?In a recent decision, the Administrative Labor Tribunal in Montreal concluded that an employee’s refusal to return to work in person constituted an act of insubordination, but that the conduct was not serious enough to override the principle of progressive discipline and to allow the employer to invoke just cause to justify the dismissal.
Context
At the time of the events, the employee had been working for the employer as a purchasing and inventory clerk for nearly nine years. In the months that followed, during the lockdown imposed by the government in March 2020, the employer informed the employee and his spouse, who works for the same employer as the employee, of the need to do their work remotely.
In its assessment of the evidence submitted at the hearing, the Tribunal noted that the employee’s immediate supervisor, in an informal conversation, would have implied that there was no particular reason not to continue working remotely after the pandemic ended. However, no formal agreement was made between the parties in this regard.
In March 2021, noticing that some organizations had started recalling employees to work, the employer chose to call the employee back to the office on short notice. The next day, the employee’s spouse responded by e-mail, saying that the couple was set up very well at home, the risk of COVID-19 was still significant and, consequently, they had no desire to return to work in person. The employee was dismissed that day and filed a complaint with the Tribunal for dismissal without cause.
The Tribunal’s Decision
When a single act of misconduct is alleged and an employee’s disciplinary record is clean, the employer must demonstrate on a balance of probabilities that the misconduct is serious enough to justify overriding progressive discipline. The misconduct must be so serious that it results in the immediate breach of the relationship of trust with the employer. Mitigating or aggravating circumstances, such as the premeditated or repeated nature of the alleged act, the nature of the employee’s duties and responsibilities, confessions and remorse, seniority and the employee’s disciplinary record, must also be taken into consideration.
In this case, the employee had been in his position for nearly nine years. He had never been disciplined and there was no doubt as to his good work performance. The Tribunal stated that informal conversations between the employee and his immediate supervisor could not constitute an agreement to work remotely permanently and the employer could therefore exercise its management right to require that employee return to work.
By refusing to return to work in person, the employee committed a moderate act of misconduct that the Tribunal characterized as insubordination. However, the Tribunal concluded that the misconduct was not serious enough to result in the immediate and irreparable breach of trust between the employee and the employer, especially since the employee had told the employer that he was willing to discuss the situation. There was therefore no reason to override the principle of progressive discipline. As a result, the Tribunal concluded that the employer had not demonstrated on a balance of probabilities that it had cause to dismiss the employee and upheld the employee’s complaint.
Takeaway
First, the Tribunal clearly recognized in this case that in the absence of a specific policy establishing an employee’s right to work remotely on a permanent basis, it was within the employer’s management rights to require that employees perform their work in person as part of a return-to-work program following the pandemic.
In a context where an employer has to deal with an employee who refuses to return to work as directed by their employer, it should be noted that this misconduct will not systematically be considered serious enough to constitute cause for immediate dismissal, particularly in a case where the employee has expressed their intention to discuss possible solutions with their employer and has therefore not abandoned their job.
In such cases, an employer’s use of progressive discipline in accordance with the long-standing principles is appropriate. A detailed review of the employee’s file should therefore always be done to determine the appropriate disciplinary action in the case of a refusal to return to work in person, when the employee expresses their intention to discuss the situation with the employer.
Louis Thomas Bélanger is an attorney with Fasken in Montreal. © 2023 Fasken. All rights reserved. Reposted with permission of Lexology.