4154-98-ES All Metal Machine Specialties Limited, Applicant v. Chi Hung Trinh, Cuong Giang, Hung Giang and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41006969
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Neal B. Sommer and Shantanu Roy for the applicant; Tony Trinh, Cuong Giang and Hung Giang; Karima Chatur for the Ministry of Labour.
DECISION OF THE BOARD; April 10, 2000
1This is an application pursuant to the Employment Standards Act (the "Act") for review of an Order to Pay (No. 53225) made by an Employment Standards Officer.
2A hearing was held on February 8, 9 and 11, 2000.
3The applicant (herein referred to as "All Metal" or "the company") was ordered to pay termination pay and severance pay to Hung Giang, Cuong Giang and Tony Trinh, herein referred to collectively as "the claimants".
4The applicant submits that it is not required to make any payment to the claimants because they were guilty of wilful misconduct or wilful neglect of duty that was not condoned by the company. In other words, the company asserts that the facts come within the exception established by clause 57(10)(c) and clause 58(6)(c) of the Act. Generally speaking, the misconduct or neglect of duty is alleged to have consisted of activities such as punching time cards belonging to another person, making unauthorized telephone calls from work, using a television during working hours, smoking inside and/or during working hours, reading the newspaper during working hours, leaving a machine unattended, quitting work before the end of shift, and expanding the time used for breaks and lunch.
The Facts
5All Metal makes unlined brake shoes. At the material time, it employed approximately 8 to 10 production staff to work during the afternoon shift. More employees work during the day shift. The claimants were paid by the hour; they did not do piece-work.
6All Metal terminated the employment of the claimants by letter dated June 17, 1998. The events leading to these terminations are relatively straightforward. The company suspected the claimants of engaging in inappropriate conduct in the workplace. It based this suspicion in part on a verbal report from another employee in April 1998. In order to prove or disprove its suspicions, All Metal hired a private investigation firm, Oscar Hoyte & Associates Ltd. ("Hoyte & Associates").
7Peter Hughes, a private investigator employed by Hoyte & Associates, testified that he posed as a janitor on the afternoon shift. He stated that he was told to watch all the employees on the shift and to watch for certain activities by the employees. Hoyte & Associates filed two reports to All Metal, dated May 23 and May 28, 1998. Mr. Hughes stated that these reports were based on, and accurately reflect, his own reports of his observations. His own reports are not available.
8Mr. Hughes testified about his observations in respect of the claimants during the course of the afternoon shift on May 19, May 20, May 21, May 22, and May 25, 1998. It is not necessary to recount all of his observations here – some examples will suffice to illustrate the nature of the conduct which led to the dismissal of the claimants.
9On May 19, 1998, Tony Trinh was observed listening to the radio at his work station. He was later observed smoking by the pop machine. Hung Giang was observed walking about the plant floor and using the telephone in the quality control room on two occasions. Later, Hung Giang was observed watching a hockey game on television while squatting behind a machine during working hours. When asked about this by Peter Hughes, he is alleged to have said not to worry about John Cave [his immediate supervisor] but that it was necessary to watch for the boss, Kaz [Mr. Nishimura, the plant manager]. Mr. Hughes also observed that the claimants spent time away from their work stations during working hours and that they failed to return to work promptly after break time. Mr. Cave was observed to be working at his desk most of the time on May 19, but was also seen occasionally walking around the plant floor.
10On May 20, 1998, Mr. Hughes made similar observations of the claimants. Tony Trinh was observed listening to the radio and playing "Pro-line". He was also observed using the telephone in John Cave's office. Cuong Giang was observed going to his car. A few minutes later he returned with a book and a pad of paper and entered the lunchroom. He stayed in the lunch room for 10-15 minutes. Later, Hung Giang was also observed on the telephone in Mr. Cave's office. Cuong Giang and Tony Trinh were observed taking an extended lunch break. Hung Giang was observed punching out two time cards, which Mr. Hughes stated belonged to Hung Giang and Cuong Giang.
