Award for length-of-service compensation overturned after worker refused to return from suspension
The British Columbia Employment Standards Tribunal has denied a request by a worker to reconsider an earlier decision that overturned an award of compensation for length of service because the worker quit.
The worker was a butcher for Columbus Meat Market (CMM), a butcher shop in Vancouver.
On Feb. 17, 2022, the worker was working a typical shift at the shop. About one hour into his shift, one of the shop’s owners told employees that they had to wear a mask while working, as required by a provincial public health mandate. The worker refused and told the owner that he believed that the policy was ineffective and was applied inconsistently.
The worker continued to work for another hour without wearing a mask and, when he took a break, the owner asked to speak with him in his office. The worker continued to argue against wearing a mask, saying that he wasn’t putting “that f---ing mask on again” and he should “go ahead and fire me.” The owner suspended the worker, who immediately left.
About three weeks later, on March 9, CMM issued a record of employment (ROE) stating that the worker’s employment ended due to “shortage of work/end of contract or season.”
Employment standards complaint
The worker filed an employment standards complaint on March 22, alleging that CMM ahd failed to pay him compensation for length of service after terminating his employment due to a change in the conditions of his employment.
CMM emailed the worker on March 27 to say that his employment hadn’t been terminated. It said that it had issued the ROE because it hadn’t heard from him and it wanted to know if he was planning on returning to work.
The next day, the worker emailed CMM to say that he believed his employment wasn’t possible any longer, given the sudden suspension and the lack of communication since. He also argued that he had sent an email on March 11 after the mask mandate had been lifted.
A delegate of the Director of Employment Standards investigated and provided an investigation report with an invitation to provide any further relevant evidence, but the worker didn’t provide anything further. After completing the investigation, the delegate found that the suspension was a deemed termination under the s. 66 of the BC Employment Standards Act (ESA) because CMM reduced the worker’s hours “from 40 hours per week to zero hours.” As a result, the director determined that the worker was entitled to $6,986.88 in compensation for length of service and associated vacation pay.
Dismissal or resignation?
CMM appealed the decision, maintaining that the worker had resigned due to his unwillingness to comply with a public health order and it suspended the worker because of his refusal to wear a mask. When it contacted the worker to plan his return, the worker refused, said CMM.
The tribunal determined that the delegate had erred in law, finding that CMM had just cause to suspend the worker after he refused to comply with the masking policy mandated by public health orders. It accepted the employer's evidence, including that the worker said he refused to put the mask on “so go ahead and fire me,” CMM was obliged to enforce the masking rule from a public health order, and the worker’s failure to follow the direction was insubordination and created a health risk to co-workers and customers.
The tribunal also found that CMM had the right to impose the suspension instead of dismissing the worker and there was no deemed termination under the ESA. The worker’s position that returning to work wasn’t an option constituted a resignation, said the tribunal in overturning the delegate’s compensation award.
The worker filed a request for reconsideration, asserting bias and a failure by the tribunal to observe principles of natural justice or fully consider the facts. He also submitted a statement from CMM’s former office manager, which expressed personal views about the suspension and alleged past misconduct by the employer.
Just cause termination
The tribunal applied a two-stage test to determine whether reconsideration was warranted. It found that the worker hadn’t raised significant questions of law, fact, or procedure to merit a review. In addition, the office manager’s statement didn’t meet the threshold for “significant or serious new evidence,” as the information was available during the original investigation but the worker didn’t provide it when the delegate invited new evidence during the investigation, the tribunal said.
The tribunal also found no evidence supporting the worker’s allegations of bias or procedural unfairness. The worker had the opportunity to submit arguments and evidence during the appeal process and that the tribunal's appeal decision was based on largely uncontested facts. The tribunal’s legal interpretation of the facts wasn’t grounds for reconsideration, said the tribunal.
The tribunal denied the worker’s reconsideration request, confirming its original decision on CMM’s appeal that the worker wasn’t entitled to compensation for length of service because he resigned after being legitimately suspended. See Colin White, 2025 BCEST 13.
