Employers can dismiss employees for breaching a company rule. But there are a number of important elements that must be addressed for the termination to stand up to a court’s scrutiny. A recent case involving a tailor who took time off work during a busy period, where the employer had a clear policy prohibiting vacations during certain vacation blackout periods, provides an example where an employer handled the situation properly.
A tailor who booked a vacation over the Christmas holidays, despite being warned in writing not to, was fired for cause, a decision upheld by a Saskatchewan court.
Adriana Gonzalo began her employment as a tailor with Moores The Suit People on Oct. 13, 1986. She was fired on Dec. 21, 2001, when she was 58. She worked a 40-hour week and earned $11.40 per hour or about $23,700 per year.
During her time at Moores, there were two tailors employed — herself and Huong La. They worked together in the sewing room at the back of the store. The pair worked out between themselves when they would take holidays and ensured they did not take holidays at the same time as one tailor had to be available at the store.
In 2001 Gonzalo told La that she should take her holidays in the summer because Gonzalo was planning to take time off in the winter to go to Chile. Gonzalo said she told her then manager about the plans for a winter vacation and he consented. She bought airline tickets in August 2001 to go to Chile from Dec. 27, 2001, to Jan. 28, 2002 and her first day of vacation would be Dec. 21.
But that manager said he did not authorize her to take a vacation during that time. It appears there was some discussion about a winter vacation, but no exact dates were given.
The blackout period
Moores has a vacation policy in place with blackout periods where no employees are allowed to take time off without approval from management. The policy, officially implemented in 2000, stated that no vacations could be scheduled:
•two weeks leading up to Easter;
•two weeks leading up to and three weeks after Father’s Day; and
•the second week of November through the end of January.
Dave Gower took over the store as manager sometime in 2001. La testified that she heard Gower tell Gonzalo several times that she could not take a holiday in December because of the blackout policy. One time La heard Gower tell Gonzalo that she could not take a holiday in December and she responded, “Too bad, the tickets are booked.”
Gonzalo spoke to a district manager in Edmonton in early 2001 about the vacation. On Dec. 10, 2001, she received a letter from Steven Nichen, vice-president of store operations, that clearly communicated to her that she had no authorization to take the vacation and if she did her employment would be terminated for cause. (See full text of letter below.)
After receiving the letter, Gonzalo said it was clear that she could not go to Chile as planned. But she did not attempt to change her plane ticket.
A few days before Gonzalo left for holidays, Gower spoke to her three or four times and reminded her not to take her holidays in December. He called her into his office and reminded her that Moores had not approved her vacation and, if she didn’t report to work, the company would consider her to have abandoned her job. When she did not show up for work, Moores hired a tailor to replace her.
When she returned from Chile, Gonzalo received her record of employment on which Moores indicated that she had been terminated for cause and she was dismissed due to misconduct because she took an unauthorized vacation.
Worker sought 15 months’ pay
Gonzalo was seeking 15 months’ pay based on the fact it took her about 15 months to find a job with another employer. But the court rejected her claim.
Justice D.C. Hunter of the Saskatchewan Court of Queen’s Bench said the blackout policy for vacations was instituted in 2000 and a copy of the policy was posted outside the sewing room.
“It may be that (Gonzalo) did not bother to read the policy, but I am satisfied that it was posted and available for the employees to read,” said Justice Hunter.
Justice Hunter also said the Dec. 10 letter from Nitchen to her was very clear about the repercussions for taking a holiday during the blackout period.
Generally speaking, companies must establish the following factors in order for a breach of a company rule to constitute just cause for discharge, the court said:
•the rules must be distributed;
•the rules must be known by employees;
•the rules must be consistently enforced by the company;
•the employee must be warned that they will be terminated if a rule is breached; and
•the rules must be reasonable.
Moores published the policy about vacation blackouts and it was posted. La was aware of the policy and the court said it believed Gonzalo was too, even though she was not prepared to admit that she knew it.
Policy consistently enforced
There was no evidence that Moores didn’t consistently enforce the policy. Moores will allow time off for an employee during a blackout period if there is a sufficient reason but the local manager can’t approve it, the court said. It must go to the regional managers for approval. In this case, Moores phoned her to advise her that she could not take her vacation as requested.
“Nothing could be clearer than the letter (Gonzalo) received and she was warned that if she took an unauthorized vacation that she would be terminated,” said Justice Hunter. “In the circumstance, I conclude that the rules about vacation blackout are reasonable. It appears that it had been the practice for some significant period before the formal policy was written that employees could not take vacation during the ‘busy’ times at the store.”
The court said Gonzalo decided she was going to Chile for five or six weeks.
“She was unconcerned whether her employer approved the vacation period,” said Justice Hunter. “She received the verbal and written warnings and clearly disregarded the same.”
If the court was wrong in its decision, Justice Hunter said she would have awarded Gonzalo 10 months’ pay in lieu of notice.