11On May 21, 1998, the radio was again heard by Mr. Hughes, apparently from the same direction as the previous day. Mr. Hughes observed Hung Giang waiting for "Kaz" to leave the plant. Hung Giang was again observed speaking on the telephone in the quality control room. Tony Trinh was observed using the telephone in Mr. Cave's office, after which he was observed speaking with Mr. Cave. Hung Giang again punched out two time cards, his and his brother's. Mr. Hughes observed that Tony Trinh and Cuong Giang stayed at their machines for the majority of this shift. Huang Giang was observed loading his machine and then leaving it unattended. He was also observed reading a newspaper or magazine at his machine. Mr. Cave was in his office for most of the shift.
12On May 22, 1998, the claimants were observed extending their lunch break. Hung Giang left the building between 6:55 p.m. and 7:20 p.m. At approximately 11:30 p.m., Cuong Giang was observed on a cellular phone in the washroom. He was at his machine most of the shift. Tony Trinh was at his machine most of the shift but was listening to the radio and reading the newspaper. Hung Giang was observed to leave his machine after loading it. He spent time socializing and reading newspapers or a magazine. Mr. Cave spent most of the shift reading a newspaper or doing paper work in his office, and walking around the plant floor.
13On May 25, 1998, Tony Trinh was again observed using the radio at his work station. He also had a cigarette at his work station. Hung Giang brought a television into the lunch room from outside the building. He was observed watching a hockey game during working hours. Tony Trinh joined him. John Cave was observed telling Hung Giang that there was a telephone call for him, which Mr. Giang took in Mr. Cave's office. Later, Hung Giang took the television set from the lunch room and set it up by his machine to watch. Hung Giang later left the premises in a car for about half an hour. Mr. Cave was overheard remarking that Hung Giang had watched television all night and "got no work done". Mr. Hughes reported that "they all laughed about it". The complainants were again observed extending their break time and lunch time. Mr. Cave was observed as being absent between 8:00 p.m. and 10:30 p.m.
14John Cave testified that he was, at all material times, the immediate supervisor of the claimants. He testified that he has worked for All Metal for a total of approximately 20 years, his most recent period of employment being from March, 1992 to the present. He was a supervisor from 1994 to 1998. Mr. Cave stated that he was responsible for supervising the afternoon shift. Because of his technical knowledge, he was also able to provide assistance to the production staff if required. He stated that he did not have the authority to discipline or discharge employees, although he was expected to deal with urgent problems such as injuries. Mr. Cave reported to Mr. Kaz Nishimura, the plant manager. Mr. Nishimura had an office at the plant on the second floor. If Mr. Cave had anything to discuss with Mr. Nishimura, he would normally do so at the start of the afternoon shift before Mr. Nishimura went home for the day. Mr. Cave stated that he was unaware of any policy or procedure manual describing his reporting responsibilities as supervisor.
15Mr. Cave explained the process used to make brake shoes and the procedures used on the machines operated by the claimants. At the material time, Cuong Giang and Tony Trinh worked on manually-operated machines which require constant attention by the operator, and Hung Giang worked on an automatic welder. An automatic welder is loaded by the operator and then does the welding automatically. Mr. Cave stated that an automatic welder must not be left unattended, in case something goes wrong. For instance, it is possible for the "fingers" inside the machine to break.
16Mr. Cave stated that the afternoon shift runs from 5 p.m. to 2:30 am. Monday to Thursday and 4:00 p.m. to 12:30 a.m. on Friday. Breaks are from 8:00 p.m. to 8:10 p.m. and 1:00 a.m. to 1:10 a.m. and lunch break is from 11:00 p.m. to 11:30 p.m. Break times, including the lunch break, are different for the Friday shift. All breaks start and end at the sound of a buzzer. Employees are paid for break time but not for lunch time.
