James B. Payne v. Diversey Lever and Ministry of Labour, 2001 CanLII 5487

1940-00-ES James B. Payne, Applicant v. Diversey Lever and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 63001728

BEFORE: John Morgan Lewis, Vice-Chair.

APPEARANCES: James B. Payne on his own behalf; Ian Johnstone, Kimberly Chalk, Rebecca Van Bakel and Connie Palmer on behalf of Diversey Lever; Mircho Mirchev on behalf of the Ministry of Labour

DECISION OF THE BOARD; May 16, 2001

1. This is an appeal under section 68 of the Employment Standards Act (the “Act”) for a review of a refusal to issue an order to pay. The letter advising the applicant, James B. Payne, of the refusal to issue an order to pay was dated August 21, 2000. The application was filed with Board on October 10, 2000. Therefore, this is a timely application in accordance with section 68(3) of the Act.

2. Mr. Payne claims that on November 5, 1999 he was terminated from his employment without just cause. Mr. Payne seeks termination pay in accordance with section 57 of the Act. The responding party, Diversey Lever (the “company”), asserts that Mr. Payne was terminated from his employment for wilful misconduct and disobedience and is therefore not entitled to termination pay.

3. A hearing in this matter was held on February 8 and 27, 2001.

4. Mr. Payne was not represented by counsel. As a result, I advised Mr. Payne at the commencement of the hearing that there was no requirement that parties appearing before the Board retain legal counsel. The Board often conducts hearings where one or more of the parties are not represented by legal counsel. I advised Mr. Payne, however, that hearings before the Board were legal proceedings and that the Board’s role was to adjudicate the issues in dispute. The Board could not act as an advocate for or as an advisor to any party merely because that party was not represented by legal counsel. Such role would be inconsistent with the Board’s role as a neutral adjudicator.

5. Mr. Payne testified on his own behalf. The Board also heard the testimony of Rebecca Van Bakel and Jim Gabriel who testified on behalf of the company. Most of the material facts were not in dispute, although the parties asked the Board to draw different, sometimes conflicting inferences in relation to those facts. In assessing those areas of disagreement, the Board duly considered all of the oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses’ respective memories, their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanour while testifying. The Board also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.

Facts

6. Until the date of his termination, Mr. Payne had been employed by the company for a period of five years and nine months. Mr. Payne worked primarily in the shipping and receiving department throughout his tenure with the company. Mr. Payne’s duties consisted mainly of loading and unloading soap products from trucks at the company’s premises located in London, Ontario.

7. James Gabriele is no longer employed by the company. Mr. Gabriele was Mr. Payne’s immediate supervisor at the time of his termination. Mr. Gabriele testified that he considered Mr. Payne to be an average worker who was prone to making mistakes. Rebecca Van Bakel is currently employed by the company and at the time of Mr. Payne’s termination held the position of supervisor of receiving clerks. Ms. Van Bakel was considerably less generous in her assessment of Mr. Payne’s job performance. Both Mr. Gabriele and Ms. Van Bakel made reference to a number of incidents which demonstrated Mr. Payne to be discourteous, argumentative and confrontational to fellow employees as well as to representatives of management. These incidents led Mr. Gabriele to speak with Mr. Payne on several occasions and warn him of his unacceptable behaviour.

8. Mr. Payne was formally disciplined on three occasions prior to the events giving rise to his termination. On August 8, 1996 Mr. Payne received a written warning for having left the workplace on July 26, 1996 without first receiving permission of either a supervisor or a lead hand. Mr. Payne received a second written warning on June 24, 1998 when he refused to wear personal protective equipment and safety glasses while changing a forklift battery. Mr. Payne confirmed the information contained in the written warning which indicates that he refused to comply with the instructions of the company’s Safety, Health and Environmental Coordinator. Mr. Payne received a third written warning on December 29, 1998 with respect to an incident in which he was verbally abusive to a fellow employee.

