Employer argued wilful misconduct disentitled worker from statutory termination pay
A worker’s request for double pay if she volunteered to work on a statutory holiday was not “extortion” that amounted to wilful misconduct disentitling her to statutory termination pay, the Ontario Labour Relations Board has ruled.
The worker was a registered massage therapist who was hired by Giggly Baby Panda Spa – a company that provides massage services to babies – in August 2020. The company had several locations, but the worker primarily worked in the Mississauga, Ont., location and sometimes in North York, Ont.
The worker usually worked three days per week, but sometimes worked more. One of her workdays was usually Friday until 6 p.m., but she didn’t like driving in the Friday rush-hour traffic. She tried to negotiate trading off her Friday to a colleague, although the colleague was reluctant to trade shifts. The worker communicated with her manager regarding the progress of these discussions and in July 2022 she told the manager that she would no longer work Fridays.
That year, the July 1 Canada Day holiday fell on a Friday. The company had a full list of customers scheduled for that day at its North York location, so it needed to find someone who could work the statutory holiday.
Asked to work on holiday
The owner texted the worker on June 29 to ask if she could work on Canada Day and the worker replied that she could do it if she was paid double time. The owner said that she would already be getting statutory holiday pay so she would already be getting a day’s extra pay, but the worker said that she had plans and she needed an incentive to come in. The owner declined the worker’s proposal.
The company was upset at what it believed was “extortion” or “blackmail” from the worker. On July 5, the owner invited the worker into a small room to discuss the text negotiations from the previous week. According to the worker, the owner approached her in a threatening manner and berated her for trying to extort him, not letting her speak. The owner claimed that he “asked politely about why she had blackmailed him.”
The worker was upset enough by the meeting that she called the Occupational Health and Safety Branch of the Ministry of Labour, Immigration, Training and Skills Development and made a harassment complaint. An inspector conducted a site visit but didn’t make any conclusions.
The day after the inspector visit, July 7, the company presented the worker with a written warning about “blackmailing the owner to cover a shift by asking double pay time after knowing there’s no one to cover the shift.” The worker refused to sign the warning letter, as it also included other complaints about her behaviour.
Termination for ‘blackmail’
The same day, the company terminated the worker’s employment with a letter of termination with the main reason being “blackmailing the business by text message to cover a shift, by asking double pay time after knowing there’s no one to cover the shift, which is extortion, commercial pressure and considered criminal offence.” The termination letter also listed other grounds such as improperly asking for a full day’s pay if she worked a half-day on July 1, and communicating with another employee to give up Friday workdays without consulting management.
The worker filed an employment standards complaint seeking termination pay. An employment standards officer issued an order to the company to pay two weeks’ termination pay plus vacation pay, finding that the worker’s conduct was not wilful misconduct under the Employment Standards Act, 2000, (ESA) that would eliminate her entitlement to statutory termination pay.
The company appealed to the board.
The board noted that the ESA and its regulation only exempted employers from paying statutory termination pay if the employee was “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” The wilful misconduct standard was different from the common law just cause standard, the board said.
Worker not obligated to work on holiday
The board also noted that the worker had not agreed to work on the Canada Day holiday. Instead, she was not scheduled to work and, when the company asked her to, she tried to negotiate a payment that would make it worthwhile for her. The worker was not obliged to work on the holiday, as the business was not included in the ESA as one required to operate on a statutory holiday, said the board.
The board found that the worker’s text messages simply asked if she could receive double time as an incentive to work on the holiday. There was no extortion or blackmail just because she declined the owner’s request to work on the holiday, and it did not constitute wilful misconduct or neglect of duty under the ESA regulation – defined as “consciously and deliberately” engaging in misconduct or refraining from performing job duties, said the board.
As for the other grounds listed in the termination letter, there was no evidence that the worker improperly asked for a full day’s pay for working a half-day on July 1, and the worker had not gone around management in her arrangements to give up Fridays. The worker had in fact kept her manager informed and texted her when she stopped working Fridays, said the board.
“These additional grounds are best understood as an attempt by the employer to add a litany of other complaints against the employee, in order to justify her termination without notice or termination pay as required under the act,” said the board.
The board found that the worker was entitled to statutory termination pay and ordered the company to pay the worker two weeks’ salary and vacation pay. See Giggly Panda Baby Spa Inc. v. Norris, 2023 CarswellOnt 14388.