17John Cave had very little recollection of events involving the claimants during the five afternoon shifts mentioned above. His office was on the plant floor adjacent to the production area.
18Mr. Cave stated that employees were not permitted to listen to the radio or make phone calls during the time when they were supposed to be working. Emergency telephone calls of a personal nature were permitted during break time. Employees were not permitted to smoke in the plant but smoking was permitted outside, during breaks. There were "no smoking" signs inside the plant.
19Mr. Cave stated that the claimants sometimes followed his directions, and sometimes they did not. He could not remember what he did when they refused to follow his directions but stated that he did not recommend disciplinary action to his superiors. He vaguely recollects reporting some incidents to Mr. Nishimura (see below). He was able to recall an incident approximately one year before the employment of the claimants was terminated, in which he discovered a television in the tool shop. He told Tony Trinh and Hung Giang (and another individual) that the television was not supposed to be there, and they took it away. He does not recollect if the television was on or off. Mr. Cave was unable to remember any incident since then of anyone watching television when they were supposed to be working.
20Mr. Cave stated that there was a telephone in his office and in the quality control room. He could not remember when he started locking his office during his absence from it. He admitted that he saw the claimants reading newspapers on the floor and told them not to. Mr. Cave was unsure if he reported this activity to Mr. Nishimura. He recalled telling the claimants not to use the telephone and stated that he reported their use of the telephone to Mr. Nishimura. He could not provide specific information about when or how often this behaviour might have been reported. He admitted that the claimants used the telephone in his office. Mr. Cave stated that the claimants sometimes made him feel concerned for his personal well-being.
21Mr. Cave testified that, on June 4, 1998, he was called for an interview with Elaine Okuno-Lonetto and Andy Redmond. At the interview, they discussed the private investigator's report. They also discussed his own performance as a supervisor. After the interview, he was demoted and has not received a salary raise or bonus since.
22In 1998, Ms. Elaine Okuno-Lonetto was the company's human resource manager. She testified that Hoyte & Associates was hired because the company suspected certain employees of engaging in inappropriate behaviour in the workplace after receiving allegations from one of its employees. Hoyte & Associates was given a list of all employees on the afternoon shift, including Mr. Cave, and was told to monitor all of them for activities such as absenteeism, leaving the workplace, personal activities during work hours, not following orders, intimidation, inappropriate language, and other improper behaviour. Mr. Cave was also to be observed.
23Ms. Okuno-Lonetto stated that the kind of behaviour suspected of the claimants (e.g. extended breaks, telephone calls, use of television and radio, reading the newspaper, etc.) was not permitted by the company. She stated that the company does not have production quotas because it is primarily concerned with the quality of its products, which are made to very fine tolerances. She stated that an automatic welding machine must not be left alone while operational because its vibration can cause it to go off-kilter, thus producing rejects.
24Ms. Okuno-Lonetto stated that Mr. Cave had not told the company about what was going on during the afternoon shift in respect of the claimants. She explained that Mr. Cave had no authority to discipline employees. Mr. Cave reported to Mr. Nishimura, who would consult her about disciplinary matters.
25Ms. Okuno-Lonetto stated that after receiving the private investigation reports dated May 23 and 28, 1998, the company decided to interview the claimants and Mr. Cave. The company engaged the services of Andy Redmond, a human resource consultant.
26Ms. Okuno-Lonetto and Mr. Redmond interviewed John Cave, Tony Trinh and Cuong Giang on June 4, 1998, one at a time. Hung Giang was interviewed on June 5, 1998. At each interview, the contents of the investigator's report was put to the interviewee. She stated that each generally denied the alleged conduct at the initial stage of the interview but eventually admitted it. She stated that Cuong Giang was the quietest of the three claimants and did not offer excuses. Tony Trinh mentioned that some of his personal calls were to call home to check on his daughter, and that John Cave was aware that he used the radio during work. Ms. Okuno-Lonetto stated that she found Hung Giang belligerent and rude at the interview. She stated that he swore, and had a threatening manner toward Mr. Redmond. She stated that she found him "scary" and that this was surprising because she had no reason to expect this kind of behaviour from him. She stated that John Cave initially denied, then admitted, not following instructions and that he told Ms. Okuno-Lonetto and Mr. Redmond that he was afraid of the claimants.
