Worker was reckless but his misconduct wasn't 'wilful neglect of duty': Court
An Ontario employer had just cause to fire an employee who was careless and had an attitude problem, but the employee’s conduct wasn’t reckless enough to warrant denying him termination and severance pay, the Ontario Superior Court of Justice has ruled.
Stephanus Oosterbach, 55, was a machine operator for FAG Aerospace, a manufacturer of bearings for the aerospace industry in Stratford, Ont. As part of Oosterbach’s job, he had to be on the lookout for any substandard parts, as precision was of the utmost importance to the industry. Careful records were kept of any problems so they could be traced and remedied.
Because of the need for care and precision, FAG had an attendance and absenteeism program to track absences and coach employees who had attendance problems, since absences led to scheduling issues that could negatively impact production. FAG also had a progressive discipline policy that involved four steps of increasing seriousness from a written warning to a suspension. Four instances of discipline within a 12-month period warranted dismissal.
Over several years since his hiring in 1990, Oosterbach received several disciplinary warnings. On March 20, 2008, he received his fourth since August 2007. The warnings were for making pieces that didn’t conform to specifications (which delayed production), falling asleep during his meal break and running over the time, showing up late for his shift with no reason and once again producing defective parts. The latest instance involved the production of 77 pieces as a result of a measuring device not set properly. Oosterbach acknowledged he failed to control the quality of his work and misread the measuring device. A few days later, on April 1, 2008, Oosterbach was fired.
In addition to the termination for cause, FAG refused to pay Oosterbach statutory termination and severance pay because it accused him of “wilful misconduct, disobedience or wilful neglect of duty,” which was allowed under Ontario employment standards legislation.
Oosterbach sued for wrongful dismissal as well as his statutory termination and severance pay.
The court heard evidence that Oosterbach had received other warnings for his work performance and absences. He had received several counselling sessions that stressed the importance of good attendance at FAG but he didn’t seem to improve.
The court found FAG properly followed its progressive discipline policy and Oosterbach had several opportunities to improve his performance and save his job. However, he displayed “a casual attitude towards the seriousness of the misconduct,” said the court, and FAG demonstrated it had just cause for dismissal.
However, the court didn’t feel Oosterbach’s conduct could be classified as wilful to the point that he should be denied termination and severance pay. It found he had an attitude problem but his misconduct wasn’t intentional and didn’t rise to the level that it was “without regard for the outcome or consequences.”
