3582-99-ES Brenda Shalla, Applicant v. Times Fiber Canada Ltd and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 20034418
BEFORE: Bram Herlich, Vice‑Chair.
APPEARANCES: Art Morin and Bill Roter appeared on behalf of the applicant; John Martelli, Lillian Dunbar and Barry Holt appeared on behalf of the responding party Times Fiber Canada Ltd.; Grainne McGrath, counsel for the Ministry of Labour appeared at the commencement of the hearing to advise that the Ministry of Labour would not be participating in the proceedings.
DECISION OF THE BOARD; April 20, 2001
This is an application to review the decision of the Employment Standards Officer to not issue an order. On or about September 13, 1999, the applicant, Brenda Shalla, was discharged from her employment with Times Fiber Canada Ltd. (the “employer”) without notice. The applicant claims entitlement to pay in lieu of notice as well as severance pay. The employer asserts that as she was “guilty of willful misconduct or disobedience…that has not been condoned by the employer” (within the meaning of sections 57(10)(c) and 58(6)(c) of the Employment Standards Act (the “Act”)), no such entitlement arises.
The applicant was discharged for reasons which included repeatedly failing to wear her safety glasses. Although there are some differences in the versions (as testified to by the applicant and by Barry Holt, the employer’s Production Manager responsible for terminating the applicant), the broad outlines of the events culminating in the discharge are not disputed. In particular, there is no issue that the applicant was explicitly instructed on a number of occasions in the last week of August to wear her safety glasses and was warned that a failure to do so would result in disciplinary measures. Similarly, neither was it disputed that on Sunday September 5, 1999, she received a two day suspension for having again failed to wear her safety glasses. The suspension was served on her next two scheduled working days, Wednesday September 8, 1999 and Thursday September 9, 1999. She was scheduled to return to work on Monday September 13, 1999.
On the Sunday prior to her scheduled return to work, the applicant attended at the plant (which operates 24 hours a day, seven days a week). She brought two “visitors” to the plant (one of whom was Mr. Morin who represented the applicant in these proceedings). The purpose of the visit was to allow Mr. Morin (who apparently runs a rubber recycling business) to view the “comfort mats” in place in aisles on the plant floor. The applicant thought that Mr. Morin might be able to assist the company in securing more durable and less costly mats. It does not appear that Mr. Morin’s input was expected to result in any commercial relationship between him and the company, but rather that he might be able, through the applicant, to provide information to the company about suppliers who could provide a more desirable product. No issue was raised with respect to the bona fides of the applicant’s motives in this regard and I accept that her efforts were in fact conceived, at least in part, to benefit the company. But while the company did not challenge those motives, they did have concerns about the “visit”. First, the company asserts that the visit was contrary to its policy regarding visitors in the plant. However, whether or not that is the case, the company did not rely on this alleged violation before me to support its claim that the applicant had been guilty of willful misconduct and accordingly, I need not consider that aspect of the case any further. The company did, however, rely on the fact that during the course of this visit neither the applicant nor the visitors were wearing the appropriate safety equipment and, in particular, the applicant once again failed to wear her safety glasses.
During the course of this brief visit the applicant and the visitors encountered the plant manager (who did not testify before me). And while the applicant’s version of what specifically transpired differs from the second hand account Mr. Holt offered on behalf of the company, there is no dispute that the lack of safety equipment and safety glasses was the subject of some part of the ensuing discussion. On the following day after the events had been reported to him, Mr. Holt terminated the applicant’s employment. There is perhaps some irony in the fact that on the day she was terminated, the applicant had secured and was wearing her new safety glasses on the job. Indeed, on her version of events she worked virtually her entire 12 hour shift (with those glasses on) before Mr. Holt effected her discharge; Mr. Holt’s evidence was that the discharge was effected only an hour or two into the applicant’s shift. He did not dispute that she was wearing her glasses on that day. The discharge, however, was a result of events which culminated in the “visit” the previous day.
Some of the context in which these events unfolded is highlighted by the applicant. In final argument it was acknowledged that the applicant had in fact clearly violated plant safety rules. However, the asserted inconsistent application of those rules and the claimed improper singling out of the applicant in their enforcement was pointed to. It is not necessary for me to review all of the evidence in that regard. It is sufficient for our current purposes to observe that, at least until shortly before the applicant’s discharge, the plant rule requiring eye protection to be worn in all areas of the plant appears to have been regularly ignored by employees without significant consequence. Indeed, some of the evidence we heard about the workings of the Health and Safety committee suggests that the rule was more honoured in its breach. It appears, however, that sometime in the spring of 1999 efforts were made to effect what was described (no doubt exaggeratedly) as a “crackdown”. Despite that, however, I am not persuaded that the enforcement of the policy was either uniform or necessarily fair. Apart from the circumstances involving the applicant and one other marginal exception, there was no evidence of any significant disciplinary action having been taken against employees for violation of the rule. And while there is perhaps insufficient evidence before me to definitively conclude whether that state of affairs reflects the effectiveness of the “crackdown” or merely displays a continuing uneven enforcement, I am prepared to assume that the latter provides greater explicative power. In that regard, it is difficult to ignore the applicant’s unchallenged evidence that on the day of the visit, her discussion with the plant manager took place in full view of at least one other employee who was on the job without safety glasses and who suffered no consequences as a result of that transgression.
Other considerations which the applicant views as significant relate to her reasons for not wearing the glasses. In part, her reluctance stemmed from the fact that she felt her glasses, although not impossible to wear, were ill-fitting and uncomfortable, a state of affairs which she claimed to have brought to her employer’s attention during the course of the various warnings. She also claims to have advised the employer that she intended to (as she ultimately did) procure a new pair of prescription safety glasses to facilitate compliance with the rule. She did not dispute, however, that in the interim she had been instructed to continue to wear her existing glasses.
Having considered the evidence and the submissions of the parties and despite the apparent unfairness of the result, I am not persuaded that it is appropriate to disturb the decision of the Employment Standards Officer in this case.
The brevity of these reasons will not likely belie the difficulty I have had in arriving at this conclusion. But while I am certain that various considerations of equity weigh heavily in the applicant’s favour, I am still unable to conclude that a basis for her appeal has been made out. I have no equitable jurisdiction in this matter. I am not empowered to determine whether there was “just cause” for the applicant’s discharge or whether the penalty imposed was appropriate in the circumstances. And even accepting that the safety rules may have been unevenly enforced to her detriment, it is not clear to me (and neither was it specifically argued) that their lax application to other employees establishes that the applicant’s conduct has been condoned by the employer. Similarly, neither is this a complaint alleging a violation of some other public statute (such as the Labour Relations Act, 1995 or the Human Rights Code) where, in the context of a reverse onus on the employer, inconsistent treatment of various employees might serve to illuminate the true motive for the employer’s impugned conduct.
Despite the context in which these events transpired, certain facts are indisputable. The applicant consistently and repeatedly breached the requirement to wear safety glasses in the plant. She was warned a number of times and advised that further violations would result in more serious discipline. When she persisted, she was suspended and was explicitly warned that any further infractions would result in dismissal. She offended the rule once again and she was discharged.
Whatever may be legitimately claimed about the fairness of the discharge or the uneven application of discipline, the only issue before me is whether the applicant was “guilty of willful misconduct or disobedience…that has not been condoned by the employer” such as to disentitle her to the statutory entitlement to termination and severance pay. The Employment Standards Officer concluded that she was so disentitled. Not without some reluctance, I am unable to arrive at a different conclusion.
This appeal is dismissed.
“Bram Herlich”
for the Board