Ontario Labour Relations Board
0739-00-ES Juan Barrueta, Applicant v. Front End Specialists and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 40011026
BEFORE: Bram Herlich, Vice‑Chair.
APPEARANCES: Chris Fiore, Eugenia Cappettero and Juan Barrueta appeared on behalf of the applicant; Arsenio Portuondo and Cathy Portuondo appeared on behalf of Front End Specialists; Mircho Mirchev appeared on behalf of the Ministry of Labour.
DECISION OF THE BOARD; May 3, 2001
This is an application to review the decision of the Employment Standards Officer to not issue an order in this matter.
The applicant was discharged from his employment without notice on or about July 5, 1999. Chief among the reasons advanced by the employer for the termination, was the applicant’s failure, despite prior explicit warnings as to the consequences which would flow, to report for work as scheduled on Saturday July 3, 1999. The context in which that failure to report occurred is said by the employer to have constituted “wilful misconduct or disobedience or wilful neglect of duty” within the meaning of section 57(10)(c) of the Employment Standards Act The Employment Standards Officer accepted and adopted that view and consequently declined to issue an order. The applicant now seeks to have me issue an order directing the payment of termination pay in lieu of notice.
I heard from a number of witnesses in this matter. The applicant testified on his own behalf. The principals of the company, Cathy and Arsenio Prtuondo, as well as their daughter, Crystal Long, testified on behalf of the employer. And, finally, Anura Jayasinghe, another employee of the company testified for the employer.
There are irreconcilable conflicts in the evidence of the applicant and all of the witnesses who testified for the employer. Much of the testimony before me was filtered, in one fashion or another, through the medium of translation. The applicant testified through a Spanish interpreter. I pause to note that that interpretation was provided by a person associated with the same organization as the applicant’s representative. While the Ministry initial raised some concerns about the propriety of that arrangement, the parties ultimately agreed to proceed in that fashion. That agreement was facilitated, in large measure, by the applicant’s undertaking not to subsequently impugn the sufficiency of the translation (an occurrence the parties had apparently experienced in a prior context). In addition, two other witnesses (Messrs. Portuondo and Jayasinghe), while testifying in English, demonstrated a somewhat incomplete mastery of what was obviously not their first language. Of course notwithstanding these particular frailties in the evidence, I must still assess the credibility of all of the witnesses who testified. I have done so on the basis of the usual factors including: general demeanour, the witnesses’ apparent ability to resist the tug of self-interest and the manner in which their accounts withstood the rigours of cross-examination. In attempting to evaluate and synthesize all of the evidence before me I have also considered what versions of events seem most likely in all of the circumstances.
In this regard, I point to a number of the central conflicts. All four of the employer’s witnesses testified that, in one fashion or another, the applicant, in the days leading up to his discharge, had announced ahead of time that he would not be attending his regularly scheduled shift on (one or the other of) Friday July 2, 1999 or Saturday July 3, 1999. He wanted to spend the time with his son. The applicant flatly denied ever having made any such statements. It is not disputed, however, that the applicant did not report for work on Saturday July 3rd as scheduled. And even on his view of the facts (which is disputed by the employer), he did not call in to advise of his absence until approximately 4:00 p.m. that day (his start time was loosely identified as being between 3:30 p.m. and 4:30 p.m.).
Filed in evidence before me is a note from Dr. J. Castillo dated July 3, 1999. The applicant testified that in a conversation he had with Arsenio Portuondo on that day (a conversation the latter denies ever took place) he advised of the note. Similarly, he testified that when he next reported to work on Monday July 5, 1999 he showed the note to Cathy Portuondo. The Portuondos assert that they never saw the note until many months later in the course of the Employment Standards Officer’s investigation. The note is said to provide a satisfactory explanation for the applicant's absence (a conclusion which is not entirely obvious to me).
Essentially, the employer says there were ongoing difficulties of various sorts regarding the applicant’s work performance. Among those was a propensity to fail to report from time to time. As Mr. Portuondo put it, the applicant only wanted to work when he wanted to work. The employer’s busiest days are Friday and Saturday. It uses a small (5-7) number of employees to do service and maintenance work for tractor trailers and large trucks. Employees generally work Monday to Saturday with one day (not usually Saturday) off. It appears that the applicant, for reasons which may not be difficult to imagine, was not particularly enamoured with the requirement of Saturday work. And although there was no written evidence of any prior incidents or related discipline, the employer asserts that the July 3rd absence was neither an isolated nor first-time event. The applicant announced he would not be at work on July 3rd. The employer warned he would be terminated if he failed to report for his regular shift. He did not. He was terminated.
The applicant’s view of events is dramatically different. It also requires some appreciation of his history which involves at least one workplace injury. The applicant required modified duties. And although the employer purported to provide those, there would appear to be some lingering scepticism in the applicant’s mind about the adequacy of those modified duties or, at least the employer’s ongoing willingness to abide by them. Indeed, the applicant’s theory of what transpired includes the assertion that the employer, particularly when it learned of possible future surgery for the applicant, simply opted to rid itself him.
Having had the opportunity to review and consider the evidence of all of the witnesses, I am unable to generally place much confidence in the applicant’s versions of events. Determinations about the credibility of witnesses are and should not be made on the basis of the relative number of witnesses who support disputed versions of events. But all the same, I am simply unable, having had the opportunity to observe the demeanour of all concerned while testifying, to conclude that the witnesses who testified on behalf of the employer were untruthful. On the other hand, I found many of the applicant’s responses to be guarded and less than forthcoming.
I accept that the applicant announced his intention to not come to work on one of Friday July 2,1999 or Saturday July 3, 1999, that he was told that another failure to report for work would be fatal to his employment and that when he did fail to report, he was terminated.
The applicant claims that he was unable to work on the Saturday because when he woke up that morning (having worked the previous night) he was in too much pain to work. He attended at his doctor at about 9:00 or 10:00 a.m. and secured the note that was filed into evidence. Even if that was true (and it may well be more likely that despite its apparent date, the note was procured later), I accept the employer’s evidence that it was not shown this note until months later. I also accept Mr. Portuondo’s assertion (in response to applicant counsel’s suggestion that the decision to terminate had been made without giving the applicant an opportunity to explain his absence) that had there been such note (or presumably some good medical reason for the applicant’s absence), there would have been no termination.
However, even when I consider the note filed in evidence before me, it is less than evident that it provides any clear explanation or prescription for the applicant to not work on July 3, 1999. Indeed, it asserts that the applicant could return to light duties on the Monday following. Despite the applicant’s self-serving assertions to the contrary, there is simply nothing in the note which explicitly indicates the applicant’s inability to work on the Saturday in question. Indeed nothing in the note even discloses the doctor’s awareness that Saturday was a regular working day for the applicant. It is difficult to square the contents of the note with the applicant’s repeated suggestion that the doctor had given him the day off.
I am persuaded that the most likely manner in which events unfolded is consistent with the view advanced by the employer. This was not the first time that the applicant failed to report for work. He did so this time despite a clear warning that to do so would result in termination. I am satisfied that, in the circumstances of this case that amounts to conduct which triggers the exception to entitlement to notice of termination or pay in lieu.
This application is dismissed.
“Bram Herlich”
for the Board