0022-00-ES Acorn Marketing Group o/a Ontario High Tensile Fencing, Applicant v. Darren Hetherington and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 52006214
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Michael Haliburton for the applicant; no one appearing for the responding employee; Karima Chatur for the Ministry.
DECISION OF THE BOARD; October 26, 2000
This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, C. F. 14, as amended (the "ESA") for review of an Order to Pay filed by the applicant, Acorn Marketing Group o/a Ontario High Tensile Fencing (the "Company"). The Order to Pay in issue relates to one week's pay found to be owing by the Company to its former employee, Darren Hetherington, on account of termination pay.
The hearing in this matter was scheduled for Thursday, October 5, 2000, at 9:30 a.m. At that time, neither Mr. Hetherington nor a representative of Mr. Hetherington appeared at the hearing. The Board waited the normal thirty (30) minutes prior to convening the hearing to entertain the applicant's request that the Order to Pay be rescinded.
The applicant takes the position that no termination pay is owing to Mr. Hetherington under the terms of section 57 of the ESA, since:
(1) Mr. Hetherington was employed for precisely three (3) months; and
(2) Mr. Hetherington's employment was terminated due to wilful misconduct within the meaning of the exception to the requirement to provide termination pay contained in subsection 57(10) of the ESA.
Facts
The Board heard evidence from one witness, Mr. Michael Haliburton, who gave evidence on behalf of the Company. His testimony may be briefly summarized as follows.
The Company employed Mr. Hetherington, the claimant, from February 17, 1999 to May 17, 1999 to assist in its fencing and forestry operations. More specifically, the claimant commenced employment at or around noon on February 17, 1999 and was advised, precisely three months later, at or around noon on May 17, 1999, that his employment with the Company was terminated effective immediately.
Mr. Haliburton testified that at the time of hire he advised Mr. Hetherington that he would be employed for a ninety (90) day period after which both parties would decide whether or not to continue. Given that the Company did not take the position that the claimant was employed on a fixed term contract, the Board understands this reference to a ninety (90) day period to refer simply to a probationary period.
The Company trained Mr Hetherington to use the mechanical equipment employed to thin the pine plantations. This equipment included a mechanical harvester, a mechanical forwarder/porter and a mechanical peeler. Mr. Haliburton testified that initially Mr. Hetherington proved to be a conscientious employee, but that he appeared to become progressively more complacent as time went on. The result of this was that the Company experienced an increasing amount of damage to its equipment due its operation by Mr. Hetherington. Mr. Haliburton testified that he verbally advised the claimant on various occasions to operate the equipment more responsibly and that he specifically advised Mr. Hetherington not to drive a rubber tire tractor over the "rock fence rows" even if they were covered with snow.
Mr. Haliburton cited two incidents of reckless behaviour involving the claimant. The first incident of reckless behaviour causing damage to Company equipment occurred in or about mid-April 1999 at which time Mr. Hetherington operated the tractor with both the forks and a trailer hitch hooked up at the same time. He did so despite the fact that Mr. Haliburton had previously warned him not to operate the equipment with both items hooked up. Mr. Haliburton stated that this was a one-time occurrence and that at the time his response to the incident was simply to say to the claimant "I should have reminded you again". The second incident of reckless behaviour cited occurred when the claimant put a machine in park while it was still moving.
Although Mr. Haliburton did not provide the claimant with any formal written warnings concerning his performance, he states that he verbally warned the claimant on or about May 3, 1999 that his performance required improvement. At that time, Mr. Haliburton called the claimant and three (3) other employees into a meeting to discuss his concerns with their respective performance, which he identified as:
their careless and reckless operation of the equipment;
the fact that they left tools out overnight;
the fact that they left the work area in a state of disarray with litter lying around; and
the fact that there had been excessive damage to equipment which no one would admit to having caused. In this respect, Mr. Haliburton noted that several people use the same equipment in the course of a day and therefore it is not always clear who has done damage on any given occasion.
At the meeting of May 3,1999, Mr. Haliburton also told all four employees words to the effect that they had better clean up their act or they would be "going down the road". Although he could not recall the exact words used, he made clear to them that their employment would be terminated if their performance did not improve.
Over the following two weeks, Mr. Haliburton noticed an improvement in the performance of the other three employees, but he did not notice any improvement in Mr. Hetherington's performance. In fact, Mr. Haliburton states that Mr. Hetherington caused damage during his last week of employment to one of the tractor's tires, which cost a thousand ($1,000) dollars to repair.
Mr. Haliburton made the decision to terminate the claimant's employment on Saturday, May 15, 1999 following a review of the claimant's daily reports and his observation of a seventeen year old farm boy's work that day. Mr. Haliburton found that the seventeen year old farm boy had done a far superior job and had pulled out more wood from the peeling area than Mr. Hetherington had in the entire previous week. In addition, when Mr. Haliburton reviewed the claimant's daily reports, he noted that the claimant had reported that the "park" on the mechanical forwarder was not working. When Mr. Haliburton went to investigate, he discovered that the "park pin" in the transmission had been broken.
