3421-98-ES Barrie Communications Equipment Limited, Applicant v. Conrad Dinatale and Ministry of Labour, Responding Parties.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Laszlo Pandy for the applicant; Conrad Dinatale on his own behalf; Frank Camilleri for the Ministry of Labour.
DECISION OF THE BOARD; February 3, 2000
1This is an application for review of an order to pay (No. 47881) made by an Employment Standards Officer pursuant to the Employment Standards Act (“the Act”). The applicant is referred to as “Barrie Communications” or “the company”.
2A hearing was held on January 14, 2000.
3An Employment Standards Officer ordered Barrie Communications to pay the responding party, Mr. Dinatale, the amount of $3,945.89. This amount represents six weeks’ termination pay and vacation pay. It also includes wages owed for three hours work in the amount of $44.13 plus vacation pay; this amount is not in dispute.
4The company asserts that it should not be required to pay termination pay because the facts come within the exception in clause 57(10)(c) in that Mr. Dinatale was guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the company.
5The responding party appeared without a legal representative. The Board informed him that although he has a right to appear without a legal representative, he should be aware that a hearing is a legal proceeding and that the Board, as a neutral body, does not advise the parties.
The Facts
6The facts are relatively straightforward.
7Barrie Communications installs communications systems, including public address systems in schools and call systems in nursing homes. Mr. Dinatale worked for the company for approximately six years.
8The company’s primary allegation against Mr. Dinatale is that he was insubordinate in refusing to follow the directions of his immediate supervisor (Fred McLellan), the operations manager (Mr. Ivan Kajs) and the company president (Mr. Peter Jova), even after a warning of possible dismissal. Mr. Jova testified that if Mr. Dinatale had not been insubordinate, he would not have been terminated. This application therefore turns on the issue of insubordination, and not on the other allegations of misconduct levelled at Mr. Dinatale.
9Mr. Ivan Kajs testified for Barrie Communications. He is the company’s operations manager and a supervisor of Mr. Dinatale. According to Mr. Kajs, Mr. Dinatale was requested by Mr. Dinatale’s immediate supervisor (Fred McLellan) on Thursday June 25, 1998 to be at the company’s Barrie Office at 7:30 a.m. the following day in order to discuss the completion of a job at Wychwood Towers nursing home. Mr. Dinatale did not show up on Friday morning and Mr. Kajs paged him at 9:00 a.m. Mr. Dinatale responded to the page. He phoned Mr. Kajs and told him that he did not want to go back to work at the Wychwood site. Mr. Kajs wanted him to return to Wychwood because there was still work to be done on the nurse call system that Mr. Dinatale had installed. Mr. Kajs advised Mr. Dinatale that he had to finish the job. He told Mr. Dinatale to be at the Barrie Office at 3:00 p.m. that day (Friday) or he “may not have a job on Monday”.
10Mr. Kajs states that Mr. Dinatale did not come to the office on Friday but that he did show up at the office at 7:30 a.m. on the following Monday at which time Mr. Kajs informed him again that he was to return to the Wychwood site and that his job could be in jeopardy if he refused. Mr. Dinatale replied that he would not work at Wychwood. Mr. Kajs instructed him to be in the office on Tuesday morning (the following day) to see the company president. Mr. Dinatale then went about his service calls for the day (Monday).
11On Tuesday, June 29, 1998, Mr. Dinatale met with Peter Jova, the company president, and with Mr. Kajs. Mr. Kajs testified that, at this meeting, Mr. Dinatale steadfastly refused to the return to the Wychwood site and refused to work with Fred McLellan on any project. Mr. Kajs stated that, at the end of the meeting, Mr. Jova told Mr. Dinatale that his employment was terminated for insubordination in refusing to obey the orders of his immediate supervisor and Mr. Kajs.
12Peter Jova also testified for the company. He is the company President. He stated that Mr. Kajs told him on Monday, June 29, 1998 of the difficulties he was having with Mr. Dinatale. A meeting with Mr. Dinatale was set up for the following day. Mr. Jova testified that, at that meeting, he asked Mr. Dinatale why he would not return to Wychwood and Mr. Dinatale stated that the job was finished, that he would not go back to Wychwood, and that he would not work with Fred McLellan on any job. Mr. Jova then informed Mr. Dinatale that he was fired because of his refusal to go back to Wychwood and to obey his supervisors’ instructions. As mentioned previously, Mr. Jova testified that if Mr. Dinatale had not so refused, then he would not have been fired.
13Mr. Fred McLellan also testified. He is a project co-ordinator for the company and was Mr. Dinatale’s immediate supervisor. He stated that Mr. Dinatale failed to appear for work on the morning of Friday, June 26 despite being told to do so by Mr. McLellan, and that he also failed to show up on Friday afternoon. Barbara Kitchen also testified. She is an accounting/payroll supervisor for the company. She was present in the office when Mr. Kajs paged Mr. Dinatale on June 26th and she overheard Mr. Kajs warning Mr. Dinatale that “his job may not be there to come to”.
