Worker’s refusal to ship severs employment relationship

You make the call

This edition of You Make the Call features a worker who claimed he was terminated while his employer said he quit.

Ace Marmon was hired in May 2010 by SanMar Canada, a wholesale distributor of t-shirts, hoodies, and other clothing with printed graphics. He worked as a shipper in the shipping department for a few years, during which time he trained other employees in the department. In August 2015, SanMar made him a pick-up order attendant, though he sometimes still had to help out in other areas of the warehouse. It was company policy to have all employees work temporarily in different positions to ensure its product was delivered efficiently, so they were cross-trained.

In late 2015, Marmon transferred out of the shipping department. Soon after, SanMar increased the hourly wage for shippers, but Marmon’s pay remained the same since he had moved out of the department. In January 2016, he found out that a new employee who had started less than three months earlier as a shipper was making $3.50 per hour more than him.

Marmon was upset at this development, as not only was this employee new, Marmon himself had trained the newcomer. He was also passed over for a promotion for another employee who he felt was less qualified, so he began to feel singled out unfairly, partially because of hi manager’s close monitoring of his punctuality — which involved coaching meetings and disciplinary warnings. In July 2016, he was put on probation and warned that his job was in jeopardy if he continued to have problems being late to work.

Around the same time, Marmon requested a pay increase, complaining that it was unfair he was paid significantly less than shippers, since he had worked in that position for several years. The company told him the difference in pay reflected the difference in job duties between his current role and shippers — and he was no longer a shipper.

On July 18, management asked Marmon to help with shipping duties — in line with the company policy of employees cross-training and helping in other departments — but Marmon refused, saying it was outside his pay grade. He was reminded of the policy and expectations and sent home with a warning that refusing again would result in termination of his employment.

Two days later, the shipping department was short-staffed and Marmon was asked if he would help out. Marmon replied that he would, but only if he was paid the higher shippers’ pay rate. When told that wasn’t company policy, he said he wouldn’t do it unless paid the differential.

Marmon then left work without permission. His supervisor called him at home and asked if he was coming back, to which Marmon replied, “The company doesn’t want me anymore. Nice working with you.” He also said he didn’t know if he would be back the next day and he “didn’t want to work in a company that doesn’t treat people fairly.”

Marmon’s manager called him and asked him to help in the shipping area, but Marmon maintained his position that he would only do so if paid the increased rate for shippers. The manager said the company would do that, so Marmon said he wouldn’t return to work. He also said he understood that his employment would be terminated if he continued to refuse the request to help out in shipping.

That same day SanMar sent Marmon a letter confirming his resignation or, alternatively, termination for cause. Marmon then sued for wrongful dismissal.

You Make the Call

Did the employer wrongfully dismiss the employee?
Did the employee resign from his employment?

IF YOU SAID the employee resigned from his employment, you’re right. The court found that SanMar asked Marmon three times to cover for someone in the shipping department and he refused all three times. Marmon was aware it was company policy that employees sometimes fill in for others, and each time he refused the company warned him it could lead to termination.

The court also found that it wasn’t a term on Marmon’s employment to work as a shipper at a lower rate of pay than the shipping rate — instead, he was required to do shipping duties on a temporary basis as needed, without an acting pay raise — which was a reasonable and lawful request. Marmon’s intentional refusal to obey a lawful and reasonable order amounted to insubordination that was enough to justify dismissal. Though Marmon believed management was targeting him, there was no evidence that was the case — SanMar’s policy and practice was to ask all employees to help in other areas of the company on a temporary, as-needed basis.

Marmon appealed the decision, but the appeal court upheld the lower court’s decision, finding that while Marmon didn’t have a written employment contract that stipulated that the performance of temporary assignments without acting pay was part of the terms of his employment, company policy, past practice, and the fact Marmon had done so on other occasions demonstrated it was an implied term of the employment contract.

“(The trial court) committed no error in concluding that Mr. Marmon’s conduct demonstrated a clear intent to no longer be bound by the terms of his employment contract, which had always included occasional temporary assignments in other departments without acting pay,” said the appeal court. See Marmon v. The Authentic T-Shirt Company, 2019 CarswellOnt 114 (Ont. S.C.J.).

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