Termination of employment 'shouldn't be an impulsive decision': lawyer
“If you're going to terminate an employee’s employment, make sure that you're not doing it out of anger or frustration - it shouldn’t be an impulsive decision, it should be a carefully considered decision that you make when you're calm and as rational as possible, because you have to expect that you're going to be stuck with the decision to terminate.”
So says labour and employment lawyer Mark Alward of Taylor McCaffrey in Winnipeg, in reference to the Manitoba Labour Board’s dismissal of a worker’s appeal seeking wages in lieu of notice because the board found that the worker abandoned his position following a workplace altercation.
The worker was a mechanic for Adams Brothers Automotive, a Winnipeg auto repair shop, who was hired in 2008. The shop was co-owned by an uncle and a nephew.
The worker didn’t get along with the co-owner who was the uncle. According to other employees, it wasn’t uncommon for them to argue and speak disrespectfully to each other and it was “a regular day” when they were at odds. Part of their dispute was over personal property that the worker stored on the company’s property.
Workplace altercation
On June 14, 2023, the worker had a shouting match with the co-owner. Afterwards, other employees saw him leaving the shop a few times, which the worker said he did to de-escalate things because the co-owner had been “at him” since he had arrived at work that morning. The worker said that the co-owner had harassed him, yelled at him continuously, and shoved him in the back.
At one point after the worker came back into the shop, he went to the kitchen to get a cup of coffee. When he returned to his workstation, the co-owner followed him, continuing to argue with him.
The worker snapped and threw his hot coffee in the co-owner’s face and on his arms, which caused burns. Things continued to escalate until another employee stepped between them to try to calm them down, telling the worker to go home to cool off. The other co-owner also told the worker to leave so he could calm down.
The uncle told the worker that he was fired and he should leave. However, later that day, the company contacted the worker and asked him to return to work. It reached out to the worker the following day as well to see if he would return, but the worker refused. The nephew co-owner took this to mean that the worker no longer wished to work for Adams Brothers and voluntarily resigned.
The worker only came back a month later to retrieve his toolbox.
Claim for termination pay
The worker maintained that he had been terminated and filed an employment standards claim for wages in lieu of notice. The company argued that the worker quit his job and therefore wasn’t entitled to any pay in lieu of notice.
The Manitoba Employment Standards Branch (ESB) dismissed the worker’s claim. The worker appealed, arguing that the uncle co-owner had told him multiple times that his employment had been terminated and he was not to come back. He acknowledged that the company had reached out to him afterwards, but he had already been terminated at that point, he said.
The company agreed that the worker had been terminated, but it asked him to come back. The worker’s refusal was a resignation, the company said.
The board noted that it was an accepted principle in employment law that for an employee’s resignation to be valid, there must be conduct by the employee that clearly demonstrates a subjective intention to quit as well as action by the employee that would lead a reasonable and objective person in the position of the employer to believe that the worker carried out their intention to quit.
In this case, the board found that it was likely that the phrase “you're fired” was said to the worker, but it was clear that the company contacted the worker later the same day and the following day to recall the worker. The worker acknowledged this contact but declined to return, saying that he understood that he had been terminated.
Resignation
The board found that the company demonstrated, on a balance of probabilities, that the worker had not been dismissed but had instead refused the recall to work. As a result, the worker abandoned his employment, said the board.
The board also found that, even if it accepted the worker’s argument that his employment had been terminated, the worker’s act of throwing hot coffee in the co-owner’s face and causing injury was a disproportionate response to the verbal argument and would have been just cause for termination without notice.
“More often than not, when an employer communicates a termination to an employee, it can't just turn around and rescind it,” says Alward. “But I think part of the reason why the board ruled in the way that it did is that even if the worker had been terminated, the company would have had just cause.”
“The company was prepared to continue to keep the worker employed, so I think the board thought that the right thing to do would be to treat it as a resignation rather than an improper termination - the board found that even if the worker was terminated, it was for cause, so he doesn't get anything anyway,” adds Alward.
The board agreed with the employment standards officer’s finding that the worker wasn’t entitled to notice or pay in lieu of notice, and dismissed the worker’s appeal.
Rescinding a termination
Alward cautions that, as a general rule of thumb, if an employer terminates an employee's employment, they’re probably not going to be able to rescind it, but the situation here was unique.
“The sooner that the employer reaches out to the employee to say, ‘I know what we said and what happened, but we want you to come back to work,’ the more chance there is that the rescission of the termination will be allowed,” he says. “But I would never counsel an employer to rely on something like that - you have to assume that when you terminate someone, you're stuck with the termination.”
Although the company successfully defended the employee’s claim, there was the potential for more trouble given how the worker and the co-owner interacted in the workplace on a regular basis, says Alward.
“Don't act like this with respect to your employees, create a respectful and safe workplace,” he says. “If you have a situation where there’s a big shouting match between a manager and employee as part of a normal day, you have severely failed in what you should be doing as an employer.”
