Manitoba worker's claim for wages in lieu of notice dismissed

Worker disobeyed directions, agreed that employment relationship was irreparable

Manitoba worker's claim for wages in lieu of notice dismissed

An employer had just cause to dismiss a worker who disobeyed instructions one month after a similar incident led to a disciplinary letter, the Manitoba Labour Board has ruled.

“The employer had clearly outlined their expectations to this employee in writing, and it disciplined him for not meeting those expectations,” says Mark Alward, an employment lawyer at Taylor McCaffrey in Winnipeg. “Without that, I don't think that the termination is upheld -that idea of progressive discipline is very important for employers.”

The employer is a numbered company that operates a gas station and car wash in BC. It hired the worker in 2019 to work in the gas station’s store.

The worker frequently worked the evening shift and it was normal practice to close the car wash about 15 minutes before the store closed. The worker performed closing duties that normally took about 15 to 20 minutes after closing the doors.

On a regular basis, a maintenance crew came to the station to work on the car wash and ensure it was running properly. Initially, the crew had their own keys to access the car wash, but when new management took over in May 2021 the store retained the keys. As a result, when the crew arrived the staff member who was working in the store had to provide the keys.

Worker asked to stay late

On July 21, 2021, the maintenance crew arrived 30 minutes before the gas station closed. The worker contacted his manager as he was concerned that they had arrived so late. The manager advised him to grant them access and he would be paid for any additional time he spent waiting for them to finish.

The next day, the company drew up a letter of reprimand for the worker’s initial reluctance to grant access to the maintenance crew. The letter stated that his failure to co-operate “ended up bothering your manager at night and she had to come because you did not want to understand the situation.” It further warned that a failure to follow instructions in the future could lead to dismissal.

The worker denied receiving the letter of reprimand from the company, although the manager had a discussion with him about granting access to the maintenance crew. The worker acknowledged the discussion, but he claimed that it wasn’t disciplinary in nature. He told the manager that he had stayed 45 minutes after the end of his shift and, although he was paid overtime, “this could not happen again.”

On Aug. 25, the company became aware of an issue with the car wash that required immediate attention. However, the worker didn’t know there was a problem or that the maintenance crew had been sent.

Leaving work early and refusing work normally assigned to junior employees was insubordinate but not serious enough for dismissal, an arbitrator ruled.

Worker wanted to go home

According to the worker, the maintenance crew arrived at 9:05 p.m., five minutes after the store closed. They knocked on the door and requested access to the car wash, but the worker said no because he was going home and they should come back during regular business hours.

The worker called his manager to let her know what had happened. She told him to grant them access and she would come to the store, as it should only take 15 to 20 minutes for them to do the work. According to the manager, it was slightly before 9 p.m.

The maintenance crew contacted the company, which then called the worker to ask why he wasn’t letting them in. The worker said that the store was closed and he was going home, and the company asked him to stay. The worker refused, so the company told him he was disrespectful and he was being dismissed.

The manager arrived at the store at 9:20 p.m. and the worker had already left – the alarm log indicated that he had left at 9:14, shortly after his calls with the manager and the company. She granted access to the maintenance crew, who completed their work in about 20 minutes. The manager locked up the store and engaged the alarm at 9:44 p.m.

A worker’s 16 years of service spared him from termination for insubordination.

Tough spot for worker

Although the worker didn’t follow directions, the company put him in a challenging position, says Alward.

“[The decision] is not clear on if there would be overtime liability, but employees are often very hesitant to go into overtime because they think they're going to get in trouble for it,” he says. “And this employee had clearly set out that he was not able to stay past his shift time for whatever reason, and the employer does not have the ability [under the Manitoba Employment Standards Code] to require the employee to work overtime or work beyond the scheduled shift.”

“And then it doesn't really make a lot of sense to me why the maintenance folks are showing up right at the very end of the day,” he adds. “I understand that they had other duties and responsibilities, but it seems to me if the employer would have simply communicated effectively with the employee, they could have avoided this situation from occurring in the first place.”

The company considered the worker’s actions to be insubordinate, negligent, and potentially damaging – if the crew hadn’t been able to address the issue with the car wash, it could have resulted in delays, loss of business, and hurt its reputation with corporate.

The worker filed an employment standards complaint for unpaid wages in lieu of notice of termination. An employment standards officer dismissed the complaint on the basis that his employment had been terminated for just cause.

Insubordination is usually considered serious misconduct that strikes at the heart of the employment relationship.

Miscommunication, not insubordination

The worker appealed, arguing that he was not insubordinate and had previously informed his manager that he could not stay at work past his regular hours. He added that the company should have informed him that the maintenance crew was coming to fix an urgent issue and that his manager would come to relieve him, and he would have waited for her.

The worker agreed that there was an irreparable breach of employment, but he maintained that he was entitled to wages in lieu of notice.

The board noted that an employer’s dissatisfaction with an employee’s performance “is generally not enough to constitute just cause for dismissal without notice” and the employer must be able to prove “some serious misconduct or substantial incompetence” for which dismissal would be proportionate.

The board also noted that the employee was responsible for performing closing duties at the store and there was no concern that he wouldn’t be paid for closing duties or overtime if he provided access to the maintenance crew after closing.

The board found that the worker failed to follow his manager’s direction to provide that access and left the store instead. It was a key part of his position for the company to be able to trust him to follow direction since he worked primarily alone, but he breached this trust, said the board.

An Ontario worker’s aggressive behaviour wasn’t a threat, but his lack of remorse was worthy of a suspension, an arbitrator ruled.

No remorse

The board also found that the worker failed to show any remorse for his actions and maintained that it was his right to leave at the end of his shift. This amounted to negligence and disobedience deserving of discipline, said the board.

The board noted that even if the worker didn’t receive the disciplinary letter from the previous incident, his manager discussed it with him and he ought to have known he was expected to grant access to the maintenance crew and follow directions. His disobeying of direct instructions to do so from his manager and corporate, even when his manager said she was on his way, was serious misconduct. Factoring in that he also didn’t appreciate the severity of his actions, the board determined that the company had just cause to terminate the worker’s employment. The worker’s complaint was dismissed.

The worker’s belief that he had done nothing wrong was key to establishing just cause for dismissal, says Alward.

“In these sorts of situations, the employee recognizing and acknowledging that they made a mistake is very important,” he says. “This employee did not do that.”

“If I'm the employer in that situation, and the employee is agreeing that there is an irreparable breach of employment, all I have to do now is show that there were grounds for discipline and that termination is within the realm of reasonable disciplinary responses.”

See 1026204 B.C. Ltd. v. U.D., 2022 CanLII 134578.

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