2402-00-ES Jasvir K. Sodhi, Applicant v. Matrix Logistics Services Limited, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 40011882
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Winston G. Mattis and Jasvir Sodhi for the applicant; Amanda Hunter, Ted Smith and Walter Hurtick for the employer; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; May 30, 2001
This is 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 Matrix Logistics Services Limited (“Matrix”).
The Board heard the application for review on April 19, 2001.
The applicant’s claim is for termination pay. The employer asserts that no termination pay is owing because the applicant’s employment was terminated for wilful misconduct. The employment standards officer agreed with the employer and therefore did not make an order to pay.
The applicant was employed for Matrix for less than a year at the time her employment was terminated. She was employed as a picker/packer.
In September 1999 the applicant sustained a work-related injury to her lower back which put her off work and on Workplace Safety and Insurance Board (“WSIB”) benefits. She returned to modified duties on a part-time basis with a plan to gradually escalate the amount of time she spent at work. She also underwent periodic physiotherapy treatments for her back injury. In addition, in early January 2000 the applicant hit her head at work and was forced to go on modified duties. There was no assertion that these facts were related to the way in which the applicant was ultimately treated by the company.
In December 1999 the applicant decided to travel to India to retrieve her baby daughter who had been living with her mother-in-law. She requested that she be provided with 2 weeks’ paid vacation and 4 weeks’ unpaid leave. Matrix granted the applicant’s request for vacation pay even though she had not yet earned it all. However, Matrix denied her request for unpaid leave, in accordance with company policy that employees are required to have one year’s service in order to be granted unpaid leave. However, the company advised the applicant that she may be able to use 2 floating days and 2 personal leave days to add to her vacation time.
The applicant was dissatisfied with Matrix’s position and made further requests for leave, but these were refused. In addition, during January, the applicant’s complement of float days and personal leave days were reduced by absences due to illnesses. The applicant disputed at the time and before the Board Matrix’s reduction in the amount of personal leave she was owed.
These issues culminated in a meeting between management and the applicant on January 24, 2000. At that meeting, management gave the applicant a memorandum which set out her vacation days and the one float day which remained to her credit and the date at which the company expected her back at work, February 15, 2000. It is apparent that management was concerned that the applicant would not return to work on the required date. Following that meeting, the applicant claims that she asked for clarification regarding another float day and that the company’s Director of Human resources, Ted Smith, advised her that he would get back to her. Mr. Smith denied this assertion.
From this point in the evidence, there is substantial disagreement and confusion about the facts. The applicant testified that she contacted her travel agent and asked her to book an airline ticket for 2 weeks, to return on the “14th, 15th or 16th, something like that”. She testified that the ticket was not booked until February 28, when, not having heard back from Ted Smith regarding her extra float day, she booked a flight, to return on February 16th at 3:50 p.m. (1 hour and 20 minutes after the start of her shift on that day even if she was permitted to return on that date). The applicant testified that the travel agent advised her that she could change the ticket in India. However, the travel agent was not called as a witness. Nor was the ticket actually changed when the applicant arrived in India. In addition under cross examination Ms Sodhi was shown a copy of her ticket which stated that it had been booked on February 25 and not the 28th as claimed by the applicant.
On January 28, the applicant did not attend at work for her final shift before her vacation. She claims that she had a physiotherapy appointment that afternoon (her shift began at 2:30 p.m.) and that when she informed the company of this, Mr. Hurtick advised her not to come into work because there was no work for her to do. The company’s evidence was that the applicant called in sick. However, the company did not call as a witness the person whom it alleged the applicant spoke to. It is apparent, however, that the applicant’s absence on January 28 heightened the company’s anxiety that the applicant would not return for work on February 15 as she was required to.
The applicant went to India. Shortly after arriving there, she became ill. On February 2, the applicant’s uncle called a doctor and the applicant was hospitalized in a small clinic located 7 kilometres from the village where the applicant was staying. On examination-in-chief, the applicant testified that “after February 2nd or 3rd I stayed in the clinic”. To reinforce the point, the applicant’s counsel asked: “For how many days?” and the applicant replied: “2 weeks, until February 12, 2000”. As we shall see, this evidence became murky in later testimony.
On February 12, 2000 the applicant’s doctor in India wrote a note which was introduced into evidence. Although the doctor was not available for cross-examination, the employer did not object to its introduction. That note stated:
To Whom It May Concern
This is to certify that Jasvir K. Sodhi was seen by me on 12/2/2000. Due to her present medical condition, she is going to be hospitalised to further investigate her problem. In my opinion she will not be able to travel as scheduled on 14th Feb. 2000 back to Canada. If further information is needed, please do not hesitate to write me or telephone me.
Yours truly
“K. Mann”
Dr. Kulwinder Mann
Dr. Mann’s note gave two telephone numbers and an illegible address. On February 12 the applicant was hospitalized. She also learned that she was pregnant.
