Insubordination + Insolence = Still Not Just Cause For Dismissal

T & T Disposal Services Ltd. v Leask, 2024 ABESAB 14 (Johnson) is an Alberta Employment Standards Appeal decision involving a number of instances of misconduct by an employee, but a finding that there was no just cause for dismissal.

This case is important because it confirms the high bar an employer needs to meet in order to establish just cause.

Facts

The following were the facts summarized by Vice Chair Johnson:

• Ross Leask was an employee of T & T Disposal Services
• T & T Disposal adopted a masking policy during the pandemic, requiring masking for all indoor work, apart from the shop
• T & T Disposal also had a safety manual which indicated that employees failing to wear PPE would receive progressive discipline (1) verbal warning (2) written warning (3) final warning / suspension without pay (4) termination of employment
• Leask objected to the masking policy, and had said allowed several times that he refused to take part in the employer’s “experiment”
• T & T Disposal had a meeting with the employee where it intended to give him a warning. In that meeting, the owner said something to the effect that he was amazed some people would rather starve than wear a mask, to which the employee responded “fuck off” or “fuck you”, and then immediately apologized, and apologized again later
• Two days after the meeting, Mr. Leask’s employment was terminated, purportedly for just cause
• He filed an employment standards complaint, seeking termination pay. T & T Disposal argued it had just cause for dismissal
• The employee was successful at the employment standards hearing, and T & T Disposal was ordered to pay termination pay
• T & T Disposal appealed to the appeal body, again alleging the employee had repudiated his employment, and further, that it had just cause to dismiss him

Analysis / Conclusion

T & T Disposal’s first argument was that Mr. Leask refusing to comply with its reasonable masking policy was Mr. Leask repudiating (seriously breaching) his employment terms, and that T & T Disposal was entitled to end the relationship on that basis without severance.  

Vice Chair Johnson rejected this argument, finding that there was insufficient evidence that the employee was “clearly repudiating his employment contract”; it was not clear he intended to end his employment by disputing masking: (1) his evidence was that if he was given a proper mask he would have worn it (2) in contrast to Benke v Loblaw, 2022 ABQB 461 and Parmar v Tribe Management, 2022 BCSC 1675, here it is not clear what the employee’s position would have been if he had received warnings before termination.  The Vice Chair went on to provide further support for rejecting the argument in this case, as follows:

[23] Moreover, repudiation involves employees refusing to perform an essential part of their job and so the employer is entitled to treat the employment as having been terminated, since they now do not agree on the fundamental terms of the contract […] In Benke the employee was impaired from visiting stores where masking was required, and so his refusal, linked to his ability to perform his duties. In Parmar, the employee in question was required to work in person, where vaccination was required for communal safety. In the matter at hand, there was a general consensus between the parties that masking was only required when the Respondent attended inside the office/shop/building, which was a small fraction of his day (5%). The masking indoors issue does not prohibit the Respondent from performing the essential part of his duties, driving, which he does alone and where masking is not required. This is unlike seatbelt wearing, which goes to the core of his responsibilities as a driver. [underline added]

The employer’s second argument was that it had just cause to terminate the employee’s employment on the basis of refusing to mask, and insubordination and insolence at the meeting with the employer.  Vice Chair Johnson rejected this argument as well.

The Vice Chair considered the legality of the masking policy, and found it was lawful and reasonable.  However, he also found that the employer had not followed its own progressive discipline policy respecting this employee’s violations of the policy, so it was not able to jump straight to termination on that basis alone.

The Vice Chair found that the employee’s refusal to follow the masking policy, combined with his aggressive communications surrounding it, was insubordinate.  He also found that the profanity in the meeting was insolent.  However, these were not sufficient to establish just cause for dismissal because: (1) he had not received warnings that his refusal to comply with the policy or use of profanity could result in dismissal, and (2) the seriousness of his use of profanity was mitigated somewhat by (a) the fact that the owner first provoked him with his comments, and (b) the employee apologized immediately for his profanity.

In the end, the appeal was dismissed and the employer was required to pay termination pay to the employee.

My Take

This case is definitely on the employee-friendly side, because the caselaw on employees refusing to wear masks has not been favorable to employees in Alberta, and in this case there was profanity to an owner present as well.

However, every case turns on its facts.  In this case wearing a mask was not a core part of his job (because he was not indoors much) and he apologized for directing profanity at his boss right away.  If masking were a core part of his job OR if he had failed to apologize, I think it’s likely this case would have turned out differently.

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