Worker received no warnings for breaching mask policy; apologized after outburst
A worker’s refusal to follow a reasonable and lawful mask mandate in the workplace and his use of profanity in a disciplinary meeting didn’t justify his dismissal, the Alberta Labour Relations Board has ruled.
T & T Disposal Services operates a waste and recycling collection services company in Okotoks, Alta. The worker was a driver for T & T.
In early 2021, T & T implemented a masking policy in response to the COVID-19 pandemic. The policy made face masks mandatory in all indoor workplaces. The company posted signs all around its property outlining the policy and a similar municipal bylaw, along with a public health order requiring indoor mask-wearing.
Drivers weren’t required to wear a mask when they were in their own vehicles or outside and mechanics didn’t have to wear them in the shop because the shop was considered a large enough area to allow distancing and masks could fog up safety glasses.
T & T had regular safety share meetings in which mandatory masking was discussed. The worker signed attendance sheets confirming that he was at these meetings.
Progressive discipline
T & T’s health and safety management system program manual required employees to wear “all required and additionally appropriate PPE” and set out a four-step disciplinary process for safety violations – verbal warning, written warning, final warning with unpaid suspension, and termination of employment.
The worker disagreed with the masking policy, as he felt that the disposable masks offered by the company weren’t effective, although he didn’t bring his own masks. He also felt it was unfair that mechanics in the shop were exempted from the policy.
The worker frequently said that he refused to participate in the company’s mask “experiment” and his manager informally requested him multipole times to put his mask on. On Jan. 14, 2022, the worker refused his manager’s request to wear a mask at a safety meeting, so the manager took the matter to upper management.
On Jan. 18, management met with the worker with a written warning prepared. However, the worker started by saying if the meeting was about masking, “it was a hill he was willing to die on.” A senior manager commented that he was amazed some people “would rather starve than wear a mask,” which the worker took to be a threat. He swore at the manager but immediately apologized.
The worker then left the meeting, slamming the door and without being given the written warning. According to the worker, he left because he needed to calm down and he closed the door firmly, but didn’t slam it. He later texted an apology to his manager.
Just cause termination
On Jan. 20, T & T terminated the worker’s employment for just cause. The termination letter stated that the worker had refused to follow the masking policy and indicated that he wouldn’t follow it going forward. It also said that his behaviour in the meeting constituted “insolence and insubordination” that damaged the employment relationship beyond repair.
The worker made an employment standards complaint claiming that he was owed pay in lieu of notice of termination. An employment standards officer ordered T & T to pay the worker more than $6,000 in termination pay plus a 10-per-cent order of officer fee.
T & T appealed the officer’s decision, maintaining that it had just cause to terminate the worker’s employment and therefore didn’t owe statutory notice or pay in lieu of notice. The company also argued that the worker repudiated the employment contract as he made it clear that he had no intention of ever complying with the masking policy, which was a requirement for employment.
The board noted that an employee repudiating an employment contract is different from dismissal for misconduct and occurs when an employee refuses to perform an essential part of their job duties in the future. In this case, the board determined there was no repudiation, as there was no “clear and unequivocal intention to terminate the employment relationship.” The worker’s position was that he didn’t think the masks offered by T & T were effective and he may have worn a better mask at work had one been provided.
In addition, the worker wasn’t told that his job was in danger if he didn’t wear a mask, which might have changed his behaviour, said the board, adding that refusing to wear a mask didn’t prevent the worker from performing the essential duties of his job that involved driving a truck on his own without a mask.
The board found that the grounds for termination were the worker’s mask refusal and conduct at the meeting. However, for there to be just cause, the worker must be warned that continuation of his misconduct would result in termination and, for a single act to warrant dismissal, it must be severe to the point that continued employment isn’t viable, the board said.
No warnings before termination
The board also found that the masking policy was reasonable and unlawful, particularly since it applied only to indoor workplaces. However, the worker was only given informal verbal requests to wear his mask with no indication of consequences – T & T didn’t follow its own progressive discipline as set out in its health and safety program manual, said the board, noting that the written warning drafted by the company wasn’t delivered at the meeting.
“The informal nature of the [company’s] previous responses to the [worker’s] non-masking would suggest that it was not a serious issue,” said the board. “The evidence was that the [worker] continued to express he would not follow the masking ‘experiment’ and he continued to show signs of non-compliance, but it was left or dealt with lightly up until the time of the meeting.”
In addition, the board found that the worker’s conduct at the meeting didn’t constitute insubordination to justify termination. The swearing at the manager occurred in a closed meeting and there was no evidence it undermined the manager’s authority, while the worker apologized directly and later in a text, the board said. The board also noted that there was “an element of provocation” when the manager made a comment about people who would rather starve than wear a mask.
The board determined that the worker’s conduct at the meeting was “unprofessional and inappropriate” but not sufficiently egregious to justify termination. As a result, the worker was entitled to pay in lieu of statutory notice, said the board in confirming the employment standards officer’s order. See T & T Disposal Services Ltd. v. Leask, 2024 ABESAB 14.
