Gervais v. Bobcat of Central Manitoba Ltd., 2004 CarswellMan 420, 2004 MBCA 159 (Man. C.A. [In Chambers]). Philippe Gervais was terminated by Bobcat of Central Manitoba Ltd. after a number of incidents of lateness, some of them after specific warnings had been given.
Gervais filed an action, claiming he had not been paid as provided under s. 61 of Manitoba’s Employment Standards Code, which requires an employer to give notice of at least one pay period when terminating a worker’s employment.
His request was awarded by the Director of Employment Standards. This was reversed on appeal by the Manitoba Labour Board, which held Gervais had been terminated for just cause and thus there was no requirement to pay wages in lieu of notice. The reversal was appealed by Gervais.
Just cause is not among the specific exceptions in the code to s. 61’s provision requiring notice. Rather, (the portions relevant to this case), paras. 62(h) and 62(p) of the code makes the exception when the employee is guilty of “wilful misconduct or disobedience or wilful neglect of duty” or where “the employee acts in a manner that is insubordinate… or dishonest.” These offences do constitute just cause but the term itself may cover a much broader range of conduct, ruled the Manitoba Court of Appeal hearing the appeal.
Gervais argued that being late for work does not necessarily constitute wilful misconduct or a wilful neglect of duty, nor is it insubordination or dishonesty. The labour board had applied the incorrect standard when it ruled for the company, he said.
But the Court of Appeal found no basis to overrule the labour board’s decision. The board had found the company’s position was more credible than the employee’s. The warnings he had been given — two of which Gervais had signed — satisfied the board that Gervais was terminated pursuant to paras. 62(h) and 62(p) of the code.
The board may have used the term just cause, ruled the court, but it had specifically found on the evidence that Gervais’s conduct fell within the specified exceptions. While lateness is not necessarily wilful, in this case the board had reasonably found it to be so and the court would not overrule the board. The court did not rule on whether lateness is necessarily wilful in all cases.
Gervais filed an action, claiming he had not been paid as provided under s. 61 of Manitoba’s Employment Standards Code, which requires an employer to give notice of at least one pay period when terminating a worker’s employment.
His request was awarded by the Director of Employment Standards. This was reversed on appeal by the Manitoba Labour Board, which held Gervais had been terminated for just cause and thus there was no requirement to pay wages in lieu of notice. The reversal was appealed by Gervais.
Just cause is not among the specific exceptions in the code to s. 61’s provision requiring notice. Rather, (the portions relevant to this case), paras. 62(h) and 62(p) of the code makes the exception when the employee is guilty of “wilful misconduct or disobedience or wilful neglect of duty” or where “the employee acts in a manner that is insubordinate… or dishonest.” These offences do constitute just cause but the term itself may cover a much broader range of conduct, ruled the Manitoba Court of Appeal hearing the appeal.
Gervais argued that being late for work does not necessarily constitute wilful misconduct or a wilful neglect of duty, nor is it insubordination or dishonesty. The labour board had applied the incorrect standard when it ruled for the company, he said.
But the Court of Appeal found no basis to overrule the labour board’s decision. The board had found the company’s position was more credible than the employee’s. The warnings he had been given — two of which Gervais had signed — satisfied the board that Gervais was terminated pursuant to paras. 62(h) and 62(p) of the code.
The board may have used the term just cause, ruled the court, but it had specifically found on the evidence that Gervais’s conduct fell within the specified exceptions. While lateness is not necessarily wilful, in this case the board had reasonably found it to be so and the court would not overrule the board. The court did not rule on whether lateness is necessarily wilful in all cases.
