control desk computer disclosed three temporary files for a solitaire computer game. The times during which the temporary files suggested the game had been accessed corresponded to times the applicant was on duty and, more specifically, to times he was at the security desk while his partner was on patrol. No documentary evidence was provided to support these conclusions Mr. Delleman reported in his evidence.
The applicant, for his part, denies that he ever played any computer games at work subsequent to late December, 1998. And while he claimed not to have seen Mr. Delleman’s e-mail, he did not dispute that he and Mr. Delleman discussed the issue sometime in December. He asserts, however, that, as a result of his discussion with Mr. Delleman, he deleted the computer game file and did not play solitaire again.
The contradictions in the evidence are plain – there are others which I need not detail.
Having considered the evidence, however, I am prepared, with some hesitation, to accept the applicant’s version of the relevant events. Mr. Delleman’s evidence, while generally given in a straightforward and truthful manner is not sufficient (particularly in view of the applicant’s denial) to permit me to conclude, on a balance of probabilities, that Mr. Depelteau played computer games while at work subsequent to December of 1998.
At its highest, Mr. Delleman’s evidence establishes that someone may have accessed a particular file at a particular time or times. Even if I were prepared (again on the basis of Mr. Delleman’s unsubstantiated report of what he saw in the computer log) to conclude that the “someone” was the applicant, there is no evidence to establish that the games were played (and certainly no such direct evidence). While, as I have already said, Mr. Delleman’s demeanour was sincere, the probative value of his testimony would have been enhanced if documentary evidence supporting the conclusions he reported had been placed before me, although even in such an eventuality there would still have been no direct evidence before me to establish the applicant’s dereliction.
While the issue of playing computer games at work during the long hours of the night shift may appear fanciful to some, there is no question that the issue is one this employer had previously identified as one of importance to it.
By the same token, however, “wilful misconduct” is a serious claim which, if established, deprives an employee of their statutory right to notice of termination and disentitles them from the benefit of an earned right to severance pay.
The evidence before me is insufficient to establish that the applicant engaged in “wilful misconduct”.
It follows therefore and in view of the concessions described earlier, that the applicant is entitled to pay in lieu of termination and severance pay.
The parties did not address the quantum of any such entitlement and I hereby remit the matter to them so that they may agree on the resulting amount of the
order to pay I shall issue as a result of my decision herein. A Labour Relations Officer may confer with them for that purpose.
- In the event the parties are unable to agree on the amounts to be included in the order to pay, the hearing may be reconvened to deal with that question.
“Bram Herlich”
for the Board