9. The company introduced as evidence its Employee Handbook Practice and Procedures (the “policy”), which reflects the company’s position with respect to progressive discipline. Relevant portions of the policy are set out as follows:

10. Types of Discipline

Discipline can be administered through a variety of formats, oral reprimand to termination of employment. The general sequence for progressive discipline is as follows:

1. Documented First Warning

2. Documented Second Warning

3. 3 Day Suspension

4. Termination of Employment

5. Documented First Warning

This is a form of corrective action that occurs when a person fails to maintain a standard, or has broken a rule or procedure or has been warned that repetition may eventually call for discipline. The purpose is to ensure understanding of the inappropriate action by the employee and to ensure the employee corrects his/her behaviour so that similar situations do not reoccur.

This is the entry level of our progressive discipline procedure and as such is used when discipline is warranted at this level.

2. Documented Second Warning

This form of corrective action is usually the second step of the program and is intended to be used as a progressive tool to assist in correcting inappropriate behaviour or rule/policy violations. It is meant to give the employee another opportunity to correct his/her behaviour. It can also be the first level of warning if the occurrence is serious enough that greater corrective action is required by the employee then at the Documented First Warning stage.

At this stage the employee must recognize the seriousness of the occurrence and that enhanced efforts on his/her part must occur if they are to succeed and not receive any further discipline of up to and including termination.

3. Suspension

This form of corrective action is usually the third step of the program and is intended to be used when the occurrence is serious in nature and lower levels of discipline would be insufficient to correct the behaviour. Also, it is intended to be used when employees fail to comprehend the intent of the first 2 stages and to whom an economic penalty is the only manner in which to relay the consequences of his/her actions.

As well it is to be used when as outlined in Group 1 offences that occurrences are so severe than an immediate suspension of the employee is necessary. If this occurs the procedure as outlined under the Group 1 program would take effect.

4. Termination

The most drastic and usually last resort of our progressive program is the termination of employment from Diversey Lever. If an employee demonstrates continued failure to adhere to our rules, code of conduct or policies and/or participates in a serious offence then the company has no other recourse but to terminate their employment.

This will be used as a last recourse however the actions of the employee, the employee’s past history and the seriousness of the occurrence may result in the employee being terminated.

5. Groups of Offences

Each disciplinable situation is graded on its severity, its potential consequences, and the circumstances surrounding the situation. It then is categorized into one of two groups that determine how the situation will be handled by all concerned.

Group 1 Offences

Some situations are so serious that the first violation may result in automatic discharge and or suspension of the employee pending further investigation. Group 1 violations remain on the employees’ file for a period of 3 years from the date of the occurrence, provided that no further violations/offences have occurred within that period.

Violations under Group 1 offices would generally include the following:

1. Theft of Company and/or employee property. A release form that is authorized by management must accompany anything removed from the plant.

2. Drinking, use or possession of intoxicants, or use or possession of non-prescription narcotics while on duty.

3. Carrying, concealing or possession of a dangerous weapon.

4. Deliberate abuse or destruction of company or employees property and/or possessions.

5. Physical or threatening verbal abuse of an employee or fighting.

6. Deliberate contamination of raw materials and/or finished product and/or any act of sabotage or unsafe act or practice that endangers life or property.

7. Any falsification, misrepresentation, or omission of information on your employment application or other Company records.

8. Leaving the plant without permission.

9. Refusal to comply with instructions from leadership.

10. Making false or malicious statements about the company and/or its products.

11. Smoking in a non-designated area.

Please note that violations of our Harassment and Attendance Policy’s are considered serious offences but have been omitted from Group 1 due to them both having separate policy’s and procedure’s [sic].

10. The events giving rise to Mr. Payne’s termination commenced on November 1, 1999. According to Ms. Van Bakel, the company will sometimes designate certain items as being “hot” which indicates that it is a priority for those items to be shipped to a customer as soon as possible. Hot items are a concern to the company as it can indicate that a customer may be out of a certain product and thereby losing potential sales. Ms. Van Bakel and Mr. Gabriele both indicated that the failure to supply products on a timely basis can lead to the loss of customers for the company. In recognition of this fact, those employees working in the shipping and receiving department were routinely reminded of the importance attached to hot items and ensuring that they were shipped on a priority basis.

