In the matter of an appeal under Part III of the Canada labour Code BETWEEN: Ron Bussey, Appellant AND: Glen transport Ltd., Respondent
Bussey v. Glen Transport
Judgment: September 30, 2004
Docket: YM2727-1995
Counsel: Mr. Ron Bussey, for the Appellant Mr. Shane Stewart Ms. Kim Poolton, for the Respondent (”Glen Transport” or the “Employer”)
I.S. Petersen:
DECISION
- INTRODUCTION
1 Mr. Ron Bussey (the “Employee”) filed a complaint against his employer, Glen Transport Ltd. (the Employer”), regarding unpaid overtime wages, termination for insubordination on March 13, 2003, and the breach of an agreement regarding the applicable hourly wage rate he was to be paid. Following the inspector’s investigation, the issue was resolved and Mr. Bussey was paid an amount on that account. Mr. Bussey appeals the Notice of Unfounded Complaint, dated December 15, 2003, issued by the inspector under Part III of the Canada Labour Code.
- PRELIMINARY MATTER
2 Following consultation with the parties, concerning dates, I convened a hearing in Cranbrook, British Columbia on May 10, 2004. The hearing date was confirmed in writing and delivered to the parties. Delivery to the respective addresses was confirmed by Canada Post.
3 Mr. Bussey did not attend the hearing. The Employer was there. I adjourned the hearing until 10:30 a.m. to allow Mr. Bussey further time to attend. When the hearing recommenced, Mr. Bussey still did not attend, and I considered the appeal abandoned and was prepared to dismiss it. The Respondent employer explained the basis for the decision to dismiss Mr. Bussey.
4 As it happened, Mr. Bussey called my office on May 12, 2004. While he did receive the letter regarding the hearing, his letter indicated that the hearing would take place on May 12. I accept that Mr. Bussey received a letter with the wrong date and, therefore, did not receive proper notice of the hearing.
5 I was concerned about my ability to continue and render a decision the matter, and, on May 13, sought submissions from the parties:
”What I seek from the parties now is submissions as to how we proceed from here, including:
- In the circumstances, can the decision, if that is what it was, stand?
- If no, can I continue to hear this appeal?
- If yes, are the parties agreeable to a different format, for example, telephone conference, perhaps combined with an agreed statement of facts, or is the preferred option the traditional hearing?,
- What are the issues on appeal: is the appeal only on the issue of the entitlement to severance pay or are there other issues that need to be addressed?
- In any event, would the parties allow me to engage in some form of settlement or mediation of the dispute? Again, that may be done in a number of ways.
I regret this and invite the parties to consult with legal counsel. All the same, I need to hear from the parties in writing with respect to the above and, any other issues to be addressed, no later than the close of business, Monday May 31, 2004. If any party requires a reasonable extension, please let me know.”
6 While the parties understandably had misgivings and concerns about what had happened, both parties ultimately were of the view that I should continue and decide the appeal.
7 The parties advised me that the question of overtime wages was resolved through the inspector’s intervention. While Mr. Bussey disagrees with the inspector’s finding regarding the hourly rate, he does not appeal this. In short, the only issue is his entitlement to two weeks’ pay in lieu of notice, narrowing the scope of the hearing.
8 The parties were generally agreeable to attempt some other format to avoid the expense and effort of a further hearing in Cranbrook. I subsequently attempted to convened a telephone conference. Unfortunately, this did not bear fruit and, following consultation with the parties, I set the matter down for hearing on August 23, 2004. Fortunately, at that time all parties attended.
- FACTS
9 At the hearing, Mr. Bussey, Mr. Stewart and Ms. Poolton testified, under oath or affirmation.
10 The Employer runs a substantial trucking operation in British Columbia and Alberta. Mr. Bussey is a licensed mechanic. He worked for the Employer’s Skookumchuck operation from September 2002 until his termination in March 2003.
