Worker disregarded employer's instructions, public health order in returning to work: Labour board
The Manitoba Labour Board has upheld the firing of a residential facility worker who failed to follow self-isolation instructions after returning from vacation during the pandemic.
The worker was employed as a resident manager for a facility that provided residential services for people 55 years of age and up. The median age of residents at the Winnipeg facility was 85.
The worker was hired in June 2015. Over the years, there were some performance-related issues, but the facility didn’t issue any formal discipline. Instead, his manager had informal discussions about his performance.
The worker had a tendency to correct messages sent to him by the facility’s property manager, leading to an incident in which he was disrespectful to her. However, there was no formal discipline from the incident.
On July 5, 2019, the worker was given a written warning for a disrespectful exchange with co-workers and management. The warning stated that “further negative correspondence such has this will be grounds for termination.”
Direction to self-isolate
In December 2021, the worker informed the property manager that he intended to take a lengthy vacation. The property manager reminded the worker to ensure he had sufficient vacation days to cover the 14-day isolation period following international travel that was required by a Manitoba public health order due to the COVID-19 pandemic. The worker replied that “he was good,” which the property manager understood to mean that the worker had the 14 days covered upon his return.
The worker went on an international vacation in January 2022. On Feb. 3, the property manager sent an email reminding him of the 14-day self-isolation requirement.
The worker arrived in Toronto on Feb. 8 and took a PCR test for COVID-19. He then flew to Winnipeg. On Feb. 10, he emailed the property manager informing her of the PCR test and said that, unless the test came back positive, he would return to the office. The next day he received a negative test result and advised that he would be back to work on Feb. 12.
However, the property manager insisted that the worker couldn’t return to the facility until he had quarantined for 14 days as required by the public health order. She suggested they discuss the matter by telephone, but instead the worker emailed her saying that he was exempt from the quarantine requirement because of his negative PCR test. The worker said the ArriveCan website indicated that he could return to work, so if the facility wouldn’t allow him back he was entitled to be paid until it allowed him to return.
Insubordinate behaviour
On Feb. 11, the worker received a report that the worker had been seen coming and going from the facility’s underground parking lot and speaking with a resident. The tenant committee requested “appropriate action immediately to address this issue.”
On Feb.14, the property manager requested that the worker contact her before he returned, and his last day of vacation was recorded as Feb. 4. That day, the worker reported to work and emailed her advising he was ready to work.
On Feb. 15, the facility terminated the worker’s employment for “insubordination and wilful neglect of duty.” The termination letter outlined several reasons for termination, including:
- The worker was “belligerent” towards the property manager when she spoke to him about his vacation request in December 2021.
- The worker disregarded the instructions regarding self-isolation following his vacation.
- The worker failed to comply with the direction not to return to work.
- The worker failed to follow the correct processes for taking time off.
- The worker didn’t respond to a fire inspection report in November 2021.
- The worker didn’t comply with the standard process for overtime a approval.
The worker filed a claim with the Manitoba Employment Standards Branch arguing there was no cause for termination and the facility owed him wages, overtime pay, holiday pay, vacation pay, and pay in lieu of notice. He argued that he followed the self-isolation requirements until he received the negative test results and the employer should have warned him that failing to follow the public health order would result in his termination. He also argued that the other reasons in the termination letter weren’t justified because he had not received formal discipline for years.
The branch dismissed the claim and the worker requested a referral to the Manitoba Labour Board.
No formal discipline
The board found that the facility could not rely on the other issues related to performance and behaviour as he had not received formal discipline or a warning that his job was in danger because of them. His only formal discipline was a written warning in 2019 relating to disrespectful correspondence, the board said.
However, the board agreed that the worker wilfully disregarded the employer’s instructions to self-isolate and contact it before he returned to work, which led to uncertainty and risk for residents that they brought to the property manager’s attention. In addition, the worker interpreted the federal travel guidelines himself but disregarded the provincial guidelines, which he wasn’t entitled to do, said the board, adding that the facility was clear in its communication about the worker’s obligations.
The board determined that the worker’s failure to follow up with the facility when asked before his return to work was misconduct, as was his attendance at work “in wilful disregard of the instructions provided to him.” These were both serious misconduct, as they constituted wilful disobedience of a clear direction from the employer and “an intentional disregard of instructions communicated to him by the employer, which constitutes insubordination.”
As a result, the board found that the worker “acted in a way that is fundamentally inconsistent with his obligations to the employer” that justified termination of employment. The appeal was dismissed. See T.O v. S.A.M. (COLORADO) Inc., 2024 CanLII 36428.