11. Ms. Van Bakel testified that on November 1, 1999 she had indicated certain items as being hot on the allocations sheets. The allocation sheets are typically placed on Mr. Payne’s makeshift desk in the shipping and receiving area. At the end of Mr. Payne’s shift, Ms. Van Bakel noticed that the hot items had not been shipped. Ms. Van Bakel and Mr. Gabriele discussed the situation but did not raise the issue with Mr. Payne.

12. On November 3, 1999 Ms. Van Bakel again indicated that there were hot items on the allocation sheets and were required to be shipped on a priority basis. Ms. Van Bakel testified that she placed the allocation sheets on Mr. Payne’s desk at 11:30 a.m. Ms. Van Bakel further indicated that in light of what occurred on November 1, 1999 she spoke to Mr. Payne and “looked him in the eyes” to ensure that the hot items were brought to his attention. Once again, however, the hot items were not shipped during Mr. Payne’s shift.

13. Mr. Payne testified that he was made aware of the hot items later that day at around 1:40 p.m. Even if I were to accept Mr. Payne’s testimony, which I do not, he did not provide any explanation as to why the hot items were not shipped during his shift which did not end until 3:00 p.m. Mr. Payne would have had ample opportunity to ship the hot items prior to his shift ending.

14. Once again Ms. Van Bakel brought this matter to Mr. Gabriele’s attention. The following morning Mr. Payne was asked to meet with Mr. Payne and Ms. Van Bakel to discuss his failure to ship the hot items during his shift the previous day. During this meeting Mr. Payne indicated that he had been busy and had not realized that shipping the hot items had been a priority.

15. The following morning Mr. Payne approached Mr. Gabriele and voiced his concerns regarding the meeting held the day before and in particular the presence of Ms. Van Bakel in the meeting. Mr. Payne was of the view that it was inappropriate that another supervisor had been present for the meeting. Mr. Gabriele did not share Mr. Payne’s concern and indicated to Mr. Payne that Ms. Van Bakel’s presence at the meeting was entirely appropriate in the circumstances.

16. Mr. Payne could not let things rest. He became increasingly incensed regarding the whole incident and what he perceived to be the unfair treatment he received by Mr. Gabriele. Around 1:00 p.m. that day Mr. Payne telephoned Mr. Gabriele and sought his permission for leaving work prior to his shift ending. Mr. Payne indicated that he was not feeling well and was upset. Mr. Gabriele approved of Mr. Payne leaving early but phoned back five minutes later and requested that Mr. Payne attend at his office before leaving for the day.

17. Mr. Gabriele had met previously with Ms. Van Bakel and Mark Shannon, the company’s Human Resources Manager to discuss a more formal response to Mr. Payne’s failure to ship the hot items. It was decided at that meeting that Mr. Payne would be suspended for three days in keeping with the company’s progressive discipline policy and in consideration of the three warning letters previously issued to Mr. Payne. Mr. Gabriele requested Mr. Payne to attend at his office in order to advise him of the suspension.

18. Mr. Payne testified that he does not recall very much of what transpired in Mr. Gabriele’s office. Mr. Payne stated in the hearing that he was “ready to explode” and that he was “really cooking” by the time he entered Mr. Gabriele’s office. The meeting with Mr. Gabriele did not last long. Mr. Gabriele reviewed the circumstances of the failure to ship the hot items and then advised Mr. Payne of the company’s decision to suspend Mr. Payne for three days. Mr. Gabriele testified that Mr. Payne became very angry, stood up and left the office and proceeded to slam shut Mr. Gabrielle’s office door. Mr. Gabriele opened the door and demanded that Mr. Payne return to his office as he was not yet finished with the meeting. Mr. Payne ignored Mr. Gabriele and kept walking. Mr. Gabrielle repeated his demand that Mr. Payne return but again Mr. Payne ignored his request and did not return.

19. Mr. Payne testified that he left Mr. Gabriele’s office with the intent of confronting Mr. Shannon regarding his suspension. Mr. Payne was of the opinion that it was Mr. Shannon’s decision to suspend him and that many of his problems with the company were attributed to Mr. Shannon. Mr. Payne went to Mr. Shannon’s office but was unable to meet with him as Mr. Shannon was away for lunch. When asked on cross-examination how he intended to confront Mr. Shannon, Mr. Payne answered that he did not know. When pressed further whether his intent was to physically confront Mr. Shannon, Mr. Payne again answered that he did not know.