11 Mr. Bussey testified that he started employment as a mechanic based on a “handshake” agreement with Mr. Stewart for $22.00 per hour. Mr. Bussey had previously worked at a nearby unionized pulp mill at the much higher rate of $30.00 per hour. He told Mr. Stewart that he did not expect that higher rate and agreed to $22.00. After about 2 months of being paid $20.00 per hour, he said, he was questioning why he was not getting the same rate as the other trades person, Mr. Leslie, the mechanic foreman/lead-hand. It took some time to “get hold of Mr. Stewart,” who told him that he had to put in 90 days before he could get an increase from the $20.00 per hour he was being paid. Some time after the 90 days he got an increase to $21.00. In connection with the raise, Mr. Bussey testified that Mr. Stewart told him that “he was doing a good job” and that he was “happy with what he was doing.” Mr. Bussey felt strongly he was entitled to the $22.00, and while he says he left it that, it is clear to me that he continued to be angry about what he felt was a breach of the agreement to pay him the $22.00 per hour.
12 The employer denies that there was an agreement for $22.00. Mr. Stewart testified that the agreement was for $20.00 per hour. The Employer’s policy is to give a raise after 90 days. He agrees that he had been hard to get hold off because he had been spending so much time in Alberta on business and that there had been a delay in implementing the raise to $21.00 per hour. Mr. Stewart does not dispute that he told Mr. Bussey that he was doing well when he approved the raise which, on the evidence, would have been given some time in or after December 2002.
13 Mr. Bussey acknowledged that he had a few “disagreements” with the Employer. One occasion he refused to weld a bolster plate. In his view, it was not safe to do what the Employer requested and generally questioned the efficacy of doing what was requested. Mr. Stewart disagreed with Mr. Bussey’s characterization and explained that another employee did the work. Mr. Stewart insisted that this was not an “illegal practice,” that the shop had been inspected by I.C.B.C. and complied with “all rules and regulations.” On another occasion, Mr. Bussey refused to weld a broken tilt steering wheel and the Employer had another mechanic do the work. The Employer did not formally warn Mr. Bussey in writing with respect to these two incidents. Mr. Stewart says that Mr. Bussey was “spoken to” by himself, Mr. Leslie and Mr. Glen, and that the incidents were “put in his file.” While the general implication of being “spoken to” was not lost on me, it is not as unequivocal as the parties (and perhaps the Employer in particular) seem to think, hence the value of a written warning.
14 The Employer blamed Mr. Bussey for two trailers going for inspection in Cranbrook with several deficiencies, as a result of which, they failed. Mr. Bussey explained that he and Mr. Leslie, the mechanic foreman/lead hand, had a “conversation” with Don Glen, the owner, and Mr. Stewart regarding the trailers. Mr. Leslie and Mr. Bussey were supposed to have completed the pre-inspection of the truck before it left the plant. There was a pre-inspection work sheet for each trailer, neither of which were in evidence at the hearing. Mr. Stewart brought two similar sheets with him to the hearing. Although they were not formally introduced into evidence, nor, indeed, discussed in any great detail, they appeared to have spaces for check marks for work done. Mr. Bussey testified that nothing was checked off on the sheet for trailer that Mr. Leslie was responsible for. He said he had completed 90% of the work on the other trailer and agrees that he did not finish the work because, at the time, he was asked to work on something else. He points to Mr. Leslie, the foreman/lead-hand, as the person responsible for sending the trailers to inspection.
15 Ms. Poolton says that Mr. Leslie had explained to her that Mr. Bussey had told him that the trailers were ready for inspection. Mr. Stewart also says that Mr. Leslie pointed the finger at Mr. Bussey at the person responsible for the trailers going to Cranbrook. Ms. Poolton testified that Mr. Leslie had said that Mr. Bussey had told him that the trailers were ready. He said that the tail lights on Mr. Bussey’s trailer not working, something, as suggested above, Mr. Bussey agreed with. Neither Mr. Glen nor Mr. Leslie testified at the hearing. This is all the more critical because there was no written warning. Their direct testimony on the nature of the “conversation” would have been helpful. The fact that Mr. Leslie did not testify, left me with only Mr. Bussey’s testimony as the only direct version of this incident. In all of the circumstances, I am reluctant to accept that the responsibility for this incident rests solely with Mr. Bussey. No written warning was issued to Mr. Bussey.
