3883-00-ES 401-Dixie Nissan Ltd., Applicant v. Mr. Lincoln Rambaran and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 43003368
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: James Cameron and Peter Frantzen for the applicant; Lincoln Rambaran on his own behalf; Judie Im and Richard Housen for the Ministry of Labour.
DECISION OF THE BOARD; October 24, 2001
This is an employer review of an Order to Pay termination and severance pay to Luke Rambaran. The employer submits that it is exempted from paying termination pay by the provisions of section 57(10) of the Employment Standards Act. The employer submits Mr. Rambaran is an employee “… who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer”. Identical language relieves an employer of the obligation to pay severance pay [section 58(6)(c)].
I heard the evidence of Peter Frantzen, the General Service Manager of 401-Dixie Nissan, and of Mr. Rambaran, a certified technician.
The essence of the dispute between the parties is whether Mr. Rambaran’s repeated inability to satisfy his employer with the quality of the work he was performing was “wilful” or not.
Mr. Rambaran was an employee with about 11 years of service when Mr. Frantzen was hired in April 1999. Mr. Rambaran felt that Mr. Frantzen was out to get him, and cited him for conduct that was ignored in other employees. Mr. Frantzen, in turn, did not believe that Mr. Rambaran was prepared to work in manner that was safe for his fellow workers and the customers of the dealership.
The first incident the employer relied on occurred on November 13, 1999. A customer returned with a car that had been repaired the day before, saying that the drivability problem he complained about initially had not been remedied, despite having paid $1,000 for the work. Mr. Frantzen came to the conclusion that Mr. Rambaran must have failed to test drive the car before turning it over to the customer or the water in the engine would have been noted. Mr. Rambaran insisted that he had test driven the car, and Mr. Frantzen admitted that the employer is not in a position to verify whether a given car has been test driven or not. Mr. Rambaran explained that the car washer had failed to ensure that the engine was dry. Mr. Frantzen responded that he would have expected Mr. Rambaran, not the car washer to do the work in these circumstances, but was not in a position to confirm who had actually washed the car and left the engine wet. But Mr. Frantzen testified that the test drive should have followed the shampoo, so any residual moisture could have been detected. Mr. Rambaran disagreed, saying test drives occurred before washing so that any lubricants left behind from the mechanics clothes or hands would be removed before the customer picked up the car. This incident was discussed with Mr. Rambaran.
On January 4, 2000, Mr. Frantzen entered the service bay, after Mr. Rambaran had left for the day, to find what he thought was the engine of a car being supported by a transmission hydraulic jack. Mr. Frantzen explained that hydraulic jacks are not intended to support such weights for a long period of time; only to assist in moving components in and out of the vehicle. Mr. Frantzen directed another employee to move engine support stands into place. Mr. Rambaran does not deny that a hydraulic jack is not a suitable engine support, but said that Mr. Frantzen was mistaken in what he saw. According to Mr. Rambaran, the engine had not been removed from the vehicle, and the jack was merely resting in place. Mr. Rambaran’s foreman issued a written warning, citing the danger that had been created for fellow employees, highlighting that it would have taken only a few minutes to make the situation safe before the employee went home. Mr. Rambaran was advised “the dealership will not tolerate such irresponsible actions that could jeopardize our safety and reputation”. Mr. Rambaran recalled the incident, and his foreman speaking to him but did not recall receiving the written warning.
On May 10, 2000, an unhappy customer again returned with the concern that the malfunction he had brought in had not been resolved. Mr. Frantzen said he drove the car with the customer, and the noise of the brakes was something Mr. Rambaran should have noted if he had road tested the vehicle. Again, Mr. Frantzen concluded that the vehicle had not been test-driven before being given to the customer. The issue was discussed with Mr. Rambaran. He asserted that he had tested the car, and the noise with the brakes could have been caused by the customer driving over stones which worked their way into the brakes. Mr. Frantzen testified that such an event was highly unlikely.
On June 14, 2000 the employee tightened wheel nuts on a vehicle using his air gun, not finishing with a torque wrench, as company policy directed. Mr. Rambaran admitted that he failed to use the torque wrench on this occasion, and that he knew about the policy, but that he occasionally forgets.