14Mr. Dinatale testified. He confirmed, that after being paged, he spoke with Mr. Kajs by phone on June 26. He testified that he told Mr. Kajs that he did not come into the office on June 26 because he felt he was committed to work on another job project. He also stated that he told Mr. Kajs that the Wychwood project was complete and that Mr. Kajs responded that that was not his decision to make. He confirms that he refused to go back to Wychwood. He does not recall being told by Mr. Kajs on June 26 and June 29, 1998 that his job was at risk. On Tuesday, June 30, 1998 he met with Peter Jova and told him about problems he was having working for Mr. McLellan. Although the Board was not provided with details about these problems, it appears that Mr. Dinatale differed with Mr. McLellan about how work should be performed. Mr. Kajs joined the meeting after about 10 minutes. Mr. Dinatale confirms that he was terminated at the meeting. He stated that his impression at the meeting was that Mr. Jova had already made up his mind on the termination and there was no sense discussing the matter with him.
Submissions
15The applicant submits that Mr. Dinatale was guilty of wilful misconduct or disobedience or wilful neglect of duty in that:
(i) he refused or neglected to come into the office on Friday morning (June 26, 1998) although instructed to do so by Mr. McLellan.
(ii) he refused to come into the office on Friday afternoon (June 26, 1998) although instructed to do so by Mr. Kajs.
(iii) he refused to obey his superiors’ direction to return to work at the Wychwood Towers project
(iv) he informed his superiors that he would not work with Fred McLellan at any project.
16The applicant submits that Mr. Dinatale was warned by Mr. Kajs that his job was in jeopardy if he continued to refused to follow orders. It submits that Mr. Dinatale’s conduct was not condoned by the company.
17Mr. Dinatale admits that he refused to return to the Wychwood site because, in his view, the job was complete. Mr. Dinatale denies that he was warned that his job was in jeopardy. He submits that he is entitled to termination pay.
Decision
18For the reasons which follow, the Board has decided that Mr. Dinatale is not entitled to termination pay under subsection 57(14).
19Mr. Dinatale admits that he was told by Mr. McLellan, and later by Mr. Kajs, to be at the office on June 26, 1998 and that he failed to comply with these instructions. His excuse was that he felt he should be working at another job site. The Board is satisfied on the evidence of Mr. Kajs (whom the Board found to be very credible) that Mr. Dinatale was verbally warned by Mr. Kajs that his job could be in jeopardy for refusing to follow directions.
20The Board further finds that Mr. Dinatale refused to attend a job site (Wychwood Towers) when told that he was required to do so by both Mr. Kajs and Mr. Jova. Mr. Dinatale admits to this refusal. It is evident to the Board, having heard Mr. Dinatale’s sworn evidence, that Mr. Dinatale still does not fully appreciate the right of his former employer to direct him as to what project he was to work on. It is rather obvious that, if employees of Barrie Communications were permitted to decide for themselves where they would work, the company would not be able to fulfill its contractual commitments to customers in a timely way. The Wychwood Towers nurse call system was not working properly. The company ordered Mr. Dinatale to go back and fix it. He refused to do so.
21The Board therefore finds that Mr. Dinatale wilful disobeyed the instructions of his supervisors to come to the Barrie Office and that he willfully refused to follow instructions to work at Wychwood. This amounts to wilful misconduct and disobedience under clause 57(10)(c). There is no evidence that the instructions were ambiguous or confusing. There is no evidence that Mr. Dinatale’s wilful misconduct or disobedience was condoned by the company.
22The prompt intervention by the company president, Mr. Jova, indicates to the Board how seriously the company viewed Mr. Dinatale’s conduct. The Board is satisfied that if Mr. Dinatale had indicated any willingness to return to Wychwood his employment would not have been terminated. The purpose of the meeting with Mr. Jova was to get to the bottom of the matter and explain to Mr. Dinatale what his responsibilities were.
23The Board notes that, in addition to the allegation of insubordination, the company makes other allegations about Mr. Dinatale’s conduct in the workplace. In particular it is alleged that he failed on one occasion to file bid documents in a timely fashion, that he went home early from job sites without permission, and that customers complained that he did not keep them informed about what he was doing on the job. However, based on the Mr. Jova’s evidence that Mr. Dinatale’s employment was terminated because of insubordination, it is unnecessary for the Board to deal with these allegations, which, even if assumed to be true, do not appear to amount to evidence of wilful misconduct or disobedience or wilful neglect of duty.
Disposition
24The application for review of Order to Pay No. 47881 is granted and the order is amended as indicated below. The Board hereby orders the Director to pay the following amounts from the money held in trust:
To the employer $4,294.58
This amount includes $3,750.00 calculated for termination pay and 4% vacation pay thereon. It also includes the entire administration costs ($394.58) paid by the applicant.
To the employee $45.89
This amounts represents undisputed wages owed for three hours worked, in the amount of $44.13 + 4% vacation pay.
25Any interest which has accrued on this money will be calculated and apportioned by the Director of Employment Standards.
“Anthony Brown”
for the Board