16 Then Mr. Stewart brought up a “brake job” on a trailer, which in his opinion, had taken “three times as long” as it should have. Moreover, Mr. Bussey had discarded the cam tubes, contrary to well known Glen Transport policy of recycling parts. Mr. Stewart’s testimony was not based on personal knowledge. Mr. Bussey denies that he had discarded the cam tubes. He did not dispute that he may have been used more time than he should have and explained that he could have been interrupted by other jobs or having to locate parts. Mr. Stewart attributed the discarding of the tubes to Mr. Bussey’s “big unionized company attitude.” Mr. Stewart testified that Mr. Glen verbally warned Mr. Bussey. Mr. Glen, he explained is “not 100% about writing [things] down.” The circumstances of the incident, sought to be relied upon by the Employer, were far from equivocal, and there was no written warning. As Mr. Glen did not testify, the content of the “verbal warning” was not clear.
17 Shortly before Mr. Bussey’s employment was terminated, Mr. Stewart complains that he performed unnecessary work on a rented loader caterpillar and was warned about it. He replaced all the hoses and put a new block heater into the caterpillar. Although he was not sure of the exact value, Mr. Stewart estimated that the work and parts exceeded $1,000. Mr. Bussey did not ask or consult anyone. Mr. Glen and Mr. Stewart, he agreed, were away at the time. Mr. Bussey denies that he ordered or bought parts without authority. He says that he or Mr. Darryl Tanner, another mechanic employee, would telephone the parts lead-hand to request parts. Mr Bussey also says that the work he did on the caterpillar was necessary. Again, the circumstances of the incident were far from equivocal, and there was no written warning.
18 While the Employer relies on Mr. Baizes poor employment record, Mr. Stewart explained that he was terminated on March 13, 2003, when he created a “scene” at the work place. By way of background, the Employer had made an application to be able to inspect its own vehicles under various motor vehicle statutes pertaining to safety. In the past, the Employer had to have its mechanical work inspected by other facilities, for example, Freightliner, at a substantial cost, approximately $60,000 in the past year, and considerable logistical effort. Mr. Stewart explained that the Employer could ill afford this cost, and that it was imperative to get the license to perform its own inspections.
19 He and Ms. Poolton explained that the employees were well-aware how important it was for the Employer to be able to do its own inspections. The Employer spent the week prior to the inspector’s arrival getting the facility ready, down to scrubbing the floors. There was a meeting for staff some 10 days prior to the inspection where Mr. Stewart emphasized the importance of the upcoming visit for the Employer’s business. In Mr. Stewart’s view, Mr. Bussey knew how important it was to get the approval and, from his point of view, deliberately chose to “make a scene” about his wage rate in front of the inspector. From the Employer’s standpoint, he deliberately chose the inspection as an opportunity to vent his wage grievance with the Employer. Although, in his testimony, Mr. Bussey downplayed the Employer’s preparations and significance of the inspection, I think the importance was clear to him — he just “couldn’t understand why he couldn’t get the $22.00.”
20 Mr. Stewart explained that Mr. Bussey took it upon himself to enter a meeting between the Employer’s representatives, including Mr. Stewart, Mr. Glen, Mr. Leslie and Ms. Poolton, and the inspector to bring up his wage rate. Mr. Bussey agreed that he was not included in the meeting. He explained that he had seen the inspector, Mr. Stewart and Mr. Leslie walk around the facility. He suggested that he was upset about that because he felt that his “license [was] on inspection” and he should have been included. There were only two licensed mechanics with a “facilities license” to inspect, himself and Mr. Leslie. Mr. Bussey acknowledged that he was bothered that he “couldn’t get the same rate of $22.00 [as Mr. Leslie]” and that it was “eating away” at him. Around 3:00 p.m., Mr. Bussey stated, somewhat equivocally, that “we ended up in the office” where, at some point, the inspector asked to see Mr. Leslie’s and his license card. Mr. Bussey did not have the actual card with him but went out to get a photocopy. He said he put the document on the table and stated:
”If I’m not getting the same rate, I’m refusing to do motor vehicle inspections.”