27The claimants were suspended immediately without pay, and were eventually terminated by letter dated July 17, 1998. John Cave was demoted. All of his supervisory duties were taken away except his lead hand responsibilities. His salary was red-circled, and the company intends to return him to the production line.
28Ms. Okuno-Lonetto also testified about the warning letters given to Cuong Giang and Hung Giang. These letters are dated October 30, 1997 and were signed by Ms. Okuno-Lonetto, Mr. Nishimura and Mr. Okuno (President). The letter to Cuong Giang states as follows:
Dear Cuong Giang
We are writing to inform you that your attendence record has been extremely unsatisfactory with a history of lateness and early leaves and absenteeism. It has caused an unreliable and disruptive production schedule. Kaz Nishimura, Plant manager, spoke with you about this matter as well as other disruptive behaviors. As you know, we have posted on the company bulletin board, notices which address the company position on horseplay and personal telephone calls. We will not tolerate this behavior as it poses production and safety problems. The plant manager checked the settings on the machine for speed and found that they didn't differ from the day to the night shift. So there is no excuse for the lack of production.
This is a written warning. We expect this behavior to be corrected and reflect in your productivity. All personel calls are to be limited to to lunch and break times only. Attendence must be improved; and any horseplay will not be tolerated as it poses a severe safety and production problem.
Should you require any further information, please address them to management.
29The letter to Hung Giang states as follows:
Dear The Hung Giang
We re writing to inform you that your attendence record has been extremely unsatisfactory with a history of lateness and early leaves. It has caused an unreliable and disruptive production schedule. Kaz Nishimura, Plant manager, Plant Manager (sic) spoke with you on Wed. Aug. 6th 1997 about the company's concern with this matter as well as other disruptive behaviors. As you know we ahave (sic) posted on the company bulletin board, notices which address the company position on personal calls and horseplay. We will not tolerate this behavior as it poses production and safety problems. The plant manager spoke to you about the constant calls and fooling around which has caused lower production and safety problems. The plant manager checked the speed settings for your shift as compared to the dayshift and found that the settings were the same. He did so as you had said that that was the reason for your lack of production.
This is a written warning and we expect these problems to be corrected immediately. Your attendence must be corrected as we have (sic) given you warnings before. We expect all personal calls to be limited to lunch and break times only. And the horeseplay must stop immediately as it poses a severe safety and production problem.
Should you require any furhter (sic) information, pleases address them to management.
30Ms. Okuno-Lonetto stated that the warning letters were placed in envelopes and that John Cave was told to deliver the envelopes to Hung Giang and Cuong Giang. Mr. Cave was told at the time that he was to monitor everyone on the shift. Ms. Okuno-Lonetto stated that Mr. Cave told her that he delivered the envelopes as instructed.
31Ms. Okuno-Lonetto stated that she was not aware if there were any problems concerning production by the responding parties. She was not aware of any damage having been caused by them. She was not aware of any other warning letters having been given to Hung Giang or Cuong Giang. She was not aware of any warning letter having been given to Tony Trinh.
32Mr. Cave was recalled to testify. He recalled being told to deliver the aforementioned envelopes to Hung Giang and Cuong Giang. He did not see the contents of the envelopes. He delivered the envelopes in the lunch room. He stated that one of the Giang brothers read the letter and ripped it in half and that he reported this to Ms. Okuno-Lonetto. He could not recall who ripped the letter, or the date on which he delivered the envelopes.
33The claimants testified. None of them is fluent in the English language and on occasion they spoke through a sworn interpreter.
