Insubordination not enough to warrant firing worker with clean record: Adjudicator

Employee left work after argument with supervisor over vacation request but misconduct wasn't serious enough to provide just cause
|Canadian Employment Law Today|Last Updated: 06/02/2014

An adjudicator has reinstated a Saskatchewan worker who was fired for insubordination.

Jenna Mullie was an employee of Jay’s Moving & Storage, a moving company in Regina. Mullie was hired in August 2008 and, one year later, she signed an acknowledgement that she had read and understood the company’s rules and standards, which included the stipulation that “respect is expected for supervisor’s of Jay’s Group of Companies. This entails taking direction and co-operating in working to achieve the company’s service level.”

Mullie was considered a good worker who performed her job well. However, there were some issues with her relations with her bosses and management’s communications with her.

On April 17, 2013, Mullie approached Terry Pylatuk, the branch manager, and complained about the poor performance of a co-worker with whom she had just worked a job. Pylatuk proceeded to pass on Mullie’s complaints to the co-worker, which made Mullie upset. Mullie considered it a breach of confidentiality, got upset and began crying. She later testified Pylatuk told her he would fire the co-worker and “you will get blamed for it.” About 30 minutes later, Pylatuk received a call from the co-worker saying she had dropped Mullie off at home as she felt she wasn’t capable of working. The other employee was too inexperienced to handle the job on her own, so Pylatuk had to scramble to find another worker, eventually pulling one from another job.

Pylatuk wrote a letter of reprimand for Mullie and called her to tell her to pick it up, telling her she was suspended for five days.

On June 12, 2013, Mullie asked Pylatuk if she could take June 24 off for a camping trip. Pylatuk noted there were two large packing jobs that day, so he refused the request. He reminded Mullie that late June was the busiest time of year because of the end of the school term and leave wasn’t usually granted. Mullie then told him she was going to call in sick that day. Pylatuk responded that if she did, she “would be in bigger trouble.”

Later that day, Mullie got into an argument with Pylatuk and another branch manager over the day-off request, cutting them off and pointing her finger at him. Mullie testified she had asked for June 24 off one month prior and Pylatuk had agreed but changed his mind when she reminded him. She also said he shouted at her to get out of his office and shoved her out. Pylatuk denied he shouted or touched her. Two other employees who were there also didn’t recall such events happening.

Pylatuk wrote a reprimand letter that stated if Mullie didn’t follow direction or disrespect him in the future her employment would be terminated. The next morning, when Mullie was outside smoking with other employees, Pylatuk came out and told her she was being dismissed and not to come back inside the building. No letter of termination was provided and Mullie denied receiving the letter of reprimand.

The adjudicator found Mullie’s leaving of work and having her co-worker drop her off at home without calling her manager was insubordination. The adjudicator also found her demanding of a day off in June was insubordination, and Pylatuk’s reason for refusing was reasonable — and within his management right to use his discretion.

“(Mullie) was argumentative and accusatory towards him. I therefore find that she was insubordinate,” said the adjudicator.

However, the adjudicator considered the fact Mullie had five years without previous discipline while working for Jay’s, and the fact she was upset and felt unable to work on April 17 mitigated her actions somewhat. As for her vacation request, the adjudicator found it unlikely the company previously agreed to the day off, since it was at the company’s busiest time. Either way, Mullie acted aggressive and insubordinate towards the managers while they remained calm, said the adjudicator.

The adjudicator found that although Mullie was insubordinate on both occasions, her conduct did not “strike at the core of the working relationship” and wasn’t just cause for dismissal. In particular, the adjudicator wondered why Pylatuk didn’t follow through with the second reprimand letter and instead proceeded to terminate Mullie’s employment the next day. By not providing Mullie with the letter, Pylatuk didn’t give Mullie an opportunity to improve her behaviour before being dismissed.

In addition, the adjudicator found the manner in which Jay’s terminated Mullie’s employment was inappropriate. He should have done so in private, rather than approaching her outside in front of co-workers and telling her not to come back inside, said the adjudicator.

Jay’s was ordered to pay Mullie two weeks’ pay in lieu of notice, equal to $1,000. Because of Mullie’s insubordinate conduct, she wasn’t entitled to anything more than the minimum two weeks’ notice under the Canada Labour Code. See Mullie and Jay’s Moving & Storage Ltd., Re, 2014 CarswellNat 1196 (Can. Adj.).