1862-00-ES Timothy G. Ross, Applicant v. B. McDowell Equipment Limited and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 10004085
BEFORE: Brian McLean, Vice‑Chair.
APPEARANCES: Tim Ross on his own behalf; Kevin McDowell for B. McDowell Equipment Limited; Robert Sinding for the Ministry of the Labour.
DECISION OF THE BOARD; October 30, 2001
This is an application for review by an employee of the decision by an Employment Standards Officer not to issue an Order to Pay against the responding party employer.
The Board convened a hearing on October 11, 2001 to receive the parties’ evidence and representations concerning the application.
The applicant’s claim is for termination pay. The employer and the Ministry of Labour asserts that the applicant is not entitled to termination pay because the applicant’s employment was terminated for “willful misconduct”.
The applicant testified that he worked extremely long hours for the company. The applicant claims that on or about March 24, 2000 the company’s foreman told the applicant he was working too many hours. The applicant asked if he should go home and the foreman said that he should. The applicant testified that he went into the office and was fired.
The employer’s version of the events was substantially different. Mr. McDowell, the owner of the company, testified that he heard from a customer that the applicant, among other employees, was punching into work early and then not working. In order to confirm the customer’s story Mr. McDowell came into work much earlier then he usually did and looked for his employees who had all “punched in”. He could not find them and their toolboxes had not yet been opened. Mr. McDowell came into work early the next day and again his employees were not working, although they had punched in. Mr. McDowell then gave each of the employees a letter which advised them of their misconduct and docked them pay for the period they were not working. When the applicant received the letter he became angry and yelled and swore at Mr. McDowell for an extended period of time. Accordingly, Mr. McDowell terminated his employment.
In reply, the applicant testified that he at most said “this is bullshit” to Mr. McDowell and was certainly not abusive.
Decision
There are two issues in this application. First whose version, of the facts are the true facts. Second, does the applicant’s conduct amount to willful misconduct.
I do not accept the version of facts asserted by the applicant. It does not make any sense that the applicant’s employment would be terminated because the applicant was working too much in the absence of any prior warnings or prior discussions about the issue. Indeed, I accept the employer’s evidence that the employer was pleased to have its employees work hard and pay them for it. I am satisfied therefore, that the events occurred essentially as the employer asserts.
Did the applicant’s conduct amount to wilful misconduct as asserted by the employer and the Ministry? This is a difficult issue. Adjudicators interpreting the Employment Standards Act have frequently held that momentary flare-ups alone do not amount to wilful misconduct. However, in this case, the employee had a discipline record and had been warned that further misbehaviour could result in the termination of his employment. He also was engaged in misconduct when he punched in and then did not work for an extended period of time. The applicant’s conduct in repeatedly swearing at and verbally abusing Mr. McDowell amounted to a repudiation of Mr. McDowell’s right, on behalf of its company, to require the applicant to actually perform work duties while he was being paid. Under all of these circumstances, the Board finds that the applicant was terminated for wilful misconduct.
Disposition
- For all of the foregoing reasons, the application is dismissed.
“Brian McLean”
for the Board