On June 15, 2000, Mr. Frantzen entered the service bay to find a large sports utility vehicle up on a hoist, but leaning at what Mr. Frantzen considered a precipitous angle. Mr. Frantzen ordered Mr. Rambaran to bring the vehicle down. Mr. Rambaran agreed that the car was on an angle, but said it was not unusual, and he had seen other employees do the same. Mr. Frantzen denied having seen such a thing before. Mr. Rambaran argued that the configuration of this vehicle’s underbody required that it be supported on a slant. Again, the incident was discussed with Mr. Rambaran.
On June 19, 2000, Mr. Rambaran was installing a spoiler on a car trunk, which also requires the substitution of larger trunk springs. Something happened, and the trunk lid fell on Mr. Rambaran's legs. He was not injured. Mr. Frantzen concluded that the employee was not working safely, since he had not propped the lid up, or arranged for another employee to hold it. Mr. Rambaran responded that a prop is not a good idea because it could prevent him from being able to get out of the way quickly in the event a spring popped. In this incident, he said that a spring had popped, and made a sound that caused the employee who was spotting him to drop the trunk lid. Mr. Rambaran said it was common for noisy shop sounds to startle an employee. While this is not impossible, it seemed to me unlikely. It is more likely, I conclude, that Mr. Rambaran was working without a spotter.
The culminating incident occurred on June 22, 2000. The employee was assigned to perform a re-alignment on a vehicle that belonged to a relative of Mr. Frantzen. The day after the work was performed, a control arm bolt fell off, causing the driver to lose control of the steering while on a ramp entering Highway 401. The driver was able to pull over and was not injured but the car had to be towed, and the outcome could have been much more serious. Mr. Frantzen testified that, on examination, they found that the control arm had worked its way back from the suspension, and one bolt was gone and another was loose. Mr. Frantzen concluded that in the course of the performing the re-alignment, Mr. Rambaran had tightened the bolt with an air gun, and not finished with a torque wrench, with the result that the bolt loosened. Mr. Frantzen testified that the bolt hole had been stripped, so it was not surprising it had not held. Mr. Rambaran denied that he had failed to use a torque wrench, and further said that he had not touched the bolt in issue. He said that when he told Mr. Frantzen he could not do the complete re-alignment in the time allotted, Mr. Frantzen had verbally amended the work order. Mr. Frantzen had no recollection of having made the change and said that in any event, the bolt at issue would have had to have been removed because any kind of work on the suspension necessitates removal of the tires.
Mr. Frantzen testified that this last incident caused him to completely lose patience with Mr. Rambaran. He testified that there were repeated incidents with the employee failing to follow standard safety practices and not taking the employer’s concerns seriously.
An employer has the right to terminate an employee whose performance is not satisfactory. At issue in this case, however, is whether the employer is relieved of the obligation to pay termination and severance pay to Mr. Rambaran that would otherwise be required by sections 57 and 58 of the Act. An often quoted statement of the test an employer must meet is set out in VME Equipment of Canada Limited, May 11, 1993 (ES 09/92A) at p. 27:
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.
- The employer has established, to my satisfaction, that Mr. Rambaran was not able to meet its expectations to consistently produce quality work, and to do it in a manner that was safe, for both fellow workers and the customers of the dealership. But I am not satisfied that Mr. Rambaran failed to meet those legitimate expectations, on purpose. While Mr. Rambaran displayed, both in the workplace and before me at the hearing, considerable disrespect for his supervisor, the evidence does not disclose that Mr. Rambaran made mistakes intentionally or deliberately failed to follow instructions. I believe that Mr. Rambaran thought he had done a good enough job for the 11 years before Mr. Frantzen joined the company, and mostly ignored or minimized the various concerns raised by Mr. Frantzen. While I agree that an employer is not obliged to continue to employ a person in those circumstances, the conduct does not amount to the calculated, deliberate actions that would relieve the employer of the requirement to pay termination and severance pay.
DISPOSITION
- The application for review of the Order to Pay is dismissed. I affirm the Order to Pay. The Director, Employment Standards is directed to pay out the $10,000 being held in trust, and any interest thereon, to Mr. Rambaran a soon as practicable.
“Mary Ellen Cummings”
for the Board