Restructuring led to loss of job title and worker refused to go back to old position
This instalment of You Make the Call involves an employee who was fired after failing to comply with his employer’s attendance management policy.
Sebhatu Tsigu was a machine operator for Eston Manufacturing, a manufacturer of auto parts in Guelph, Ont. Hired in November 2004, Tsigu was promoted to the position of team leader in April 2007. His duties included helping the lead hand maintain machinery on the production line and operating machinery.
In November 2008, there was a downturn in the automotive industry and Eston had to restructure its business. This restructuring included the elimination of the team leader position and Tsigu was required to return to the position of machine operator, but his pay remained the same and he was still expected to help the lead hand occasionally.
On Oct. 17, 18 and 19, 2012, Tsigu called in sick. When he reported to work on his next scheduled day — Oct. 22 — the line supervisor asked him to sign a form confirming his absences. Tsigu refused to sign the form because he felt he wasn’t given the opportunity to read it.
The general supervisor went to speak to Tsigu about the form and found Tsigu standing beside his machine. Tsigu then told the supervisor he was a team leader and not a machine operator. The general supervisor told him the team leader position no longer existed and took him to be refusing to work.
Tsigu met with management, who reiterated there was no longer a team lead position and his job was that of machine operator. Tsigu returned to the operating line, but when the general supervisor checked on him a little later he found Tsigu standing by the machine. Tsigu was sent to the human resources department, where he once again stated he wanted to be a team leader. The HR department gave him a form to sign that stated he didn't accept being a machine operator and was requesting to be a team leader. Tsigu signed the form.
Tsigu denied he refused to work as a machine operator and said he requested to work as a team leader when he returned from being off sick because he was still feeling sick. He said he didn’t tell anyone he was still sick because he didn’t want to get into more trouble.
The same day Tsigu signed the form in HR, the general supervisor checked on him again and found him standing by his machine. He told Tsigu “If you are not willing to work as a machine operator, I have no other choice but to send you home.” Tsigu went home and the supervisor expected him to return the next day, but Tsigu didn’t show up for the next three days. At that point, it was believed Tsigu had quit his job.
Tsigu claimed the supervisor told him “we don’t need your service anymore,” which he took to mean he was being terminated. On Oct. 26, 2012, Eston sent him a letter saying he was terminated due to failure to report to work or notify management of his absence from Oct. 23 to 25. The company said this left it with no option but to terminate his employment.
YOU MAKE THE CALL
Did the employer unfairly dismiss the employee?
OR
Was there just cause for dismissal?
If you said there was just cause for dismissal, you’re right. The board found the general supervisor was more credible, so it was likely he told Tsigu to go home if he wasn’t going to work, rather than “we don’t need your service anymore.” But regardless of what was actually said, the board found Tsigu’s defiant behaviour when he refused to accept his title of machine operator and continued to stand beside his machine without working was “disobedience and wilful misconduct.”
The board also found that there was no intention to terminate Tsigu’s employment before his misconduct, and Eston worked hard to help him understand that although the team leader position didn’t exist any longer, he still had the position of machine operator and was a valued employee. Ultimately, Tsigu didn’t show up for work for three days after going home and didn’t contact the company, which was a violation of the sick leave policy.
The board determined Tsigu refused to do his job and demonstrated insubordinate behaviour, giving Eston just cause for dismissal without any notice or severance pay.
For more information see:
• Tsigu v. Linamar Corp., 2014 CarswellOnt 12174 (Ont. Lab. Rel. Bd.).
