Worker refused to comply with mask mandate or discuss return after suspension
The British Columbia Employment Standards Tribunal has overturned an order requiring an employer to pay a worker compensation for length of service because the worker actually resigned.
Columbus Meat Market (CMM) was a butcher shop in Vancouver. It hired the worker as a butcher in 2014.
When the pandemic hit, CMM followed provincial public health orders regarding face coverings and required all of its employees to wear face masks in the workplace. The worker initially complied. However, on Feb. 1,7 CMM’s owner instructed employees to wear a mask while working due to a public health mandate. The worker refused, saying that he believed the policy was ineffective and had been applied inconsistently.
The worker continued to work for another hour and took a break. The owner asked to speak with him in his office, where the worker continued to argue against wearing masks. The worker said that he was “not putting that f---king mask on again. I refuse to put it on so go ahead and fire me.”
Worker suspended
The owner told the worker that he was suspended effective immediately, so the worker collected his things and left, telling co-workers that he had been suspended and he hadn’t quit, and they should also refuse the mask mandate.
On March 9, CMM issued a record of employment (ROE) indicating that he wouldn’t be returning to the workplace due to a “shortage of work/end of contract or season” because the worker hadn’t indicated when he would return to work.
The provincial mask mandate was lifted on March 11 and the worker emailed CMM asking for clarification on his employment status. The company responded on March 27, saying that his employment had not been terminated and he was welcome to return to work. CMM invited the worker to meet with the owner to discuss his return.
The worker responded on March 28, saying that he believed his employment was longer possible given the suspension and a “hostile work environment where I anticipate punishment, harassment, and the continued disregard for employment standards to occur if I return.” He maintained that his employment had been terminated due to a change in his conditions of employment when CMM reduced his hours to zero on Feb. 17.
Employment standards complaint
The worker filed an employment standards complaint claiming compensation for length of service following termination of employment under s. 63 of the BC Employment Standards Act (ESA). CMM countered that the worker resigned his position due to his unwillingness to comply with a public health order and telling the owner to fire him. In addition, the worker refused its attempts to make arrangements for him to return to work following the lifting of the mask mandate, the company said.
A delegate for the Director of Employment Standards investigated, noting that the legal test for resignation involved a subjective element of the worker’s intent to quit, and an objective element of the worker’s behaviour being consistent with having quit voluntarily. The delegate found that CMM didn’t prove that the worker intended to quit, as he sent follow-up emails regarding his employment status, told the owner to fire him, and told other employees that he was suspended.
The delegate also found that CMM didn’t seem to believe that the worker had quit, as the company agreed he was suspended and didn’t contact him for some time to confirm any intention to resign.
In addition, the delegate noted that CMM couldn’t claim just cause for termination from the worker’s failure to comply with the mandate or insubordinate conduct if it took the position that he quit. As a result, the delegate determined that the suspension – and the resulting reduction of hours to zero - constituted a "substantial alteration" of the worker’s employment, which was effectively a termination under the ESA.
Resignation
The delegate ordered CMM to pay the worker severance under s. 63 of the ESA - nearly $7,000 - along with interest and vacation pay, plus a $500 penalty for contravening the ESA.
CMM appealed, maintaining that the worker quit his employment.
The tribunal reviewed the delegate’s decision and found flaws in the ruling. It determined that the delegate had misinterpreted the facts, failing to consider that CMM had a right to suspend the worker for insubordination. The Supreme Court of Canada established that an employer’s power to impose a suspension as a disciplinary measure if just cause exists has been recognized in case law, and the worker’s refusal to wear a mask according to a public health order constituted “major insubordination,” placing the company in legal jeopardy and risking the health of others.
The tribunal also found that CMM’s decision to suspend the worker rather than immediately terminate him was within its rights, given the public health circumstances. Further, after the mask mandate was lifted, the worker contacted CMM to ask about his employment status but later refused the company’s offer to resume work. The tribunal ultimately interpreted the worker’s refusal to return as a resignation, noting that the worker clearly had no intention of returning to work if he was going to be required to follow the mask mandate established by provincial health orders.
The tribunal cancelled the delegate’s determination and order, finding the delegate erred in law by awarding the worker compensation for length of service given the worker's effective resignation.