For more information see:
• Gonzalo v. Moores The Suit People Inc., 2006 CarswellSask 350 (Sask. Q.B.)
What must be established
Breaching a company policy can be just cause for termination but, as Justice Hunter of the Saskatchewan Court of Queen’s Bench pointed out, there are a number of conditions that have to be met.
In Taylor v. Sears Canada Inc., a 1990 decision by the Nova Scotia Supreme Court, Charles Taylor, a delivery truck driver, violated company rules by taking excessively long breaks and dishonestly claiming overtime. Although the rules were not formally distributed, the driver was aware of them and they had been enforced since 1986.
Taylor had been warned that violations resulted in termination. Upon further breach of the rules, he was fired. The court upheld the termination.
The court quoted from The Law of Dismissal in Canada, a text written by Howard A. Levitt, that stated breach of rules or company policies can also be cause for discharge. Generally speaking, companies must establish the following factors in order for a breach of a company rule to constitute just cause for discharge:
•the rules must be distributed;
•the rules must be known by employees;
•the rules must be consistently enforced by the company;
•the employee must be warned that they will be terminated if a rule is breached; and
•the rules must be reasonable.
Levitt also listed two additional factors in order for a breach of a company rule to constitute just cause:
•the implications of breaking the rules in question are sufficiently serious to justify termination; and
•whether a reasonable excuse exists.
For more information see:
• Taylor v. Sears Canada Inc., 1990 CarswellNS 395, 95 N.S.R. (2d) 170 (N.S. T.D.)
An effective warning letter
Text of the letter from Moores to Gonzalo
Below is the text of the warning letter sent by Steven Mitchen, vice-president of operations at Moores, to Gonzalo warning her not to take time off. The court said, “nothing could be clearer” than this letter.
Adriana Gonzalo,
It has been brought to my attention by Bryan Moore (district manager), Jim Jubert (regional manager) and Mike Lambert (senior regional manager) that you are planning on taking an unapproved vacation (Dec. 21 through Jan. 28) during our VACATION BLACK-OUT PERIOD.
What’s important for you to know is that our vacation policy has been in effect since February 2000 and no store personnel are excluded from this policy without prior approval from upper management.
If you intend on following through with your vacation plans we the MOORES executive committee will interpret your actions as a breach in policy and insubordination, resulting in your employment with MOORES being terminated ‘with cause.’
If I’ve been misinformed or do not have all the facts please call me, as my door and phone lines are open!
Sincerely,
Steven Nichen
Vice-President of Operations
The text above in bold and in upper case are as they appeared in the original warning letter from Nichen to Gonzalo.
Adriana Gonzalo began her employment as a tailor with Moores The Suit People on Oct. 13, 1986. She was fired on Dec. 21, 2001, when she was 58. She worked a 40-hour week and earned $11.40 per hour or about $23,700 per year.
During her time at Moores, there were two tailors employed — herself and Huong La. They worked together in the sewing room at the back of the store. The pair worked out between themselves when they would take holidays and ensured they did not take holidays at the same time as one tailor had to be available at the store.
In 2001 Gonzalo told La that she should take her holidays in the summer because Gonzalo was planning to take time off in the winter to go to Chile. Gonzalo said she told her then manager about the plans for a winter vacation and he consented. She bought airline tickets in August 2001 to go to Chile from Dec. 27, 2001, to Jan. 28, 2002 and her first day of vacation would be Dec. 21.
But that manager said he did not authorize her to take a vacation during that time. It appears there was some discussion about a winter vacation, but no exact dates were given.
The blackout period
Moores has a vacation policy in place with blackout periods where no employees are allowed to take time off without approval from management. The policy, officially implemented in 2000, stated that no vacations could be scheduled:
•two weeks leading up to Easter;
•two weeks leading up to and three weeks after Father’s Day; and
•the second week of November through the end of January.
Dave Gower took over the store as manager sometime in 2001. La testified that she heard Gower tell Gonzalo several times that she could not take a holiday in December because of the blackout policy. One time La heard Gower tell Gonzalo that she could not take a holiday in December and she responded, “Too bad, the tickets are booked.”
Gonzalo spoke to a district manager in Edmonton in early 2001 about the vacation. On Dec. 10, 2001, she received a letter from Steven Nichen, vice-president of store operations, that clearly communicated to her that she had no authorization to take the vacation and if she did her employment would be terminated for cause. (See full text of letter below.)
After receiving the letter, Gonzalo said it was clear that she could not go to Chile as planned. But she did not attempt to change her plane ticket.
A few days before Gonzalo left for holidays, Gower spoke to her three or four times and reminded her not to take her holidays in December. He called her into his office and reminded her that Moores had not approved her vacation and, if she didn’t report to work, the company would consider her to have abandoned her job. When she did not show up for work, Moores hired a tailor to replace her.