21 Mr. Bussey agreed that he left the room, slamming the door hard.
22 Mr. Stewart’s version of the events in the office is fairly similar in substance on the material points, although it was more detailed. He explained that there had been no need for Mr. Bussey’s participation in the meeting with the inspector. Mr. Bussey entered the room uninvited and talked about his license. He then said “are we going to discuss wages now” — according to Ms. Poolton — not in a “nice tone.” Mr. Stewart told Mr. Bussey that they could talk about that later. Mr. Bussey then said that he would refuse to do inspections unless he got the same rate. Mr. Stewart and Ms. Poolton, testified that the inspector appeared visibly shocked. Mr. Bussey does not agree with the Employer’s depiction of the inspector’s reaction. He says he talked to the inspector sometime later and was told that he was not shocked. The Employer’s witnesses say that Mr. Bussey left the office with the words “you bet we will!” slamming the door shut. In my view, however, there is not much disagreement in substance on what transpired at the meeting.
23 After the incident, Mr. Stewart finished the tour with the inspector. Within 45 minutes to one hour, Mr. Bussey was called into Mr. Glen’s office. Mr. Glen told him that this incident was the “jewel that broke the crown” (or words to that effect) and that he was fired. He had embarrassed Mr. Stewart in front of the inspector. Mr. Bussey said he started to explain to Mr. Glen why he was upset, namely that he had not been paid what he been promised by Mr. Stewart. Obviously, if that was the intent, this did not do much to calm Mr. Stewart. Mr. Bussey testified that Mr. Stewart was yelling at him. I do not doubt that Mr. Stewart was angry and upset. He explained that Mr. Glen was fully aware of how much Mr. Bussey was being paid, in accordance with company policy. Mr. Stewart felt that Mr. Bussey had put him in an impossible position in front of the inspector, embarrassing him showing a lack of control of the work place and its employees, and felt that the conduct was seriously and highly insubordinate. At that point the inspector had not approved the operation to conduct is own inspections. Mr. Bussey was told that he was not allowed to finish the week or the day. He was allowed to come the next day to pick up his tools.
- DECISION AND ANALYSIS
24 Under Section 230(1) of the Code, an employee is entitled to two weeks’ written notice of termination or pay in lieu, except where the employer has “just cause” for the termination. It reads:
- (1) Except where subsection (2) applies, an employer who terminates the employment of an employee who has completed three consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, give the employee either
(a) notice in writing, at least two weeks before a date specified in the notice, of the employer’s intention to terminate his employment on that date, or
(b) two weeks wages at his regular rate of wages for his regular hours of work, in lieu of the notice
25 The issue before me is whether Glen Transport had just cause for the termination of Mr. Bussey.
26 In Individual Employment Law (Irwin Law & Quicklaw 2000) Geoffrey England notes with respect to the standard of just cause:
Statutory adjudicators have developed remarkably similar standards of just cause to those applied by collective agreement arbitrators….. Since the common law standards of just cause are also very similar to the arbitral standard in most (but not all) respects, there is a relatively high degree of conformity among the three legal regimes governing just cause for dismissal…..To summarize, the notion of just cause in adjudication encompasses the following requirements: the employer must prove that the worker’s conduct has caused or is likely to cause substantial harm to the production process, the symbolic legitimacy of management’s authority to issue orders, or public confidence in the employer’s business; the penalty of dismissal must be proportional to the degree of harm suffered by the employer; appropriate corrective measures must have been followed in dismissals for misconduct and incompetence in order to give the employee a chance to rehabilitate…..