34Tony Trinh testified that he was hired by All Metal in 1990 to work the night shift. He stated that in 1993 or 1994 he took sick leave and was diagnosed as having Hepatitis B. He was taking medication and had to relax at work. He stated that he had a good work record at All Metal, had not broken any machines and had not received any warning letter. He stated that he was not given a chance to talk to Elaine Okuno-Lonetto between the day of the interview on June 4, 1998 and the day he received his termination letter.
35Tony Trinh generally disputes the contents of the private investigator's reports. He stated that he had listened to a radio at his machine since he was hired. He denied smoking outside other than during break time or lunch time. He denied playing "Pro-Line" or watching television during working hours. He stated that he made personal telephone calls from work only for emergencies, for example, when his daughter was sick. He admitted that it would be wrong to make personal calls other than for emergencies. He disputed allegations that he extended his break time, except when he took his medication. He agreed that it would have been wrong to extend his breaks or to stop work in order to smoke, read the newspaper or listen to the radio. He denied seeing Hung Giang watching television during work hours.
36Hung Giang testified that he started at All Metal in 1986, shortly after coming to Canada. He stated that during his employment, he always made a quality product. He denied ever having done anything wrong to the company. He was very thankful to "Elaine" for giving him a start on life in Canada. He found her difficult to contact because she was not always at the plant. He stated that he never saw the warning letter allegedly delivered by John Cave. He denied ever putting the television on his welding machine. He stated that he watched television in the lunchroom and no one ever told him not to. He denied watching television "all night". He agreed that watching television during working hours (i.e. not on break or lunch) would be wrong. He agreed that he occasionally used the telephone for personal calls. He would ask John Cave to use the phone, and John Cave would unlock his office to allow him access to the phone. He denied having punched his brother's time card, but admitted that this would be wrong. He denied smoking inside the plant, which he admitted would be wrong, but admitted that he would sometimes light his cigarette inside just before exiting. He stated that employees take their lunch in two locations in the plant, and noted that Peter Hughes failed to report on activities at the other lunch location. He stated that John Cave could see his workstation from his (Mr. Cave's) office. The television that is used in the lunchroom was left to the employees by a previous employee. Hung Giang stated that he takes care of it. Sometimes it is stored on top of a locker and sometimes in his car. He denied leaving his machine running unattended. He agreed that reading the newspaper during work time would be wrong, and that it would also be wrong to stop work to listen to the radio. He also stated that it would be wrong to extend his break time or to leave work before the buzzer at the end of shift.
37Cuong Giang testified that he started work with All Metal in 1986 and was thankful for being given a job. He stated that he did not understand why he was called for an interview on June 4, 1998, He stated that the gentleman at the interview asked many questions and that he was not told who the gentleman was. Mr. Giang stated that he became afraid for his job at the interview, and asked for "one chance". In the days following the interview, not having heard from the company, he tried to contact Ms. Okuno-Lonetto to no avail. On one occasion she hung up the phone on him.
38Cuong Giang stated that John Cave's office was locked after a courier made a long distance call from it. Mr. Cave would let him use the phone and would enter the phone number for him. He recalled that about one month before he was terminated, "Kaz" called him into the office and "gave him shit" concerning his low production on the previous night. "Kaz" told him he would be fired "if he left his machine again". Mr. Giang stated that production was down on that particular night because his machine was not working.
39Cuong Giang admitted that he made personal phone calls for emergency purposes, for example when his son was sick. He denied watching television during work time, but did watch it during breaks or lunch time. He stated that he only smoked outside, during breaks. He has no recollection of meeting Peter Hughes. He admitted that extending break time or lunch time, smoking during work hours, and punching another person's time card would all be wrong, although he denied this conduct. He denied ever receiving a warning letter, either through John Cave or otherwise.
