1001-00-ES 550044 Ontario Ltd. o/a The Log Cabin Trading Post, Applicant v. Nancy Acaster and Vanessa Jeffs and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 41077746

BEFORE: Stephen Raymond, Vice-Chair.

APPEARANCES: Robert B. Reid, Harry Schoenwille, Lois-Jane Shoenwille, Kara Schoenwille for the applicant; Nancy Acaster and Vanessa Jeffs for the responding party; Mircho Mirchev for the Ministry of Labour.

DECISION OF THE BOARD; May 22, 2001

1. This is an employer appeal under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the “Act”) of Order to Pay No. 57927, in the amount of $1990.80, in respect of Ms. Nancy Acaster (“Ms. Acaster”) and Ms. Nancy Jeffs (“Ms. Jeffs”). The employer, 550044 Ontario Ltd. o/a The Log Cabin Trading Post (“The Log Cabin”) takes the position that the Officer, Ms. Donna Carmel (“the Officer”) erred in awarding termination pay under the Act because Ms. Acaster and Ms. Jeffs were guilty of wilful misconduct and/or wilful neglect of duty.

2. A hearing was held on January 3, 2001. The parties were directed at the conclusion of the hearing to file written argument. That process was completed on March 2, 2001.

The Issue

3. The Log Cabin stated that Ms. Acaster and Ms. Jeffs were terminated because of (1) a conversation that they had while working in The Log Cabin in front of a customer, (2) their inattention to the customers of the store, and (3) their actions during the investigation of the conversation by the senior management of The Log Cabin. The issue to determine is whether that conduct occurred, and if it did, whether Ms. Acaster and/or Ms. Jeffs were guilty of wilful misconduct and/or wilful neglect of duty.

The Evidence

4. Ms. Acaster, Ms. Jeffs and Mrs. Schoenwille were called to testify. The customer who overheard the conversation between Ms. Acaster and Ms. Jeffs was not called to testify. The following are the facts based on the evidence that was presented.

5. The Log Cabin is a large retail outlet in Fonthill, Ontario that specializes in selling Canadian goods and artifacts. It is owned and operated by the Schoenwille family. Ms. Jeffs was the Assistant Manager. Ms. Acaster held a position of some responsibility and, unlike certain other clerks, had a master key to the store. On January 4, 2000, while the Schoenwille family was on vacation, the store was left under the supervision of Ms. Jeffs. A conversation between Ms. Jeffs and Ms. Acaster was overheard by a customer of the store and was reported to Mrs. Schoenwille upon her return from vacation by the customer. Based on the evidence given by Ms. Jeffs and Ms. Acaster, I find that Ms. Jeffs said something like “Krista thinks she’s God” (a reference to the manager of the store – Krista Sebo, daughter of the Schoenwilles - who was on leave at the time), and that Ms. Acaster said in that conversation that she was “tired of the bullshit” (referring to the actions of senior management). Ms. Jeffs was unaware that there was a customer in the store or within earshot of her conversation. Ms. Acaster was aware that there was a customer in the store and was watching the customer but did not believe the conversation would be overheard.

6. An investigation meeting was held by Mr. and Mrs. Schoenwille. All the employees who had been scheduled for work on January 4, 2000 attended with the exception of one employee. Both Ms. Jeffs and Ms. Acaster were present. The allegations of improper conduct were raised for the first time at this meeting. Ms. Jeffs and Ms. Acaster admitted that they had been the two employees who had had the conversation that was overheard by the customer, yet, they denied the specific allegations as to what had been said. A decision was made by the Schoenwilles on January 14, 2000 to terminate both employees. Ms. Acaster did work on January 15, 2000 although it was indicated that she was under close supervision on that date.

7. The Log Cabin also led evidence about the nature of the retail operation and the trust that had been given to Ms. Acaster and, in particular, to Ms. Jeffs. It was indicated that the persons working at The Log Cabin were frequently reminded of the importance of customer service and attentiveness to customers. It was felt by Mrs. Schoenwille that the actions of Ms. Jeffs and Ms. Acaster had placed them in a position in which she could no longer trust them to act appropriately in front of customers.

