Worker may have said he quit in heat of the moment, but soon clarified he didn't
An employer constructively dismissed a worker when it suspended him for one week and assumed he quit after an emotional outburst, the Alberta Labour Relations Board has ruled.
G Force Oilfield Services operates an industrial cleaning service for the oilfield industry. The company is based in Bonnyville, Alta.
The worker was hired in 2014 and became a field supervisor in 2017. The only discipline on his file was a written warning for not signing a work permit in 2016.
When the worker was first hired, he had to move to Alberta from Ontario. G Force provided him with pay advances to help with the moving expenses and the worker paid back a portion of the amount of the next few years, but not all of it.
In September 2020, a company called Comec subcontracted G Force to carry out cleaning services at a plant owned and operated by Husky Oil.
A BC arbitrator found that a worker who wrote a letter of resignation and said he quit did not show an objective, continuing intention to quit.
Cleaning assignment
G Force was tasked with cleaning the interior of a large vessel, which had to be done before the site could resume operations.
The worker was the supervisor of the night shift and he reported to the day shift supervisor. The site supervisor instructed both shift supervisors on the process to be used to clean the vessel, but during the night shift the worker discussed a different method of cleaning with a Husky employee. The worker then asked the day shift supervisor to bring certain equipment to the site to be used to clean the vessel, although the day shift crew didn’t arrive until after 6:30 a.m., although it was supposed to change over right at 6:30.
The site supervisor arrived at the site early in the morning to discover that the vessel had not yet been cleaned, which upset him. He expressed his displeasure when the day shift supervisor arrived.
The day shift supervisor found the worker in a trailer that served as a portable office for both G Force and Comec. The worker was unhappy that the day shift was late and stormed out of the door. The day shift supervisor followed him and there was a heated exchange outside the trailer.
The worker drove away in his truck with his crew members inside. The day shift supervisor felt that the worker drove recklessly, although the worker later denied exceeding the speed limit.
The fact that an employee says they resigned doesn’t always mean the employment relationship is at an end, according to two employment lawyers.
No access to site
The Comec site supervisor spoke with the day shift supervisor again. He wasn’t aware of the conversation the worker had with the Husky employee and thought that the worker didn’t clean the vessel as instructed. He told the day shift supervisor that the worker was not to be allowed back on the site.
The day shift supervisor texted the worker to tell him that he was “off for a week suspension” and that he should drop off his truck and company cellphone. The remaining work at the plant was scheduled to be completed within the week, although there were other sites to where the worker could have been reassigned.
After seeing the text message, the worker dropped off the truck at the G Force office. An office administrator was the only one there and the worker showed her the test. The worker collected some of his possessions and left. The administrator thought that the worker said he quit, so she advised management of it. The worker denied saying he quit.
On Sept. 21, G Force issued a record of employment (ROE) to the worker saying that he had quit. The worker texted management to say that he didn’t quit his job and asked for a meeting, but there was no response.
An unfair suspension or reduction in salary can create an intolerable situation for an employee, leading to a valid constructive dismissal.
Requested severance pay
In January 2021, the worker texted his supervisor asking about his severance pay. The supervisor said they had told management that he had quit and he still owed G Force money. The worker said he hadn’t quit and that he owed $2,000, so his severance should be “6400 severance – 2000 owed, 4400 severance.”
G Force didn’t pay the worker any severance, so he filed an employment standards complaint alleging constructive dismissal from the one-week suspension. An employment standards officer ordered the company to pay the worker more than $7,000 pay in lieu of notice of termination plus a 10-percent order of officer fee.
G Force appealed, arguing that the worker quit his employment or, in the alternative, it had just cause to dismiss him for insubordination for not completing the vessel cleaning and his behaviour towards the day supervisor, and the reckless manner in which he drove the truck away from the Husky plant.
The company also said that $2,000 that the worker still owed the company should be deducted from any order to pay.
A seasonal worker who was sent home with no expected recall was constructive dismissal, a Nova Scotia court ruled.
Suspension not allowed
The board’s appeal body found that there was no written employment contract that explicitly permitted unpaid suspension as a form of discipline. It also noted that it was the site supervisor from Comec who directed that the worker was not to access the Husky Oil site, while G Force had work at other locations to which it could have assigned the worker.
As a result, the board found that the suspension was a unilateral change to the worker’s employment contract. In addition, it was for one week – a significant period of time – and the worker was advised to return his work truck. Given that the worker was a field supervisor with only one minor instance of discipline on his record, the suspension was not reasonable, said the board in finding that the worker was constructively dismissed.
The board also found that the actions of the office administrator made it likely that the worker made a comment to her that he quit, but it was in the heat of the moment when he was stressed. In addition, he clarified soon after in a text that he had not quit and he continued to assert that in text messages in January 2021, said the board, adding that G Force should have taken steps to clarify the worker’s intention.
As for just cause, the board disagreed that there was any. The worker had received conflicting directions on how to clean the vessel, so he hadn’t actually refused to do it. There was no evidence of what was said in the heated exchange with the day supervisor, or how reckless the worker was in driving the company truck, so neither of those held up as supporting cause for dismissal, said the board.
Finally, the board disagreed with G Force that $2,000 should be deducted. The worker acknowledged that he still owed the money, but his texts indicated that he would pay it when G Force provided severance pay. Since the company didn’t pay anything, there was no authorization to deduct the $2,000, said the board in upholding the order to pay.