20. Mr. Payne then left the plant for the day. When Mr. Payne arrived at home Mr. Shannon had already left a message indicating that he was not to return to work on Monday and that he should call Mr. Shannon on Monday morning. Mr. Payne called Mr. Shannon on Monday at which time he was advised of his termination. Mr. Payne received a registered letter from the company dated November 5, 1999 confirming that he was being terminated on the grounds of leaving the plant without permission.

Discussion and Decision

21. Section 57(10) of the Act states in part:

22. (10) Subsections (1) and (2) do not apply to,

(c) an employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer.

22. Having considered all of the evidence, both documentary and viva voce, as well as the submission of the parties, I am of the view that the actions of Mr. Payne, while inappropriate, do not amount to wilful misconduct and disobedience and as such, he is entitled to termination pay in accordance with section 57 of the Act. My reasons are as follows.

23. Mr. Payne was far from a model employee when working for the company. His difficulties would appear to stem from his confrontational manner in dealing with fellow employees and those individuals in authority. The Board heard many instances where Mr. Payne challenged the authority of management bordering on insubordination. In addition, Mr. Payne had previously been issued three written warnings in relation to his conduct. One of those instances was for the same infraction complained of in this matter; leaving the plant without permission.

24. The company followed its policy of progressive discipline throughout its dealings with Mr. Payne. It was only after the issuance of three written warnings did the company resort to the imposition of a three-day suspension. The company was justified in handing out the suspension. The need to treat hot items as a priority is a legitimate goal of the company and one which was communicated to its employees. The failure of Mr. Payne to ship the hot items was a serious breach in carrying out his duties, warranting discipline.

25. I am still unclear why Mr. Payne reacted so badly to the presence of two supervisors, both of whom were involved in the incident, at a meeting to discuss the situation. There are many valid reasons for the presence of more than one supervisor to attend such a meeting. To become so enraged defies explanation particularly where the anger lasts for so long and resulted in Mr. Payne feeling ill. Mr. Payne testified that “he was ready to explode” even before entering Mr. Gabriele’s office. Mr. Payne does not recollect what transpired in the meeting as a result of his temper when advised of the suspension.

26. Mr. Payne was clearly acting in an inappropriate manner when he refused to return to the meeting with Mr. Gabriele and left the plant. Mr. Gabriele twice ordered Mr. Payne to return to his office. Mr. Payne refused to do so. The question to be determined, however, is whether Mr. Payne’s actions amount to wilful misconduct or insubordination thereby depriving him of termination pay. As noted earlier, I am of the opinion that his actions do not amount to wilfull misconduct or insubordination as the necessary element of intention on the part of Mr. Payne has not been established.

27. In order to satisfy the conditions set out in subsection 57(10) (c), Mr. Payne must be found to have intended to refuse to carry out a clear order which would have the result of striking at the very root of the employment relationship. As the extensive jurisprudence on this point has established, there must be an act that is intentional or deliberate, or one that is so reckless as to amount to being intentional. A momentary flare-up will not give rise to finding of wilful misconduct or insubordination. That is precisely what happened in this case. Mr. Gabriele had granted permission for Mr. Payne to leave work early. Mr. Payne attended at Mr. Gabriele’s office and became enraged when advised of his suspension. Mr. Payne stormed out of the office and left the plant despite Mr. Gabriele advising him that the meeting was not yet completed. By leaving the meeting, Mr. Payne was clearly acting on his emotions and in such circumstances I am unable to conclude that Mr. Payne put his mind to the request of Mr. Gabriele and intentionally disobeyed the request to return to the meeting.

Disposition

28. The Board hereby finds that Mr. Payne was not guilty of wilful misconduct or insubordination in accordance with subsection 57(10)(c) of the Act. Accordingly, Mr. Payne is entitled to termination pay. The determination of the appropriate amount for termination pay was not addressed by the parties. The Board directs the Manager of Field Services to assign a Labour Relations Officer to meet with the parties to resolve this issue. I remain seized should the parties be unable to reach an agreement on the amount of termination pay to which Mr. Payne is entitled.

“John Morgan Lewis”

for the Board