Decision

8. In order to not receive termination pay under the Act, the employees must be found guilty of wilful misconduct or wilful neglect of duty.

9. In All Metal Machine Specialties Ltd. [2000] O.E.S.A.D. No. 117, the Board stated that in order for an employee to be found guilty of wilful misconduct, the employer must not only show that the employee intended to perform the act of misconduct but that the employee ought to be aware that the consequences of the action would make further continuing employment unlikely. In other words, it ought to have been foreseeable that the action of the employee might lead the employer to determine that the employment relationship is severed and irreparably harmed.

10. Ms. Jeffs and Ms. Acaster had what they intended to be a private conversation on January 4, 2000 in the store. It was overheard by a customer. Ms. Jeffs was in charge of the store. The question the Board must ask itself in relation to Ms. Jeffs is whether it is wilful misconduct to make a disparaging comment about her own supervisor (Ms. Sebo) to a subordinate employee. Ms. Jeffs was unaware that there were any customers in the store. Therefore, Ms. Jeffs was not attempting in any way to undermine the reputation or economic interest of her employer. The comment to her subordinate was not a sensible thing to do but is not an action that the Board would consider wilful misconduct. The action is inappropriate and wrong, but it does not immediately threaten the viability of the employment relationship. As a result, in relation to Ms. Jeffs, the Board finds that there was not wilful misconduct pursuant to the Act.

11. The employer’s allegation of wilful neglect of duty is based on the fact that Ms. Jeffs was unaware that a customer was in the store when one was present. While this was borne out by the evidence, it is not an offence that would disentitle Ms. Jeffs to the minimum statutory termination pay. Wilful neglect of duty, like wilful misconduct, must be understood by the employee to bring the viability of the employment relationship to an end. Being inattentive to customers on one occasion is not wilful neglect of duty.

12. Finally, the Log Cabin takes the position that Ms. Jeffs was not honest and open during the investigation process. Candour and honesty are the touchstone of an employment relationship. Where it can be demonstrated that an employee has intentionally misled her employer, the Board would be quite reluctant to award termination pay. However, in this situation, the investigation was not properly handled. The employer should not investigate an incident by bringing together “all possible suspects” and demanding that it be informed as to who engaged in the wilful misconduct. An investigation should be conducted privately by way of one or more interviews. It is not surprising to the Board, from the manner in which the investigation was conducted, that Ms. Jeffs was not completely open, honest and forthcoming in her responses.

13. Ms. Acaster was not a manager. She held some responsibility in that she had a master key and was asked from time to time to open or close the store. Otherwise, she was a retail clerk. In a conversation with her assistant manager, she indicated, in relation to more senior management, that she was “fed up with the bullshit”. She knew that there was a customer in the store but did not believe the conversation could be overheard. From her perspective, her assistant manager was complaining about more senior management and Ms. Acaster indicated, (apparently in support of her own manager) that she was “fed up with the bullshit”. She cannot be said, in these circumstances, to have engaged in wilful misconduct. Her assistant manager was complaining to her and she joined in. The Board is supported in this finding by the action of the employer who permitted Ms. Acaster to work on the day following its decision to terminate her (albeit under close supervision). If the employer was of the view that it could no longer trust Ms. Acaster to act appropriately in front of its customers, it should have ensured that she would have no contact with them. It did not do so.

14. As well, there is no wilful neglect of duty on the part of Ms. Acaster. There was a customer in the store that she was aware of and watching, and who she thought was at a sufficient distance so that the conversation could not be overheard. As for her conduct during the “investigation”, the same that was said about Ms. Jeffs can be said for her. While it is unfortunate that she was not more honest and forthcoming in her responses, given the nature of the investigation, it is not surprising.

Disposition

15. The application is dismissed.

16. Accordingly, I order as follows:

(a) that the wages paid to the Director in trust in relation to this matter in the amount of $1,809.82 be disbursed along with any interest accrued on this amount as follows:

• to Ms. Acaster $ 335.93

• to Ms. Jeffs $ 1,473.89

(b) that the administration fee as set out in the Order to Pay be retained by the Government of Ontario Consolidated Revenue Fund.

“Stephen Raymond”

for the Board