Submissions
40Counsel for the company submits that the claimants are not entitled to be paid termination pay or severance pay. Counsel submits that the claimants were guilty of wilful misconduct or neglect of duty that was not condoned by the company. He states that their behaviour was intentional and notes that, with the exception of making personal telephone calls, the claimants admitted that such behaviour, if committed, would be wrong.
41Counsel submits that inaction by John Cave should not be interpreted as condonation by the company. The company admits that Mr. Cave was a poor supervisor. The company cannot be said to have condoned misconduct or neglect of duty when its own supervisor was also guilty of misconduct or neglect. Counsel states that the company acted immediately upon learning of the inappropriate behaviour. In addition, warning letters had been given to Cuong Giang and Hung Giang.
42Counsel notes that the claimants admitted their behaviour to the employment standards officer and in their interview with Ms. Okuno-Lonetto and Mr. Redmond.
43Counsel submits that according to Mr. Hughes' observations over five shifts, Cuong Giang failed to work a total of 2 hours and 5 minutes of time when he was required to be working. Hung Giang failed to work a total of 5 hours and 10 minutes when he was required to be working, and, in addition, he punched his brother's time card. Tony Trinh failed to work a total of 2 hours and 5 minutes when he was required to be working.
44Counsel for the Ministry of Labour sees things quite differently. Counsel referred the Board to Superior Propane Inc.(Re) August 13, 1988, (Haefling) E.S.C 2364 and submits that the company has not satisfied the test of misconduct as set out in that decision. Counsel asserts that the claimants merely "slacked off". Counsel submits that there is no evidence that they interfered with the employer's business or production, or that any products were rejected because of their conduct. According to the company's own calculations based on Mr. Hughes' report, counsel submits they "slacked off" about 30 to 45 minutes per shift. Counsel further submits that there is no evidence that the complainants were told that their conduct was not acceptable and could result in termination. Counsel submits that an employer has an obligation to explain that conduct is unacceptable and this was not done. Counsel notes that no attempt was made to explain the warning letters and that the warning letters do not mention any consequence of continuing the alleged misconduct. Counsel submits that the fact that Mr. Cave ignored the conduct of the claimants amounts to condonation by the company.
45Counsel for the Ministry of Labour urged the Board to apply the test for wilful misconduct or neglect found in Neilson (William)(Re) September 22, 1980 (Bigelow) E.S.C 859 as quoted in Superior Propane (supra). That test contains the following criteria:
(a) The act or omission complained of must have been of such a nature as to substantially interfere with the employer's business AND must have amounted to a repudiation of the employment contract.
(b) The act or omission must have been wilful in the sense that the employee must have appreciated its consequences to the employer.
(c) There must have been several occurrences of the act complained of or of acts of a similar nature; one isolated occurrence is not sufficient.
(d) The employer must have explained to the employee after each occurrence that his conduct was not acceptable and if continued would result in termination.
(e) Subsequent to the warnings there must have been a culminating occurrence which was not condoned by the employer and which resulted in the termination.
46Counsel for the company argues that this is not the correct test, and notes that it was not followed in Superior Propane. Counsel submits that the requirement in the William Neilson test that the act or omission must substantially interfere with the employer's business is wrong and that the employment standards officer in the present matter was incorrect in stating that wilful misconduct requires that there must be harm to the employer.
47Counsel for the company referred the Board, instead, to Johnvince Foods Ltd. [1996] O.E.S.A.D. No.195 where Referee Palumbo stated:
In my view, the leading definition of wilful misconduct, disobedience and wilful neglect, is contained in Referee Brown's decision in The Aylmer Express Ltd. (November 14, 1985) E.S. 1981, wherein at page 8 he states:
The 'misconduct' or 'neglect of duty' referred to in the Act is preceded by the term 'wilful'. Therefore, it is not sufficient merely to show that an employee was indifferent, casual, thoughtless or neglectful in the performance of, or in the omission to perform, his or her duties or responsibilities. These acts or omissions must be the product of some deliberate or intentional act. The employee must consciously and deliberately engage in some positive act of misconduct or deliberately refrain from performing duties or responsibilities that he or she was required to perform . . . .
