0213-01-ES Bradford & District Produce Ltd., Applicant v. Robert Vaughan and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 42003676
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Domenic Bellanza and Domingoes Pereira for the applicant; Robert Vaughan, Richard Vaughan and Neil Balbossa for the responding employee; Judie Im for the Ministry of Labour.
DECISION OF THE BOARD; December 10, 2001
This is an appeal from an Officer’s Order requiring Bradford and District Produce Ltd. (the employer) to pay termination pay to Robert Vaughan. The employer maintains that Mr. Vaughan is not entitled to termination pay because he is guilty of wilful misconduct, within the meaning of section 57(10)(c) of the Employment Standards Act (the “Act”).
In the event that I conclude Mr. Vaughan is entitled to termination pay, the employer does not dispute that the amount in the Order to Pay is correct.
Mr. Vaughan had worked for a company called Ontario Produce, that was bought by the employer in May 2000. Mr. Vaughan, a maintenance mechanic, was hired by the employer.
The facts are not much in dispute. Mr. Vaughan went on vacation the week of July 24 to 28, 2000. When he returned to work on July 31, 2000, he found no punch card. Mr. Vaughan went to the office of the General Manager, Mr. Domenic Bellanza. Mr. Bellanza asked Mr. Vaughan where he had been the last week. Mr. Vaughan answered that he was on vacation, to which Mr. Bellanza responded that he had not been given permission to take vacation. Mr. Bellanza said the employer considered Mr. Vaughan to have abandoned his job, and told Mr. Vaughan to leave. Mr. Vaughan called Mr. Bellanza a snake, and left.
Mr. Vaughan made a claim for termination pay. The employer took the position that he had abandoned his job and in any event was not entitled to termination pay because he went on vacation without permission.
Between May and July 2000, Mr. Vaughan went on vacation two times. Both times, permission was requested of and approval granted by Domingoes Pereira, whose job title was never clarified with me. Mr. Pereira said he thought that he could approve short vacation requests, but later was told that he or the employee had to check with Mr. Bellanza.
About mid-July, Mr. Vaughan asked Mr. Pereira if he could take off July 24 to 28. Mr. Pereira said it was okay with him. Either at the same time (Mr. Pereira’s recollection) or a few days later (Mr. Vaughan’s recollection), Mr. Pereira gave Mr. Vaughan a vacation request form and told him that the vacation had to be approved by Mr. Bellanza. Mr. Vaughan testified that he filled out the form, and put it on Mr. Bellanza’s desk. Mr. Pereira saw the completed form, but did not see Mr. Pereira deliver it.
Mr. Bellanza said he never saw a vacation request form. He cannot recall if Mr. Pereira told him Mr. Vaughan was requesting vacation.
Mr. Pereira testified that on the day before Mr. Vaughan was to go on vacation, he asked Mr. Vaughan if he had received permission. Mr. Vaughan allegedly said he had heard nothing, and assumed all was okay, at which point Mr. Pereira counselled him not to leave without permission, and offered to provide Mr. Bellanza’s cellular phone number, an offer Mr. Vaughan declined. Mr. Vaughan denied that any such conversation took place.
When asked why he did not follow up with Mr. Bellanza when he got no approval of his vacation request, Mr. Vaughan testified that he just assumed that his request was okay. He added that the employer was not busy at the time; some employees were working reduced hours due to shortage of work, and there was very little maintenance work for him to do. Mr. Bellanza did not deny that employees were working fewer hours at that point in the season but said there was work for Mr. Vaughan to do.
Mr. Bellanza and Mr. Pereira both testified that on Monday July 24, 2000, Mr. Bellanza approached Mr. Pereira asking where Mr. Vaughan was. Mr. Pereira responded “I guess he is on vacation”, at which point Mr. Bellanza said “I did not give him permission to go”. Mr. Bellanza did not recall if anyone tried to contact Mr. Vaughan at home. Mr. Vaughan testified that no messages were left at his house.