Mr. Haliburton attributed this damage to Mr. Hetherington's misuse of the equipment, which he states was also evident from the black tire marks and chunks of rubber Mr. Haliburton discovered that day during a walk in the bush. In this respect, Mr. Haliburton testified that he had taken a walk in the bush to see what work had to be done the following week. At that time, he discovered black tire marks and chunks of rubber from the tractor tires. Since only Mr. Hetherington had been working, Mr. Haliburton concluded that Mr. Hetherington was the one who had caused that damage by driving over the rock fence rows contrary to his instructions.
Mr. Haliburton communicated his decision to terminate Mr. Hetherington's employment at or around noon on May 17, 1999. He states that prior to doing so he researched the Company's obligations to the claimant under the ESA by looking first on the internet. Later, he called the Ministry of Labour in the morning of May 17, 1999, at which time he was informed that no termination pay was required, since the employee in question had only been employed for three months. Mr. Haliburton testified that if the representative of the Ministry of Labour had told him at the time that the employee in question was entitled to one week's pay, the Company would simply have paid it.
Decision
The first issue to be determined is whether or not the employer is obliged to provide termination pay pursuant to the provisions of subsection 57(1) of the ESA in the circumstances of this case given the length of the claimant's employment. The employer argues that no termination pay is required since the claimant in this case was employed for precisely three (3) months, being from approximately noon on February 17, 1999 to approximately noon on May 17, 1999. The relevant portions of section 57 read as follows:
(1) Notice of Termination No employer shall terminate the employment of an employee who has been employed for three months or more unless the employer gives,
(a).......... one weeks notice in writing to the employee if his or her period of employment is less than one year; …
(14) Payments where employment terminated without notice - Where the employment of an employee is terminated contrary to this section,
(a).......... the employer shall pay termination pay in an amount equal to the wages that the employee would have been entitled to receive at his or her regular rate for a regular non-overtime work week for the period of notice prescribed by subsection (1) or (2), and any wages to which the employee is entitled;
(b).......... the employer shall pay during the period of notice prescribed by subsection (1) or (2) those contributions to be made with respect to a fund, plan or arrangement to which Part X applies in order to maintain the benefits to which the employee is entitled during the period of notice; and
(c).......... the employee shall be deemed during the period of notice prescribed by subsection (1) or (2) to be actively employed on the same terms and conditions in existence during his or her employment for the purpose of entitlement to benefits under a plan, fund or arrangement to which Part X applies.
Section 57 of the ESA requires the employer to provide written notice of termination or pay in lieu of notice to "an employee who has been employed for three months or more". No notice of termination or pay in lieu thereof is required where the employee has been employed for less than three (3) months. In the circumstances of the present case, the claimant was employed for precisely three (3) months and is therefore entitled to one (1) week's notice of termination or pay in lieu therefore assuming that the exceptions contained in subsection 57(10) of the ESA do not apply.
As previously noted, the Company also submits that the exception contained in subsection 57(l0)(c) of the ESA applies, since the claimant “has been guilty of wilful misconduct” within the meaning of the exception contained in subsection 57 (10) (c) of the ESA, which reads as follows:
...
(10) Exceptions — Subsections (1) and (2) do not apply to,
(c) an employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer;
- In order to establish that the employee's conduct was "wilful", the employer must establish that the claimant's conduct was intentional or reckless in the sense that the claimant appreciated its consequences to the employer. In The Aylmer Express Ltd. (October 31, 1985, Referee Raymond E. Brown, at pp. 8-9), the referee explained as follows:
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 omissions to perform, his or her duties or responsibilities. These acts or omission to perform 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. As I previously stated in Argo Cleaners (Windsor) Inc., July 10, 1985 at pp. 10-11:
Wilful misconduct for the purposes of the statutes requires some deliberate or intentional act on the part of an employee. It is not enough to show that the employee failed to perform the duties he was required to perform or performed them incompetently if it is not also shown that his acts or omissions were the product of deliberation and design on his part. Thus acts which are done carelessly, thoughtlessly, heedlessly or inadvertently are not acts of wilful misconduct even if they are done repetitively and may have been the basis for summary dismissal at common law.
In Post Road Health & Diet Inc. (May 27. 1998, Referee Gail Misra, at p.7), the Referee also noted that the Company bears the onus of proving that an employee is guilty of wilful misconduct and that: “[a]n employee must be notified in advance that a breach of a company rule, or repetition of some unacceptable conduct, will result in termination. Thus, an employee must know in advance that his or her conduct will result in termination in order to support a claim of wilful misconduct”.
