Written by David Doorey, York University
Under both the common law and Employment Standards legislation, employees are generally entitled to notice of termination. However, in both regimes, the employee may forfeit that entitlement by engaging in serious misconduct. Under the common law, the leading case is McKinley v. BC Tel, where the SCC ruled that the misconduct must be serious enough to irreparably destroy the relationship of trust and confidence required in an employment relationship in order for an employee to forfeit the right to common law notice.
In the Ontario ESA, section 54 provides employees who have been continuously employed for three months or more with a right to notice of termination or termination pay under the Act. Section 55 then provides that ‘prescribed’ employees are not entitled to notice of termination or termination pay. Whenever we see ‘prescribed’, we know to look at the Regulations. Regulation 288/01 sets out the employees who are prescribed as not entitled to receive termination pay. Paragraph 3 of subsection 2(1) prescribes from entitlement to termination pay:
an employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.
Two recent decisions by the OLRB show how applying this test can be difficult and unpredictable. The cases involve similar forms of insubordination in the form of single outbursts directed at supervisors, and then a refusal to apology or admit wrongdoing. However, only in one of the cases is the employee found to have been disqualified from notice pay.
In the first case, Welsh Industrial Manufacturing, the employee cursed at his supervisor and (perhaps) called him a “f-ing idiot”, and then refused to apologize the next day, and indeed was argumentative again. However, the Board ruled that this was not sufficiently serious to constitute ‘willful misconduct’. It applied this test:
Most, if not all of the decisions adopt a three-part test articulated by Referee Hunter back in 1982 in General Motors of Canada Ltd. (December 14, 1982 – E.S.C. 1337):
i. The profanity must be more than “shop talk”;
ii. The employer’s prohibition on profanity must be known; and
iii. Profanity justifying termination must be more than one isolated outburst.
Applying this test, the Board ruled that the outburst was isolated, even though it continued over two work days. The employee had a long service record with no problems, so viewed in context, the unusual outburst was not serious enough to amount to ‘willful misconduct’. The employee was entitled to notice pay.
The second case, Marquis v. Arrow Games has similar facts. The employee there was asked to do something by a manager and he refused to do it because he thought is was a stupid idea. He told the manager that he was “f-ing idiot” and that he would ‘kick the shit out of him’. The next day the employer gave the employee a letter to sign that would have acknowledged the employee’s insubordination, but the employee was belligerent again and refused to acknowledge he’d done anything wrong. So the employer terminated him.
The Board ruled that the employee had engaged in wilful misconduct, thereby forfeiting his entitlement to notice of termination pay. The Board was not concerned about the language used, ruling it was the type of ‘shop talk’ that was normal at the workplace. But the Board was more concerned about the employee’s refusal to acknowledge his insubordination. The adjudicator wrote that a test to apply is ‘whether it would have been unreasonable to expect the employer to permit the employee to work out his or her notice period under the Act.” Given the employee’s unwillingness to accept that he is required to obey management orders, and his persistent belligerence, the Board said that the employer would not have been expected to allow the employee to work out the notice period.
Can you explain the different outcomes?
Note, by the way, that there is no issue here about whether the employee can dismiss the workers for insubordination. They can. The only question is whether the employer needs to give the employee notice of that termination in the form of working notice or pay in lieu of notice.