Worker displayed insubordinate behaviour, negative attitude towards staff, management
An Alberta employer could not fire a worker for just cause when it had already given the worker a final warning for the same misconduct, the Alberta Labour Relations Board has ruled.
The worker was hired in July 2020 by Blakkloud Hair Studio, a company that operates barbershops in Banff, Alta., and Canmore, Alta., as a barber. When the barbershops closed during the pandemic, the worker left but returned one month later when they reopened.
On July 25, 2022, a customer left a negative review of the barbershop and the worker. The owner sent the review to the worker and counselled him about being more professional in performing his duties.
Four months later, on Nov. 21, the worker verbally confronted a colleague, accusing the colleague of failing to perform his duties. The owner learned of the altercation and texted the general manager about speaking to the worker about changing “his negative attitude, temper and outbursts.”
The general manager met with the worker on Nov. 22 with both the worker and the colleague, telling the worker that he had to be more respectful and there would be consequences if he didn’t change his behaviour.
Final warning
However, the worker didn’t seem to improve over the next few months. On Feb. 26, 2023, the general manager approached the worker about his failure to perform his duties in opening up the shop that morning. According to the general manager, the worker responded by saying “F--- you. That’s not my job.”
The worker contacted the owner, who was on vacation, to say that he had “snapped” at the general manager.
The general manager wrote up an “employee discussion log” that stated it was a final warning and the worker had issues with a negative attitude towards staff, was disrespectful towards management, had issues with completing his duties at opening and closing, and was unable to control his emotions. The log stat that if the worker’s attitude didn’t change, he would be terminated.
The general manager wanted to fire the worker at that point, but he couldn’t do so without the owner’s approval and he knew that the worker had contacted her. The general manager delivered the log containing the final warning to the worker, but the worker refused to sign it, calling it “bulls---.” The worker denied that he was given the log and he refused to sign it.
The owner returned from her vacation around March 16 and met with the general manager. They discussed the worker’s misconduct. According to the general manager, there had been no improvement in the worker’s behaviour since the Feb. 26 outburst, although he hadn’t recorded or spoken to the worker about any specific incidents. On March 20, they delivered a termination letter to the worker referring to his “unprofessional behaviour in front of clients, your negative attitude and frequent outbursts towards management” as the reasons for termination.
Termination pay
The worker filed an employment standards claim for termination pay in lieu of notice plus holiday pay and vacation fee. An employment standards officer investigated and ordered Blakkloud to pay the worker $1,524.96 in termination pay plus holiday and vacation pay along with an order of officer fee. The total award was $3,972.38.
Blakkloud appealed the officer’s decision to the Alberta Labour Relations Board. The company agreed that it owed the worker holiday pay and vacation pay, but disagreed with the termination pay. It argued that it had just cause to terminate the worker’s employment, so it didn’t owe termination pay.
The board noted that the Alberta Employment Standards Code requires employers to provide terminated employees with termination notice and/or pay unless there is just cause for termination. Two categories of just cause had been established in jurisprudence – conduct sufficiently egregious to justify immediate dismissal such as dishonesty or deliberate disobedience, and conduct that is “inconsistent with the duties of the employee but falls short of being a repudiation of the contract of employment” or serious enough for immediate dismissal, the board said, adding that in the case of the latter category, the employer must warn the employee that their job is in jeopardy if they repeat the misconduct.
The board found that, had Blakkloud terminated the worker’s employment following the Feb. 26 altercation with the general manager involving insubordinate and insolent” behaviour, the company might have had a credible case for the first category of just cause justifying immediate dismissal. However, Blakkloud treated it as an incident deserving of a final warning. It was the company’s discretion to issue a final warning as discipline for the incident, but it couldn’t then issue additional discipline for the same misconduct, said the board.
No just cause
The board also found that there was no evidence of any incident between the final warning and the worker’s dismissal other than a general statement that his behaviour didn’t improve, or that the worker was advised of any inappropriate behaviour. As a result, Blakkloud was unable to show that it had just cause to terminate the worker’s employment, the board said.
The board noted that the owner and the general manager testified that it was a rational business decision to fire the worker, but such a reason didn’t amount to just cause and absolve the company of its obligation to provide notice of termination.
“In this case, due to the sequence of events and the way [Blakkloud] responded to the Feb. 26 incident, the [company’s] argument that it had just cause cannot succeed,” said the board in confirming the order to pay.
See 2024531 ALBERTA LTD. o/a as Blakkloud Hair Studio v. HASSAN, 2024 ABESAB 12.
