Employee said he couldn't do job employer wanted him to do because of conflicts with picking up his kids
A British Columbia worker who refused to do a job with overtime hours because of his parental duties resigned his position and wasn’t dismissed, an adjudicator has ruled.
Frank Wagar was a picker operator for Pavlis Trucking, a road carrier and oilfield service company based in Dawson Creek, B.C. Wagar joined Pavlis in 2005 and was responsible for operating picker trucks at oil and gas job sites.
In the fall of 2012, Wagar’s marriage broke down and a joint custody agreement for his two children was reached in which each parent would have the children in alternating weeks. Wagar’s job required overtime on occasion and when this happened, he had difficulty. Sometimes he would start work later than usual after dropping his children at school and made Pavlis aware when he had his children he couldn’t work late. Pavlis accommodated his late arrivals by having another employee load and preprare Wagar’s truck before he arrived on mornings he had his children.
Late in 2012, Wagar decided to find work with more regular hours. He suggested he work part-time as a mechanic in the company shop. Wagar had no formal mechanic qualifications but had some skills, so Pavlis agreed to investigate the feasibility of his proposal.
Pavlis decided to allow Wagar to perform occasional shop work but wanted him to continue operating the picker truck when he didn’t have his children. Wagar agreed and an arrangement was made in which worked in the shop when he had his children and operated the picker truck when he didn’t. Sometimes he would operate the picker truck during the weeks he had his children, but his hours were kept to regular duration.
Pavlis considered Wagar to be primarily a picker operator and when picker work was to be done, that was his primary responsibility.
In March 2013, Wagar slipped on ice going out to his truck and cracked a rib. He went on workers’ compensation. The company’s owner was initially upset he was unable to work, but he was able to take the necessary time for recovery.
When Wagar returned to work in late March, he worked mostly on a picker truck. On March 29, he had to work overtime on a day he had to pick up his children, so he arranged for his mother to do so. The job wasn’t finished and Pavlis wanted him to complete it the next day — a Saturday — but Wagar refused. Wagar indicated he needed regular hours to be with his family and to cancel the next course in his picker certification studies. On April 4, told Pavlis he could no longer run the trucks because it was interfering with his parental duties. Pavlis’ owner told him “then there is nothing else for you at Pavlis.” Wagar claimed the owner told him to pack up and leave, but the owner denied saying this. Wagar became angry and left the property.
Wagar later called the company to say he had been fired and needed a record of employment (ROE). Pavlis issued an ROE stating Wagar had quit. Wagar filed a complaint of unjust dismissal, arguing Pavlis had terminated his employment.
The adjudicator preferred the owner’s version of the final discussion, finding Pavlis had no motivation to terminate Wagar’s employment as he was one of its best picker operators and the company had accommodated Wagar’s family responsibilities to that point. The adjudicator found the owner did not tell Wagar to pack up and leave, but rather told him if he wasn’t going to run the picker trucks, there was no alternative job. This left it up to Wagar to decide “how serious was his resolve that he would no longer operate the picker trucks,” said the adjudicator.
The adjudicator found Wagar’s intention to resign was clear when he said he would not operate the picker trucks any longer, as well as the request to cancel his certification course.
