Can an employer terminate an employee for sleeping on the job on multiple occasions? The Ontario Labour Relations Board concluded that such behavior may give rise to just cause for dismissal. Can sleeping on the job amount to “willful misconduct” eliminating the employer’s obligation to pay statutory notice and severance amounts? Well, that depends.
In Ontario, employers who dismiss for just cause must demonstrate willful misconduct in order to avoid statutory notice and severance obligations. In a recent Ontario Labour Relations Board decision, the Board overturned a tribunal officer’s ruling that multiple occasions of sleeping on the job amounted to willful misconduct because the employer in this case failed to demonstrate how the employee’s actions were deliberate or a willful neglect of his duty and not condoned by management.
Decision
In Zhang v. Crystal Claire Cosmetics Inc., the employer, Crystal Claire Cosmetics Inc., terminated the employee, Mr. Z, after he was found sleeping on the job on multiple occasions. After being caught sleeping more than once, Mr. Z. was transferred to another area of the plant where he could be monitored.
Despite the transfer, the employee was again caught sleeping on the job and terminated. The employer argued that it had a “zero tolerance” policy with respect to sleeping on the job and that it warned the employee that such behavior was unacceptable. The employer failed to document any such warnings and failed to administer a formal warning.
The Board stated that the employer had just cause for dismissal as Mr. Z had been caught sleeping on more than one occasion. His actions were not considered trivial, his attitude toward the employer’s reasonable expectations from its employees was unacceptable, and the employer could not be expected to continue the employment relationship.
While Mr. Z’s behavior was considered just cause, under Ontario’s employment standards legislation, an employee is entitled to notice and severance unless he or she is found to have engaged in “willful misconduct” that is not trivial and is not condoned by the employer.
In this case, the Board concluded that the employer failed to establish that Mr. Z’s misconduct was willful and not condoned by the company. First, with respect to the employer condoning the behavior, the employer failed to show how its response eliminated any doubts for Mr. Z about his actions and the resulting consequences (possible termination). The employer did not follow its own policy on progressive discipline, it did not provide any formal warnings, or document any verbal warnings that were given. Also, the employer took eight days to respond to the final incident of sleeping on the job before reacting with termination.
Second, the employer was required to demonstrate that Mr. Z’s actions were intended or he had been reckless. To establish willful misconduct an employer must show that the employees’ actions were conscious and deliberate. Acts that are inadvertent, careless, or thoughtless do not equate to willful misconduct. The Board acknowledged the difference between an employee who “nods off” on the job and an employee who “makes a bed” to deliberately sleep on the job. Here, the Board found that the employer failed to demonstrate how the employee sleeping on the job was a “deliberate” or “willful” act.
Comment and takeaways
For companies operating in Ontario, just cause alone does not relieve an employer from statutory notice and severance obligations. Unless the employee’s actions are willful or deliberate, statutory notice and severance is payable. The onus is on the employer to establish that the employee’s actions were in fact intentional and that the employer took appropriate measures to make it clear that future incidents of such behavior can result in termination. In other words, the employer must take clear and unequivocal steps to demonstrate that it does not condone such actions.
Employers are advised to take proactive steps to ensure that employees are aware of company policies and rules, what actions constitute a breach, and the consequences that will result when such policies or rules are violated. Employers should apply progressive discipline when dealing with misconduct and ensure that mechanisms are in place to accurately record and document actions taken against the employee.