48Tony Trinh submits that the claimants were not cheating the company. He states that they were dismissed without reason. Cuong Giang submits that the claimants should have been given a warning before their dismissal. He denies harming the company.
Decision
49The first issue before the Board is whether or not the conduct or behaviour of any of the claimants was wilful misconduct, disobedience or wilful neglect of duty. The second issue is whether the behaviour was condoned by the company.
50The Board finds that, generally speaking, the claimants did engage in the conduct reported by Peter Hughes during the five afternoon shifts that he observed. It is possible that some of the claimants' telephone calls were for genuine personal emergencies. It is also likely that other telephone calls were not made for emergencies and were made during working hours and not during a break. I also find that the claimants expanded their break time and lunch time without permission. I find that Hung Giang watched television during work hours either at his machine or in the lunch room. Hung Giang operated an automatic machine and his opportunity to watch television was greater than was the case with the other claimants. Leaving the machine running while unattended had the potential for a serious mishap, although none is alleged to have happened involving Hung Giang.
51It is likely that Hung Giang punched Cuong Giang's time card. However, the facts do not show any attempt to mislead the company in this respect by registering false time. Cuong Giang was standing close by; he could not be bothered to punch his own card.
52John Cave's recollection of events concerning the claimants was extraordinarily vague. Mr. Cave would have the Board believe that he was unaware of much of the inappropriate behaviour observed by Mr. Hughes. I find this less than credible, even allowing for the passage of time between May, 1998 and the present. Mr. Cave's office was on the plant floor and he had a view of at least some of the machines. He occasionally walked around the floor. Other than one incident in which Hung Giang apparently watched the television behind some form of obstruction, there is no evidence that the claimants made any effort to hide their behaviour from Mr.Cave.
53Mr. Cave could not identify with any precision any incident in which he reported the claimants' behaviour to Mr. Nishimura. He thinks he may have reported some incidents. There is no evidence that he told the claimants that their inappropriate behaviour was being reported. There is no evidence as to what Mr. Nishimura did upon receiving Mr. Cave's verbal reports. Indeed, the company's position is that it did not know what was going on because Mr. Cave was not keeping it informed.
54The Board finds that the conduct of the claimants can fairly be characterized as "misconduct" or in some cases "neglect of duty". The claimants had worked for All Metal for a long time. They knew what the "buzzer" at break time signified. They knew it was dangerous to smoke inside the plant. They understood that working hours were supposed to be used to produce brake shoes or attend to other duties, and not to read the newspaper, watch television or make phone calls. Overall, it is clear that Hung Giang was more frequently guilty of misconduct or neglect than Tony Trinh or Cuong Giang. In fact, the Hoyte & Associate's reports state more than once that Tony Trinh and Cuong Giang stayed at their machines during working hours. (Cuong Giang seems by and large to have obeyed Mr. Nishimura's alleged direction "not to leave his machine".) The company's allegations of misconduct or neglect do not include allegations that the claimants harmed the company.
55Having found that the claimants' behaviour constituted misconduct or neglect of duty, the issue for the Board becomes whether the misconduct or neglect of duty was "wilful".
56In the Board's view, the term "wilful", as found in clause 57(10)(c) and clause 58(6)(c) of the Act, requires that the misconduct or neglect of duty must be something more than merely "intentional". In these provisions, misconduct and neglect of duty are presumed to be intentional because one cannot reasonably assume that the Legislature intended to deprive persons of notice of termination or severance pay as a result of accidental or inadvertent conduct. In other words, the use of the term "wilful" would have been superfluous if the only meaning intended to be conveyed is that misconduct or neglect of duty must be "intentional". If this is true, what further meaning does "wilful" add? At what point does misconduct or neglect of duty become "wilful"?