When she returned from Chile, Gonzalo received her record of employment on which Moores indicated that she had been terminated for cause and she was dismissed due to misconduct because she took an unauthorized vacation.
Worker sought 15 months’ pay
Gonzalo was seeking 15 months’ pay based on the fact it took her about 15 months to find a job with another employer. But the court rejected her claim.
Justice D.C. Hunter of the Saskatchewan Court of Queen’s Bench said the blackout policy for vacations was instituted in 2000 and a copy of the policy was posted outside the sewing room.
“It may be that (Gonzalo) did not bother to read the policy, but I am satisfied that it was posted and available for the employees to read,” said Justice Hunter.
Justice Hunter also said the Dec. 10 letter from Nitchen to her was very clear about the repercussions for taking a holiday during the blackout period.
Generally speaking, companies must establish the following factors in order for a breach of a company rule to constitute just cause for discharge, the court said:
•the rules must be distributed;
•the rules must be known by employees;
•the rules must be consistently enforced by the company;
•the employee must be warned that they will be terminated if a rule is breached; and
•the rules must be reasonable.
Moores published the policy about vacation blackouts and it was posted. La was aware of the policy and the court said it believed Gonzalo was too, even though she was not prepared to admit that she knew it.
Policy consistently enforced
There was no evidence that Moores didn’t consistently enforce the policy. Moores will allow time off for an employee during a blackout period if there is a sufficient reason but the local manager can’t approve it, the court said. It must go to the regional managers for approval. In this case, Moores phoned her to advise her that she could not take her vacation as requested.
“Nothing could be clearer than the letter (Gonzalo) received and she was warned that if she took an unauthorized vacation that she would be terminated,” said Justice Hunter. “In the circumstance, I conclude that the rules about vacation blackout are reasonable. It appears that it had been the practice for some significant period before the formal policy was written that employees could not take vacation during the ‘busy’ times at the store.”
The court said Gonzalo decided she was going to Chile for five or six weeks.
“She was unconcerned whether her employer approved the vacation period,” said Justice Hunter. “She received the verbal and written warnings and clearly disregarded the same.”
If the court was wrong in its decision, Justice Hunter said she would have awarded Gonzalo 10 months’ pay in lieu of notice.
For more information see:
• Gonzalo v. Moores The Suit People Inc., 2006 CarswellSask 350 (Sask. Q.B.)
What must be established
Breaching a company policy can be just cause for termination but, as Justice Hunter of the Saskatchewan Court of Queen’s Bench pointed out, there are a number of conditions that have to be met.
In Taylor v. Sears Canada Inc., a 1990 decision by the Nova Scotia Supreme Court, Charles Taylor, a delivery truck driver, violated company rules by taking excessively long breaks and dishonestly claiming overtime. Although the rules were not formally distributed, the driver was aware of them and they had been enforced since 1986.
Taylor had been warned that violations resulted in termination. Upon further breach of the rules, he was fired. The court upheld the termination.
The court quoted from The Law of Dismissal in Canada, a text written by Howard A. Levitt, that stated breach of rules or company policies can also be cause for discharge. Generally speaking, companies must establish the following factors in order for a breach of a company rule to constitute just cause for discharge:
•the rules must be distributed;
•the rules must be known by employees;
•the rules must be consistently enforced by the company;
•the employee must be warned that they will be terminated if a rule is breached; and
•the rules must be reasonable.
Levitt also listed two additional factors in order for a breach of a company rule to constitute just cause:
•the implications of breaking the rules in question are sufficiently serious to justify termination; and
•whether a reasonable excuse exists.
For more information see:
• Taylor v. Sears Canada Inc., 1990 CarswellNS 395, 95 N.S.R. (2d) 170 (N.S. T.D.)
An effective warning letter
Text of the letter from Moores to Gonzalo
Below is the text of the warning letter sent by Steven Mitchen, vice-president of operations at Moores, to Gonzalo warning her not to take time off. The court said, “nothing could be clearer” than this letter.
Adriana Gonzalo,
It has been brought to my attention by Bryan Moore (district manager), Jim Jubert (regional manager) and Mike Lambert (senior regional manager) that you are planning on taking an unapproved vacation (Dec. 21 through Jan. 28) during our VACATION BLACK-OUT PERIOD.
What’s important for you to know is that our vacation policy has been in effect since February 2000 and no store personnel are excluded from this policy without prior approval from upper management.
If you intend on following through with your vacation plans we the MOORES executive committee will interpret your actions as a breach in policy and insubordination, resulting in your employment with MOORES being terminated ‘with cause.’
If I’ve been misinformed or do not have all the facts please call me, as my door and phone lines are open!
Sincerely,
Steven Nichen
Vice-President of Operations
The text above in bold and in upper case are as they appeared in the original warning letter from Nichen to Gonzalo.
