The OLRB has found that an employee, despite being caught napping while on duty on several occasions, was entitled to termination pay pursuant to the Employment Standards Act, 2000 (the ESA) upon termination of his employment with Crystal Claire Cosmetics Inc. (Crystal Claire).

Background

The employee, Chong Jun Zhang, was employed for just under five years as a powder compounder in the pre-weigh section of Crystal Claire’s manufacturing facility at the time his employment was terminated in March 2014, after he was caught sleeping while on duty.

The nap that triggered Crystal Claire’s decision to terminate Mr. Zhang’s employment, according to the employer, was not the first time he had been found sleeping on the job, according to a senior manager at the Company who claimed that he had found Mr. Zhang “dozing off” or sleeping in secluded areas of the workplace on more than one occasion. Other employees also confirmed they had seen him sleeping at work (in one case, the employee claimed that she even had the opportunity take pictures of him sleeping). However, Mr. Zhang was never formally disciplined prior to the incident that led to the termination of his employment. Crystal Claire did, at one point, relocate him in order to better “monitor” him, but he was never informed of the reason he was relocated.

Following his dismissal, Mr. Zhang filed a complaint with the Ministry of Labour and the Employment Standards Officer (the Officer) who reviewed the complaint found in favour of Crystal Claire. Mr. Zhang then made an application for a review of the Officer’s decision by the Ontario Labour Relations Board (the OLRB).

OLRB Decision

The OLRB agreed with Crystal Claire’s decision to terminate Mr. Zhang, stating that Crystal Claire “could not be expected to continue his employment in the circumstances”. However, the issue to be decided was whether or not Mr. Zhang was entitled to statutory termination pay.

Under the ESA, all employees are entitled to notice of termination or payment in lieu of notice, unless (among other things), the employee “has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.

When assessing the circumstances of an employee’s termination in the context of an ESA claim for termination pay, according to the OLRB, the threshold is stricter (in some cases) than the threshold to be met in a civil claim for wrongful dismissal. Under the ESA, the question is not whether the misconduct amounts to just and sufficient cause for terminating the employee’s employment, but rather, it is necessary for the employer to establish that (1) the employee’s misconduct or neglect of duty was wilful (as opposed to reckless or accidental); and (2) the employer did not condone the conduct.

In the circumstances, while the OLRB clearly expressed its view that Mr. Zhang’s conduct was inappropriate, the OLRB was not convinced that Mr. Zhang’s sleeping was not accidental. In other words, the employer failed to show that he fell asleep “consciously and deliberately” (i.e., that the behaviour was “wilful”). Accordingly, Mr. Zhang was entitled to termination pay under the ESA.

Further, despite many prior instances of sleeping, Mr. Zhang had never been provided with any formal verbal warning or written warning that his employment would be at risk if he engaged in further sleeping on the job. Thus, the employer failed to prove that it had not condoned the behaviour leading up to the termination of his employment.

Our Views

This decision is a good reminder that in order to terminate an employee’s employment without providing termination pay (and severance pay, if applicable) under the ESA, misconduct is not enough. An employer must also be able to show that the misconduct was intentional.

In its decision, the OLRB also highlighted the importance of having clearly articulated policies in place for addressing employee misconduct and following the procedures outlined in those policies when imposing discipline. In addition, employers must clearly communicate policies to employees such that employees understand that, if they engage in certain conduct, their employment will be at risk. This is especially important in cases where the employer wants to apply a “zero-tolerance” policy to a particular behaviour in the workplace (sleeping on the job, for instance). Prior to taking steps to terminate an employee’s employment for misconduct, employers should ask themselves whether it is abundantly clear to the employee that the consequence of their behaviour will be termination without further notice or payment.