27 From my review of the unjust dismissal jurisprudence under the Canada Labour Code, there is a heavy onus on employers to follow what is commonly known as progressive discipline. That is also the case under employment standards legislation in British Columbia and other jurisdictions. The principles applied by the B.C. Employment Standards Tribunal have been summarized as follows (Kruger, BEST #D003/97):
”1. The burden of proving the conduct of the employee justifies dismissal is on the employer.
- Most employment offenses are minor instances of misconduct by the employee not sufficient on their own to justify dismissal. Where the employer seeks to rely on what are instances of minor misconduct, it must show:
- A reasonable standard of performance was established and communicated to the employee;
- The employee was given a sufficient period of time to meet the required standard of performance and demonstrated they were unwilling to do so;
- The employee was adequately notified their employment was in jeopardy by a continuing failure to meet the standard; and
- The employee continued to be unwilling to meet the standard.
- Where the dismissal is related to the inability of the employee to meet the requirements of the job, and not to any misconduct, the tribunal will also look at the efforts made by the employer to train and instruct the employee and whether the employer has considered other options, such as transferring the employee to another available position within the capabilities of the employee.
- In exceptional circumstances, a single act of misconduct by an employee may be sufficiently serious to justify summary dismissal without the requirement of a warning. The tribunal has been guided by the common law on the question of whether the established facts justify such a dismissal.”
28 The Employer did not follow progressive discipline in the termination of Mr. Bussey. Even on the Employer’s evidence, it is not clear that a reasonable standard of performance was established and communicated to the employee. Mr. Bussey was not adequately notified his employment was in jeopardy by a continuing failure to meet the standard. The Employer claim that Mr. Bussey was “spoken to,” and while I generally accept that, the particulars of the circumstances and the nature of these “verbal warnings,” on the evidence before me, left a lot to be desired. Most of the incidents relied upon by the Employer cannot be established on the balance of probabilities or, where they can, as in the case of the “welding incidents,” which raises the spectre of insubordination, the Employer did not, in my view, follow proper disciplinary procedure. I note, as well, the Employer did increase his hourly rate some time in December 2002 or early 2003, and did not dispute Mr. Bussey’s assertions that he was told that he was doing well.
29 In my opinion, the resolution of the appeal before me boils down to an assessment of Mr. Bussey’s conduct on March 13, 2003 and whether the Employer had cause for termination based on that single incident of insolence. There is little disagreement with respect to the material facts.
30 While the two concepts are frequently used interchangeably, and are related, insubordination is the intentional refusal to obey an employers reasonable and lawful instructions; insolence, on the other hand, is derisive, contemptuous and abusive language or conduct, generally directed at a supervisor. While a single incident may be insufficient cause for dismissal, having regard to all of the circumstances, including the quality of the act,
”perhaps a better view is that even an employee’s single act of misconduct… may justify dismissal if the act evidences an intention to no longer be bound by the employment contract.”
31 (See R.S. Edelin and M.L.O. Certosimo, Just cause. The Law of Summary Dismissal in Canada (Aurora, Ont.: Canada law Book, 2002-, at 17-9). In his authoritative work, Wrongful Dismissal (Scarborough, Ont.: Carswell, 1999, at p. 6-97), David Harris notes that
”The progressive discipline doctrine is somewhat attenuated incases involving insolence… The real question is whether the employee can and will modify his behaviour.”
32 The case law under Part III of the Code also supports the notion that insolence and insubordination are very serious offences (see, for example, Front Runner Freight Ltd. v. Kohut, C.L.A.D. No. 335, June 13, 2000 (Hall). In Constance Lake First Nation v. Bouillon, [1996] C.L.A.D. No. 207 (Aggarwal), the adjudicator noted:
There is no doubt that insubordination in a workplace is a serious offence. Professor Palmer, while commenting on the issue of “insubordination” in Collective Agreement Arbitration in Canada, states at pages 315-316 as follows:
Unquestionab1y, insubordination is the most common type of disciplinary action found in the field of labour arbitration. Equally, it is considered by most arbitrators to be “one of the most serious industrial offenses”. The reason for this is that it strikes at the heart of an employer’s prerogatives: the right to manage. It is felt that the right to order employees to carry out orders without, extended debate and without a loss of respect is central to the role of management. Naturally, there is much to commend this position; but it is also clear that Canadian society does not accept a blind, teutonic obedience to orders as being consistent with its basic assumptions of acceptable behaviour. Authority is not supreme; it must be based in reason.