The applicant took certain steps to advise the company that she would not be returning to work. She testified that her efforts were hindered by the fact that it was eight hours’ travel time to reach a telephone. On February 15, her brother-in-law telephoned the company after the time at which her shift was to start and advised that she would be off work due to illness. Dr. Mann’s report was faxed to the company. The applicant also claimed that the report was faxed to the company earlier on the same day but there was no direct evidence of that and there was no evidence as to why Ms Sodhi would find it necessary to fax the report twice. Ms Sodhi testified that there were no telephones with international connections or fax machines in the village where she was staying. She was required to travel 8 hours to the City to send a fax or make a telephone call to Ontario.
The company terminated the applicant’s employment because she was not present at work on February 15 as she was instructed to be. Ms Sodhi was discharged from the hospital on March 23. Unfortunately, on March 25 she suffered a miscarriage. The applicant returned to Canada on April 4.
Decision
I will first deal with credibility. I find that Ms Sodhi is not a credible witness, and to the extent that credibility matters in this case, I accept the evidence of Matrix’s witnesses over that of the applicant. I base my conclusions on the lack of coherency of Ms Sodhi’s testimony, her demeanour on the witness stand, and contradictions in her evidence. To give some of the most glaring examples of contradictions, Ms Sodhi initially testified that she was in hospital in India for 2 weeks beginning on February 2. However, when it became obvious that that was not the case, she asserted that she was actually in hospital from February 12 to March 23. Ms Sodhi also testified that she booked her plane ticket on February 28 in the “afternoon”, when it was clearly issued on February 25.
Furthermore, it is apparent that Ms Sodhi was not particularly anxious to follow the company’s direction to return to work on her shift on February 15. The applicant’s attitude can be seen in the following. On February 28 Ms Sodhi was aware that the company did not agree with her assertion that she was entitled to one more float day. Yet when she went to pick up her ticket from the travel agent she made no effort to correct her return date. Ms Sodhi testified that she could change her ticket once she got to India. However, it is clear that she did not change her
ticket on her arrival and had not changed it by February 12, the date she was hospitalized. So had Ms Sodhi not gotten ill, she would have had to either travel 8 hours to the City and 8 hours back to change her ticket or she would have had to change it by February 15, the date she was required to leave in order to be at work on time. There was obviously no guarantee a seat was available on the flight two or three days before the departure. In other words, even on her best case, the applicant was prepared to take the risk that a ticket was available on a flight which could get her to Toronto in time to be at work at the start of her shift on February 15 (actually on each of a number of flights since the flight went Delhi-Vienna-London-Toronto). Therefore, at best, the applicant was reckless regarding returning to work when the company required it.
Counsel for the applicant asserts that does not matter. Whatever Ms Sodhi’s intentions were regarding her return to work date, the uncontroverted evidence is that Ms Sodhi was in a hospital on February 15, the day she was required to be at work and that she had been there since February 12 and that she could not fly.
In my view, that does not answer the question. While it is true that Ms Sodhi’s evidence that she was in the hospital is uncontroverted (the doctor being in India), it is however also uncontroverted that Ms Sodhi was aware on February 12 that she was too ill to travel and would not be at work. Yet the applicant made no immediate effort to advise Matrix. The applicant says she did not know whether the doctor had a telephone (although there was a telephone number on the doctor’s note). She also says that in order to make an international call, she had to drive eight hours to a city. She did not explain why one of her relatives could not have travelled to the city at an earlier time. She knew full well that Matrix expected her back on February 15. She knew the consequences of not appearing on that date. Yet she did not take the steps necessary to advise Matrix until after she had already missed her shift. Such conduct amounts to wilful neglect of duty.
I am also satisfied that Ms Sodhi booked a ticket to return on February 16 even though she knew her employer required her back to work on February 15. Even on her best case, the applicant could not have arrived at work in time for her shift on February 16. Moreover, the applicant made no effort to change her ticket as her travel agent advised that she could do. In my view, Ms Sodhi booked her ticket on January 25 to return on February 16 even though she knew clearly that her employer expected her back at work on February 15. I note that even if Ms Sodhi was right about the number of float days owing to her she had no right to just take a float day when the company required her to be back at work on February 15. She would also not have been able to arrive on time for her shift (after flying all day) or for her shift on February 16 either since the since the plane arrived more than one hour after the start of her shift.
I seriously doubt that Ms Sodhi had any intention of being at her shift on February 15 at the start time for her shift. Had she such an intention she would have taken steps to ensure she had a ticket to return at the required time. On February 25, the day after the company told the applicant that it required her to be back at work on February 15, the applicant purchased a plane ticket with a return date of February 16. In doing so the applicant showed her disdain for the company’s direction and was therefore insubordinate. The applicant could have resolved the problem by changing her ticket’s return date even assuming the truthfulness of her evidence regarding the travel agent’s advice. She had an opportunity to change her ticket on February 28, when it was apparent that no additional float day was forthcoming and when she first arrived in India, but she did not do so. I find that this conduct also amounted to wilful misconduct even
though the applicant was medically unable to fly on February 15 in any event. The applicant’s conduct was direct flouting of the employer’s authority. In total, I find that the applicant’s actions constitute wilful misconduct and accordingly, I deny her application for review.
“Brian McLean”
for the Board