Afifi Khalil v. Linamar Company, Vehcom Manufacturing a Division of Comtech Manufacturing Ltd. and Ministry of Labour
2960-00-ES Afifi Khalil, Applicant v. Linamar Company, Vehcom Manufacturing a Division of Comtech Manufacturing Ltd. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 61005219
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Afifi Khalil appeared on his own behalf; D. Brent Labord, Chris MacRae and Peter Jovanovich appeared on behalf of Linamar Company, Vehcom Manufacturing; Jeremy Warning appeared on behalf of the Ministry of Labour.
DECISION OF THE BOARD; July 6, 2001
Reasons for Decision
The style of cause is hereby amended to reflect the correct name of the responding party employer: “Linamar Company, Vehcom Manufacturing a Division of Comtech Manufacturing Ltd.”.
This is an application to review the decision of the Employment Standards Officer to not issue an order in this matter.
The applicant was terminated from his employment on February 21, 2000. He had been employed by the responding party (the “employer”) since October of 1996. On or about August 22, 1998, he suffered a compensable injury. From August of 1999 until his termination, he was assigned modified duties to suit his restrictions.
The applicant disputes the propriety of his termination. That, however, cannot and is not the primary subject of this application. (Except in circumstances not relevant to this case), the Employment Standards Act does not provide reinstatement as a remedy for an employee – even where such employee has been discharged without just cause. An employer is, generally speaking, free to terminate the employment of any employee for any reason so long as adequate notice (or pay in lieu thereof) is provided.
Thus, the only issue in the instant case is whether the applicant is entitled to termination pay in lieu of notice (as he was discharged without any actual notice).
The Employment Standards Officer concluded that the applicant had “been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer” within the meaning of section 57(10)(c) of the Employment Standards Act (the “Act”). The Officer consequently concluded that the employer was exempted from any obligation to provide notice of termination.
The applicant denies that he was guilty of any such conduct and seeks the payment of termination pay.
Although this is the applicant’s appeal, the parties agreed that the employer would call its evidence first and would thereby provide the evidence supporting its view of the reasons for termination.
That evidence established many facts most of which are, ultimately of little consequence for the purposes of this hearing. For example, I need not consider or rely upon the evidence surrounding the applicant’s hire and orientation and his having signed various documents relating to company safety policies. Similarly, I have found other instances of discipline imposed on the applicant to, ultimately, be of little assistance in making my determination.
I note that while these disciplinary events are on the applicant’s file, he disputes the propriety of some or all of them. More important for my purposes, however, none of these events (given their general character) assists me in determining whether or not the applicant was guilty of wilful misconduct immediately prior to his determination.
The verbal warning the applicant received on November 9, 1999 might arguably be treated differently since it appears to involve an infraction (failure to wear proper eye/ear protection in the plant) quite similar to the one(s) that culminated in the applicant’s discharge. However, I am prepared to assume (without finding) that the applicant’s version of the events is relatively accurate and (without unnecessarily reviewing the incident in all its intricacies) that the applicant’s transgressions may have been largely “technical” – having been among several employees caught in the proactive safety web the employer deployed on that particular day.
Thus, I will restrict my inquiry to the events which transpired on the few days prior to the applicant’s discharge.
There are disputed versions of those events before me. By and large I have chosen to accept the employer’s evidence where it conflicts with that of the applicant. I have done so for the following reasons.
First, during the course of the applicant’s cross-examination of Mr. MacRae (the employer’s only witness), I advised the applicant (on more than one occasion), that, if he intended to challenge Mr. MacRae’s version of the facts, he was obliged to put the salient details of his version to the witness in cross-examination. The applicant appeared to understand my admonition and cross-examined Mr. MacRae on a number of the events. I have recently described as ultimately of little relevance to my determination.
However, with respect to the events culminating in his termination, the applicant posed few questions and failed to put any competing version of events to Mr. MacRae.
Accordingly, it was only over employer counsel’s strong objection that I, all the same, permitted the applicant to testify as to his version of those relevant events.
When I weigh those competing versions, however, I must accept the employer’s as more reliable. In coming to that conclusion I rely upon the fact that the applicant failed to cross-examine or meaningful challenge the employer’s evidence when given, the fact that the applicant’s version of events were somewhat fluid, the fact that Mr. MacRae, unlike the applicant, had made notes of the events in question. Finally, I note as well that a document filed in evidence by the applicant (a memo from Dr. Millman dated March 6, 2000) undermines portions of his own evidence. And while Dr. Millman can be expected to have little first hand knowledge of events he purports to document, I note that portions of the memorandum, which the applicant relies upon, are entirely inconsistent with the applicant’s utter denial of any refusal to wear protective eye wear.
Thus, I am satisfied that on at least four occasions within a period of three days, the applicant was discovered not wearing that protective eye gear and/or full face shield which he had specifically and repeatedly been instructed to wear by a number of employer representatives including the plant nurse (the full face shield had been provided, in part, in response to concerns the applicant himself had raised). No explanation was or has been provided for that repeated refusal.
I am satisfied that when an unjustified and unexplained refusal to wear protective health and safety equipment is repeated within a short period of time despite repeated contrary employer directions, an employee can be said to have engaged in wilful misconduct.
This application is dismissed.
“Bram Herlich”
for the Board