33 Mr. Bussey took it upon himself to enter the meeting between the inspector and the Employer’s representatives. He was not invited. While there was no evidence that his conduct was planned in advance, it was certainly deliberate. Whether he should have been included, as he seems to think, misses the point entirely. The Employer had the right to determine who was to participate. I do not accept Mr. Bussey’s justification, that his license was “on the line.” In my view, Mr. Bussey was upset and angry with the Employer because he was not getting the hourly rate he continued to believe — wrongly, in my view — that he was entitled to. It was, in his own words, “eating away at him.” It continued to bother him. It was inappropriate and unacceptable for him to force himself upon the meeting.
34 Not only he did force himself upon the meeting, and disrupted it, he did so to vent his wage grievance with the Employer in the most inappropriate manner (See also Belliveau v. Dylex Ltd., 79 N.B.R. (2d) 141 (Q.B.) At 150-1). There was no element of provocation to, perhaps, explain his conduct. It was clearly inappropriate for him to bring his wage issue up before the inspector. He knew or ought to have known this, and he knew, in my view, how important the inspector’s visit was for the Employer. This does not mean that I completely accept the Employer’s assertion that Mr. Bussey’s conduct actually threatened or prejudiced the outcome of the inspection, i.e. whether the Employer would be granted the facilities licence. All the same, I do not accept Mr. Bussey’s attempt to minimize the importance of the inspection for the Employer. In fact, his continued attempt to do so, even at the hearing, support the conclusion that Mr. Bussey did not recognize the significance of his insolent conduct.
35 The manner in which Mr. Bussey chose to vent his disagreement with the Employer amplifies his conduct. When he asked,”are we going to discuss wages now” — as explained by Ms. Poolton, he did not do it in a “nice” tone. This was unprovoked. He was then told by Mr. Stewart that this was not the time, and that Mr. Stewart would talk to him later about it. Rather than accepting this, he embarrassed the Employer’s representatives further by his outburst: “If I’m not getting the same rate, I’m refusing to do motor vehicle inspections.” Mr. Bussey left the office with the words “you bet, we will,” slamming the door shut. This was unacceptable conduct. The Employer’s witnesses testified that the inspector appeared shocked. He may have been. Mr. Bussey testified that he was not. The inspector did not testify. I do not think much turns on the inspector’s reaction. His conduct was disruptive, insulting, unacceptable and served to undermine Mr. Stewart. In my opinion, Mr. Bussey’s conduct and comments undermined the Mr. Stewart’s, and the Employer’s, authority in the work place. He embarrassed the Employer in a very public manner. (See also Clare v. Moore Corp. (1989), 29 C.C.E.L. 41 (Ont. Dist. Ct. ))
36 In my view, Mr. Bussey’s conduct is not mitigated by his dispute with the Employer regarding his wage rate. Even if he was correct and Mr. Stewart promised him a higher rate, this was not, and I think, he knew that, the way to address the issue. Mr. Bussey did not apologize at the earliest opportunity, when he was called in to meet with Mr. Stewart and Mr. Glen after the inspection. In fact, he continued his insubordinate behaviour and attempted to justify his behaviour. Mr. Bussey tried to explain to Mr. Glen that Mr. Stewart had reneged on a promise to pay him the higher rate.
37 Looking at the events of March 13, 2003, Mr. Bussey’s conduct is serious or major misconduct. I find that his conduct demonstrates an inability to modify his behaviour and an intent to no longer be bound by the employment contract. In other words, I am of the view that the employer had cause for the summary termination of Mr. Bussey. I the result, he is not entitled to pay in lieu of notice.
ORDER
38 I order that the appeal be dismissed and the Notice of Unfounded Complaint, dated December 15, 2003, be confirmed.