Mr. Vaughan received no correspondence from the employer, either terminating his employment or confirming the employer’s view that he had abandoned his job.
I find that it is more likely than not that Mr. Vaughan prepared the vacation request form, and placed it on Mr. Bellanza’s desk. Somehow the request was misplaced. I do not believe that Mr. Bellanza intentionally “lost” the vacation request. I heard evidence from one of Mr. Vaughan’s witnesses, a former fellow employee, that Mr. Bellanza had approved his longer vacation request without incident.
Mr. Vaughan was foolhardy to leave on vacation without word that his request had been confirmed. But the surrounding circumstances contributed to Mr. Vaughan’s attitude. He had only worked for the employer for two months. His previous vacation requests had been approved by Mr. Pereira without incident. Mr. Vaughan understood that any time off was without pay, and his fellow workers were working reduced hours. Mr. Vaughan may reasonably have concluded that taking a vacation at that time was no big deal. But I repeat, he was wrong to have left on vacation without ensuring he had approval.
I think that it is more likely than not that Mr. Pereira did not have the conversation he recounted with Mr. Vaughan on the day before he left on vacation. Mr. Pereira left me with the impression that he was anxious to avoid any responsibility for these events. There was no apparent reason for Mr. Pereira to make such an enquiry of Mr. Vaughan.
Frankly, it is what occurred after Mr. Vaughan left on vacation that concerns me more. It is undisputed that Mr. Pereira knew that Mr. Vaughan had requested vacation. To Mr. Pereira’s knowledge, Mr. Vaughan had asked for vacation and had filled out the form. Whether Mr. Pereira failed to convey those facts, or Mr. Bellanza was not interested in them, the employer’s decision, in the face of the information available, to deem Mr. Vaughan to have abandoned his job, is ludicrous. Moreover, no one from the employer made any effort to contact Mr. Vaughan and tell him, for example, that his vacation was not approved, and he should report to work. Finally, when Mr. Vaughan arrived at work a week later, consistent with the return from a one week vacation, the employer maintained the ridiculous position that Mr. Vaughan had abandoned his job.
At best, I can conclude that Mr. Vaughan left on vacation without first ascertaining whether his request had been approved. That behaviour does not come close to approaching the standard of “wilful misconduct” that would disentitle Mr. Vaughan from receiving termination pay. In VME Equipment of Canada, [1992] O.E.S.A.D. No. 230, the referee described the test as follows:
Much has been written on the meaning of the words 'wilful misconduct'. It seems to me, however, that that authority can be summarized briefly. In the first place, serious misconduct has to be proven. That is conduct that seriously interferes with either the performance of the employee's job duties or that of his or her co-workers. Normally the Employer would have to demonstrate that harm has been done to its operation and that the misconduct amounted to a repudiation by the employee of the employment contract. There are two general categories of serious misconduct. There will be single acts: insubordination, theft and dishonesty, and physical violence against other employees, for instance, which may, standing on their own, meet that standard of seriousness. As well, there will be less serious repetitive forms of misconduct, which if handled properly by the employer, will also meet this standard of seriousness. The employer, in this scenario, must have explained to the employee after each occurrence that the conduct in question was not acceptable and that if continued would result in termination and there must be, subsequent to these warnings, a culminating incident.
In addition to proving that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from 'just cause', that the conduct complained of is 'wilful'. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.
- Mr. Vaughan’s leaving without securing approval, in all the circumstances, was not serious misconduct. To be satisfied that Mr. Vaughan’s misconduct was wilful, I would have had to find, at a minimum, that he went on vacation in the face of the employer’s denial of permission. And not even the employer is alleging such facts.
DISPOSITION
- The Order to Pay is affirmed. The Director, Employment Standards, is directed to pay to Mr. Vaughan the $6,492.10 being held in trust, and any interest thereon, as soon as practicable.
“Mary Ellen Cummings”
for the Board