The Business Depot Ltd. v. Steve Hennige and Ministry of Labour
File No.: 0591-99-ES Employment Practices Branch File No.: 13002445 Date: April 14, 2000
Before: Marilyn Silverman, Vice-Chair
Appearances: Barry Jones for the applicant; no one appearing for the responding employee and the Ministry of Labour;
Decision of the Board
1This is an employer appeal filed pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E.14, as amended ('the Act') against Order to Pay No. 52603 issued by an Employment Standards Officer on December 3, 1998.
2The matter was scheduled to be heard in Thunder Bay at 9:30 a.m. on February 15, 2000. By letter dated February 11, 2000 the Ministry of Labour advised the Board that it would not be sending a representative to the hearing. In that letter the Ministry of Labour advised that it would be taking no position as to the facts adduced at the hearing but directed the Board’s attention to the relevant statutory provisions and case law in respect of the exemption from the obligation to pay termination pay where an employee is guilty of “wilful misconduct”.
3There was no appearance by the responding employee (Mr. Hennige) at the appointed time for the hearing. The matter was delayed beyond half an hour in case of a late arrival. Notwithstanding the delay, there was still no appearance by Mr. Hennige when the matter was to be heard. The hearing then proceeded in the absence of Mr. Hennige.
4The applicant employer relies on the concept of wilful misconduct in support of its case. Section 57 (10)(c) of the Act provides the following exemption to the obligation to pay termination pay:
- (10) 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;
5The applicant called Mr. Roman Grivicic, the assistant sales manager of its store. Mr. Grivicic gave evidence that he was Mr. Hennige’s superior and was informed by Ms. Eileeen Dunleavy, the sales manager, that she discovered that Mr. Hennige had sent personal faxes using the company’s fax machine. Mr. Grivicic attended a meeting on October 2, 1998 with Mr. Hennige and Ms. Dunleavy in which Mr. Hennige admitted sending the faxes and not paying for them. According to Mr. Grivicic, Ms. Dunleavy told Mr. Hennige that the applicant employer considered such actions theft and terminated his employment.
6The applicant employer through the evidence of Mr. Barry Jones, general manager, provided a copy of the fax sheets in question as well as a copy of the company’s orientation manual. The faxes had been sent in June and July of 1998; some 4 months prior to being discovered. They were discovered in something called a “business file” which Mr. Jones testified is a filing cabinet where documents are stored.
7Mr. Jones referred me to the provision in the orientation manual upon which the company relied in terminating Mr. Hennige’s employment. Under the heading of “some causes of dismissal” is the “unauthorized or personal use of Business Depot/Bureau en Gros/Staples property.” Further the manual states, “Associates who are unable to comply with our standards of conduct may be subject to corrective action up to and including dismissal. Corrective action is administered fairly and equally, not to inflict punishment but to correct problems so every Associate can work in a safe and secure environment.”
8The applicant employer relies on the conduct described and argues it amounts to wilful misconduct which would exempt the payment of termination pay. It is the employer’s position that this conduct amounted to theft. I am unable to accept that the two minor isolated incidents described herein were sufficient to amount to wilful misconduct such as to deprive the employee of termination pay in these circumstances. I am of the view that the there could have been consequences meted out short of discharge that were consistent with the orientation manual and that brought home to Mr. Hennige the fact that his conduct was not acceptable to the employer. However, a minor breach of this rule which was not discovered until well after the fact is not so egregious as to reasonably have been expected to result in the penalty of discharge. This is not what I could consider to fall within the category of wilful misconduct as contemplated by the Act. The termination pay is therefore properly owing.
9This application is therefore dismissed.
“Marilyn Silverman”
for the Board