In the circumstances of the present case, Mr. Haliburton's testimony is that the claimant started out as a conscientious employee, but that he became increasingly careless in the performance of his work such that damage to the Company's equipment resulted. As previously indicated, Mr. Haliburton cited two incidents in which Mr. Hetherington is said to have operated Company equipment recklessly. The first incident occurred in April 1999 when Mr. Hetherington operated the tractor with two attachments connected despite having been told that he should not do so and a second incident in which Mr. Hetherington put a machine in park while it was still moving. The claimant, together with three other employees, were verbally warned about their careless and reckless operation of equipment on or about May 3, 1999.
Approximately two weeks later, Mr. Haliburton made the decision to terminate the claimant's employment. He states that he did so as a result of his observation of a seventeen (17) year old farm boy, who, he says, did a far superior job than the claimant pulling out wood in the peeling area. Mr. Haliburton also decided to terminate the claimant's employment because of the damage caused to Company equipment the previous week. In this respect, Mr. Haliburton cited a one thousand ($1,000) repair required to the tractor tires incurred that week as well as a broken "park pin". He attributed the damage caused to the claimant's reckless operation of Company equipment based on his observations during a walk in the bush on Saturday, May 15, 1999.
While the Board accepts Mr. Haliburton's evidence that the seventeen (17) year old farm boy did a far superior job than the claimant, the mere fact that another worker is more productive or efficient is not sufficient to establish "wilful misconduct" within the meaning of the ESA. In addition, the Board is not satisfied based on the evidence before it that that the claimant recklessly or deliberately drove over "rock fence rows" causing damage to Company equipment as alleged. There is no evidence, for example, that anyone observed Mr. Hetherington driving over "rock fence rows" in a manner that made it clear that he had seen them and therefore that he was doing so deliberately or recklessly contrary to Mr. Haliburton's instructions. Instead, Mr. Haliburton simply inferred that the claimant had done so based on Mr. Haliburton's observation of tire marks and chunks of rubber from tractor tires in the bush.
While it is certainly possible that the claimant wilfully drove over “rock fence rows”, the evidence falls short of establishing on a balance of probabilities that he did so. There is, for example, no evidence before the Board to indicate how long the tire marks and chunks of tire had been in the bush where the claimant had recently been working. There is also no evidence before it about where these tire marks and chunks of tire were located such that the Board should conclude that they resulted from someone (be it the claimant or someone else) driving over "rock fence rows" contrary to Company policy. On the other hand, the evidence before the Board is that, as recently as two weeks earlier, three (3) other Company employees who all operated the same equipment as the claimant were considered by Mr. Haliburton to be operating Company equipment negligently and recklessly.
In addition, the mere fact that the Company incurred repair costs associated with repairing tractor tires or that there was a broken "park pin" in the mechanical forwarder does not establish that the claimant was wilfully operating Company equipment contrary to instructions. That damage could have been the result of the deliberate or reckless operation of the equipment by either the claimant or another employee, or the result of an accident or inadvertence by the claimant or another employee or simply the result of normal wear and tear.
Having carefully considered Mr. Haliburton's evidence, the Board is not persuaded that the evidence before it establishes that the claimant operated Company equipment in a manner that was contrary to Mr. Haliburton's instructions as alleged following the warning given on May 3, 1999. In all of the circumstances, the Board concludes that the Company has not met its onus of proving that the claimant “has been guilty of wilful misconduct" within the meaning of subsection 57(l0)(c) of the Act as alleged. The Board therefore finds that the claimant is entitled to one week’s pay in lieu of notice of termination pursuant to subsection 57(1) of the ESA.
The applicant does not dispute that the amount assessed in the Order to Pay representing one week’s termination pay. The applicant however asks that the Board exercise its discretion to order reimbursement of the statutory administration costs assessed in the Order to Pay regardless of the outcome of the application. In support of its position, Mr. Haliburton testified that the Company would simply have paid Mr. Hetherington one week’s pay in lieu of notice had it been told by a representative of the Ministry on May 17, 1999 that it was required to do so. The Ministry of Labour indicated that it did not oppose the applicant’s request and noted that the Board has the authority to order reimbursement of the administration costs regardless of the outcome of the application.
Whether or not it has the authority to do so, the Board is not satisfied that it should grant the applicant’s request to reimburse the statutory administration costs in the circumstances of this case. While Mr. Haliburton says that he would have paid termination pay to Mr. Hetherington if he had been informed of the requirement to do so when he first contacted the Ministry, the Board notes that he chose not to do so prior to the issuance of the Order to Pay.
Disposition
- For the foregoing reasons, the Order to Pay is affirmed. The Board directs the Director, Employment Standards, to pay out the monies held in trust, less the administration costs, as well the interest accumulated thereon to the claimant.
“Caroline Rowan”
for the Board