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).
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
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).
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.
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
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.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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