57Counsel for the applicant emphasizes that the claimants knew that their behaviour was "wrong". However, the conduct of these claimants cannot be described as "wilful" merely because they knew it was wrong. The test is whether they had a genuine understanding of the possible disciplinary consequences of their behaviour, and, having that understanding, nevertheless engaged in the behaviour.
58The Board finds that the misconduct and neglect of duty of the claimants was not "wilful". I am satisfied that the claimants did not understand that their behaviour might have disciplinary consequences. The claimants knew their conduct was "wrong" in the sense that the company would disapprove of it. But they did not know, nor could they reasonably be expected to know, how wrong their conduct was or that the company would discipline them. There is no evidence that a representative of the company ever clearly told any of the claimants: "This kind of behaviour may result in discipline or dismissal", and the Board cannot reasonably infer that the claimants had this understanding. Thus, while there are doubtless many situtions in which an employee should implicitly understand that his or her wrongful behaviour will invite discipline or dismissal, this is not the case with these claimants.
59The company appears not to have followed commonplace human resource practices that are intended to protect both the company and its employees. No records of prior discipline were produced by the company in respect of any of the claimants, other than the two warning letters. Furthermore, there is no evidence that the claimants were given written rules of conduct, or performance appraisals, during the course of their employment. The Board heard no evidence about monthly staff meetings or similar measures commonly used to discuss and reinforce plant rules. No copies of postings of work rules were produced.
60Despite the fact that Mr. Cave did not have the authority to mete out discipline, he was nevertheless the company's representative. To the claimants, Mr. Cave was "management". The claimants did not have the duty to ascertain that their supervisor was incompetent and therefore not the "real face" of the company. It is evident from Mr. Hughes' testimony that Mr. Cave largely ignored what the claimants were doing. This formed the basis of the claimants' understanding of the lack of consequence of their own wrongful conduct. The Board was left with the distinct impression that the claimants believed the company did not particularly care about their behaviour as long as they produced the required quantity and quality of brake shoes. Mr. Cave's poor management could only have reinforced this impression. It is evident from their testimony that each of the claimants was completely surprised at his June, 1998, interview with Ms. Okuno-Lonetto and Mr. Redmond.
61Assuming that Hung Giang and Cuong Giang did get the warning letters that Mr. Cave delivered to them, there was nothing in those letters to inform them about what would happen to them if they did not heed the warning. The warning was made in October, 1997, over six months before the May, 1998 investigation. The warnings related to lack of production, absenteeism, lateness and horseplay. The company did not explain to the Giang brothers the meaning and significance of the warning letters, despite their obvious weakness in the English language. Could they read between the lines, when they were barely in a position to read the lines themselves? The letters were simply delivered. There was apparently no follow-up by the persons who wrote the letters (and who could mete out discipline if warranted) to see if there was any improvement.
62I agree with counsel for the applicant, however, that the Employment Standards Officer was not correct in stating that the company is required to show that the claimants intended to harm the company or did harm the company. That may be relevant in other fact situations, but it is not a consideration in the present application.
63In view of the Board's finding, it is unnecessary to decide whether the claimants' behaviour was condoned, i.e. whether the company saw behaviour that constituted wilful misconduct or neglect of duty and failed to respond with appropriate and timely disciplinary measures.
64The Board is satisfied that the exceptions in clause 57(10)(c) and clause 58(6)(c) do not apply and that the claimants are entitled to termination pay and severance pay.
Disposition:
65The application for review is dismissed.
66The Director of Employment Standards shall pay out the money held in trust as follows:
Tony Trinh $ 8,996.94
Hung Giang $12,069.58
Cuong Giang $12,564.68
Government of Ontario Consolidated Revenue Fund $ 3,363.03
Interest accrued on the money in trust is to be paid to the above parties in proportion to the amounts paid out.
"Anthony Brown"
for the Board