Sending worker packing during heat-of-the-moment argument can often leave employer on short side of wrongful dismissal claim
Many employers have trouble determining whether misconduct warrants dismissal or lesser discipline. Matters can become more complicated if a misunderstanding is involved, as a trucking company discovered after it fired a driver for insubordination and ended up on the losing end of a wrongful dismissal claim.
Ayr Motor Express, based in Woodstock, N.B., hired Merrill McKay as a truck driver in November 2003. Over the next two years, McKay was disciplined for two incidents. In the first, he fell asleep behind the wheel and caused an accident that resulted in the loss of a company truck and trailer. His second disciplinary incident came when he took two weeks of unauthorized leave. In each case, McKay was given a formal letter of reprimand that warned similar behaviour wouldn’t be tolerated in the future. There was no mention of the possibility he could be fired.
On Feb. 18, 2006, McKay arrived in Winnipeg with a load of freight from Ontario. When he arrived, he was dispatched to Calgary, though he was legally required to rest for 24 hours before he continued driving. Thinking he might have to drive to the United States after he reached Calgary, McKay arranged with Ayr’s dispatcher to rest for 34 hours, which was the legal requirement for driving to the U.S.
Ayr’s president found out McKay didn’t leave Winnipeg as originally scheduled and didn’t know about the new arrangement. He called McKay several times on Feb. 20 until he reached the driver. They got into an argument, during which McKay called the president an idiot several times. The president told McKay to remove his belongings from the truck and return to Ayr’s head office.
Ayr issued a termination letter to McKay citing insubordinate behaviour as the reason for his dismissal. It also mentioned his two previous disciplinary incidents and “argumentative behaviour” with company dispatchers.
A Canada Labour Code adjudicator found McKay was wrongfully dismissed and misconduct didn’t warrant dismissal when the circumstances were taken into account. The adjudicator agreed McKay was insubordinate when he insulted the company president and didn’t directly apologize, but the driver was operating under an understanding of an arrangement that was different from the president’s. Also, McKay was intending to make the trip assigned to him, just later than originally planned.
“The employer is not correct when it alleges that Mr. McKay refused to do the trip,” the adjudicator said. “Tempers were acute on both sides and this was worsened by the differing knowledge of the circumstances that each party was operating on.”
The adjudicator ruled Ayr’s firing of McKay was an “excessive response.” So Ayr appealed to the Federal Court.
The court found that insulting the president can be considered serious misconduct, but shouldn’t always constitute dismissal. It agreed with the adjudicator that Ayr’s president was already angry and wasn’t aware of the arrangement when he called McKay, which resulted in a situation where McKay said his remarks “in the heat of the moment and in the course of an angry exchange of views.”
“An isolated incident of insolent or disrespectful behaviour does not constitute cause for dismissal,” said the court, noting just cause usually comes from a series or pattern of insubordination rather than a single act.
The court also found in order to use the previous disciplinary incidents as part of its basis for dismissal, Ayr should have given “a clear and unequivocal warning” to McKay that further misconduct could result in his dismissal. Instead, it only warned him misconduct wouldn’t be tolerated without any specifics. As a result, Ayr wasn’t able to make a connection between the incidents “in a meaningful or progressive manner.”
The court upheld the adjudicator’s decision that McKay was wrongfully dismissed and Ayr was ordered to pay him one month’s salary in lieu of notice, serving notice to employers to ensure misconduct is sufficiently serious, without mitigating circumstances, to justify dismissal. In addition, for past incidents to be used as progressive discipline leading to termination, the employee must be clearly informed after each incident that continued misconduct could endanger his job.
For more information see:
•Ayr Motor Express Inc. v. McKay, 2007 CarswellNat 1316 (F.C.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.
Ayr Motor Express, based in Woodstock, N.B., hired Merrill McKay as a truck driver in November 2003. Over the next two years, McKay was disciplined for two incidents. In the first, he fell asleep behind the wheel and caused an accident that resulted in the loss of a company truck and trailer. His second disciplinary incident came when he took two weeks of unauthorized leave. In each case, McKay was given a formal letter of reprimand that warned similar behaviour wouldn’t be tolerated in the future. There was no mention of the possibility he could be fired.
On Feb. 18, 2006, McKay arrived in Winnipeg with a load of freight from Ontario. When he arrived, he was dispatched to Calgary, though he was legally required to rest for 24 hours before he continued driving. Thinking he might have to drive to the United States after he reached Calgary, McKay arranged with Ayr’s dispatcher to rest for 34 hours, which was the legal requirement for driving to the U.S.
Ayr’s president found out McKay didn’t leave Winnipeg as originally scheduled and didn’t know about the new arrangement. He called McKay several times on Feb. 20 until he reached the driver. They got into an argument, during which McKay called the president an idiot several times. The president told McKay to remove his belongings from the truck and return to Ayr’s head office.
Ayr issued a termination letter to McKay citing insubordinate behaviour as the reason for his dismissal. It also mentioned his two previous disciplinary incidents and “argumentative behaviour” with company dispatchers.
A Canada Labour Code adjudicator found McKay was wrongfully dismissed and misconduct didn’t warrant dismissal when the circumstances were taken into account. The adjudicator agreed McKay was insubordinate when he insulted the company president and didn’t directly apologize, but the driver was operating under an understanding of an arrangement that was different from the president’s. Also, McKay was intending to make the trip assigned to him, just later than originally planned.
“The employer is not correct when it alleges that Mr. McKay refused to do the trip,” the adjudicator said. “Tempers were acute on both sides and this was worsened by the differing knowledge of the circumstances that each party was operating on.”
The adjudicator ruled Ayr’s firing of McKay was an “excessive response.” So Ayr appealed to the Federal Court.
The court found that insulting the president can be considered serious misconduct, but shouldn’t always constitute dismissal. It agreed with the adjudicator that Ayr’s president was already angry and wasn’t aware of the arrangement when he called McKay, which resulted in a situation where McKay said his remarks “in the heat of the moment and in the course of an angry exchange of views.”
“An isolated incident of insolent or disrespectful behaviour does not constitute cause for dismissal,” said the court, noting just cause usually comes from a series or pattern of insubordination rather than a single act.
The court also found in order to use the previous disciplinary incidents as part of its basis for dismissal, Ayr should have given “a clear and unequivocal warning” to McKay that further misconduct could result in his dismissal. Instead, it only warned him misconduct wouldn’t be tolerated without any specifics. As a result, Ayr wasn’t able to make a connection between the incidents “in a meaningful or progressive manner.”
The court upheld the adjudicator’s decision that McKay was wrongfully dismissed and Ayr was ordered to pay him one month’s salary in lieu of notice, serving notice to employers to ensure misconduct is sufficiently serious, without mitigating circumstances, to justify dismissal. In addition, for past incidents to be used as progressive discipline leading to termination, the employee must be clearly informed after each incident that continued misconduct could endanger his job.
For more information see:
•Ayr Motor Express Inc. v. McKay, 2007 CarswellNat 1316 (F.C.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.
