Clerk didn’t take it; did she leave it?

Clerk storms out when employer tells her to cover earlier shift or nothing

This instalment of You Make the Call looks at a case where an employee refused her manager’s request to fill in for an absent co-worker on a different shift and the resulting confusion over her status.

Dionne Malabre was employed as a biller and data entry clerk with Watkins Canada Express Inc. During her five years with the company, she had occasionally filled in for other employees who were on leave and was considered a good employee. In September 2005, Malabre had been temporarily reassigned from her regular 9 a.m. to 5 p.m. shift to an afternoon shift where she was training a new employee.

On Sept. 16, 2005, Malabre’s managers met with her to ask her to fill in for another employee on bereavement leave. Another employee had been filling in but had to move back to his original shift to accommodate medical appointments. The new position would require Malabre to move to a shift which began at 7:30 a.m.

Malabre declined to take the new position without giving a reason why, though it later came to light it was because she had to get her son off to school in the morning. When she refused the new position, one of her managers told her to “take it or leave it.” Malabre took this to mean if she didn’t accept, she would be let go. After leaving the manager’s office in frustration, she told the company’s top executive she had been fired.

After the executive heard what had happened, he contacted Malabre’s manager, who denied he fired her but said there were no other positions available except the one he had just offered her. The executive told Malabre she had not been fired and should return to her work station, but instead she went home.

When Malabre called the next day, she was not asked to return to work but she did not ask to return either. The company assumed she had walked out after refusing the temporary assignment and supplied her with a record of employment which stated she had quit her job.

Malabre claimed she was surprised at the record of employement as she hadn’t intended to quit. Watkins claimed she wanted it changed so shecould collect employment insurance.

You Make the Call

Was the employee fired for refusing to fill in for her absent co-worker?
Did she quit when she refused the position and left work?

If you said she was fired, you’re right. The adjudicator found Malabre could only assume she was being fired after her manager used the words “take it or leave it.” She was not given the option to return to either her regular job nor the training position she had been performing. She was told the proposed fill-in position was the only job available for her at that time.

The adjudicator also found Malabre’s actions after leaving the office were not those of someone who quit. Visiting the executive and calling the office the next day showed she did not intend to quit.

The adjudicator noted there must be “clear and unequivocal” evidence it was the employee’s intention to resign. However, Watkins management didn’t make any attempt to clarify whether she had actually resigned after leaving the office in a frustrated and emotional state. Neither the managers nor the executive clarified with her during later conversations whether she had quit. Also, considering Malabre had been a good employee for five years and often accommodated management’s requests to fill in at other jobs, the ultimatum was unfair, particularly since there were other employees capable of taking over the position.

The adjudicator found Malabre was summarily and unjustly dismissed and ordered Watkins to reinstate her to her original biller/data entry clerk position.

“In my view it would have been reasonable for the company to allow her to return to her work station on this one occasion,” the adjudicator said.

For more information see:

Malabre v. Watkins Canada Express Inc., 2006 CarswellNat 3893 (Can. Adjud. app. under Can. Lab. Code).

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