case no. 216/18/esc file no. 127472 in the matter of: the

MANITOBA LABOUR BOARD Suite 500, 5th Floor - 175 Hargrave Street, Winnipeg, Manitoba, Canada R3C 3R8 T 204 945-2089 F 204 945-1296 www.manitoba.ca/labour/labbrd [email protected]

CASE NO. 216/18/ESC File No. 127472 IN THE MATTER OF: THE EMPLOYMENT STANDARDS CODE BETWEEN:

SAMSOM INDUSTRIES LTD.,

Employer, - and -

M.W.,

Employee.

BEFORE: K. Pelletier, Vice-Chairperson

P. Wightman, Board Member

T. Sproule, Board Member

APPEARANCES: N.T., Employer

M.W., Employee

This Decision/Order has been edited to protect the personal

information of individuals by removing personal identifiers.

REASONS FOR DECISION

INTRODUCTION

1. M.W. worked for Samson Industries as a bookkeeper beginning on February 26,

2015. She commenced a maternity leave on June 17, 2016. Her employment was

terminated on June 14, 2017.

2. While M.W. was on leave, N.T., Owner and Operator, discovered that M.W. had been

dishonest with him and this, coupled with the difficulties he had in obtaining

https://www.manitoba.ca/labour/labbrd

mailto:[email protected]

CASE NO. 216/18/ESC File No. 127472

information from her while she was on leave, led to his conclusion that M.W. should

be terminated from employment. He claimed that the termination was for just cause,

and not as a result of her having taken maternity leave.

3. M.W. filed a claim under The Employment Standards Code (the “Code”). On June 19,

2017, pursuant to s. 96.1(1), M.W. was successful in her claim, and the Employer

was ordered to pay $13,221.55, representing payment for wage loss; wages in lieu

of notice; vacation wages; and expenses.

4. N.T. appealed this decision to the Manitoba Labour Board (the “Board”), claiming that

M.W. was not terminated as a result of her pregnancy, or her having taken leave in

accordance with the Code. N.T. contended that he had just cause to terminate M.W.’s

employment, thereby engaging one of the exceptions for the notice requirements,

pursuant to section 62(1)(h) of the Code.

5. M.W. argued that her termination was as a result of her having taken maternity leave

under section 60(1) of the Code. N.T. argued that his decision to terminate M.W. was

not due to her taking maternity leave, but as a result of the issues that came to his

attention after she began her leave.

6. The hearing proceeded on January 21, 2019. At the hearing, the Employer called

three witnesses: N.T.; H.F., co-founder, owner and operator of Armour Plumbing and

Mechanical Ltd. (“Armour”); and E.G.K., Office Manager for the Employer.

7. M.W. was self-represented, and testified at the hearing.

BACKGROUND

8. N.T. is a partner in two other businesses, which are all housed together in the same

complex, namely Armour and Crown Restorations and Renovations Ltd.


9. M.W. commenced working as a contractor for the Employer in September 2014.

Shortly thereafter, in February 2015, she was hired as an employee. She was

terminated from employment on June 14, 2017.

10. The evidence presented demonstrated that M.W. was asked to begin assisting

Armour with setting up an accounting system in or about February 2016. At the same

time, she would continue to perform her duties and responsibilities for the Employer.

11. The evidence from N.T. and H.F. was that an arrangement had been reached that

M.W. would take into account the hours she worked on behalf of Armour, which would

be billed back to the Employer without need for any exchange of funds. Both N.T.

and H.F. confirmed in their evidence that M.W. was aware of this arrangement.

12. Throughout, M.W. denied that she had been involved in any such discussion, stating

that there had been no discussion about billing for hours. She testified that she billed

for hours on two separate occasions after submitting her hours to Armour on a

monthly basis. She characterized this as a “clerical error”, and one which she had

not previously done.

13. In or about June 2016, it came to the attention of N.T. that Armour had been preparing

and submitting cheques to M.W. for hours worked. In response, H.F. testified that he

had approved the cheques, believing that the arrangement had been changed. He

confirmed that he did not seek confirmation from N.T., and that he approved payment

based on hours submitted by M.W. In cross-examination, H.F. noted: “I had no

reason not to trust you.”

14. N.T. testified that when he became aware of direct payments to M.W., he approached

her and requested clarification. In this meeting, N.T. claimed that M.W. admitted to

N.T. that she had billed both the Employer and Armour for the same hours. M.W.


testified that she recalled advising N.T. that she would review her records and clarify.

In any event, it was admitted by both M.W. and N.T. that she was instructed, on the

same day, to determine the amount that she was overpaid and deduct the amount

from her next paycheque.

15. M.W.’s last date of work prior to commencing a maternity leave was June 17, 2016.

On her last day, she was paid all outstanding hours owed to her, minus an amount of

9.5 hours, which she claimed represented the amount which she had been overpaid

by the Employer, as a result of the double-billing.

16. M.W. testified that, based on her records, she concluded that she had overbilled 9.5

hours to the Employer. Once discovered, she brought this information to the attention

of N.T., who reviewed the information and was satisfied as to its accuracy.

Accordingly, she deducted this amount from her last pay.

17. After her departure, it was discovered by E.G.K. that her computer password had

been changed, with the result that no employee had any access to payroll information

or any other documentation which was housed in the computer. M.W. denied that

she had any ill intent in changing the password, and remarked that most of the

information was available through the cloud system, which could be accessed

through any computer. Much of the information was also available in physical files in

M.W.’s office. In short, M.W. suggested that there was little need for the password to

her work computer.

18. M.W. explained that she did not return some of the phone calls and text messages

requesting her password, as there were ongoing matters involving her partner and

N.T., and she did not wish “to be conflicted”.


19. M.W. further testified that she had received an email from E.G.K. on June 27, 2016,

in which was noted that she was expected to return her key and that her alarm code

would be changed. At that time, there was no request for the password. The first

request was received in July 2016, following the birth of her child.

20. A third party bookkeeper, who was initially contracted to take over some of M.W.’s

duties while she remained on leave, had requested some information. This

bookkeeper had requested documentation that N.T. and E.G.K. testified was not

readily available in the office, and was housed on M.W.’s work computer.

21. Nevertheless, the evidence was that there were repeated requests from N.T. and

E.G.K. for the password, which was not provided by M.W. until December 2016.

22. Once the password was obtained, E.G.K. testified that she was able to access some

of M.W.’s records. Specifically, she uncovered through documentation obtained, that

M.W. had failed to accurately report the double-billing to N.T., resulting in an

outstanding overpayment of 3.5 hours. E.G.K. produced timesheets and time logs,

which identified the additional discrepancy.

23. M.W. contended that she did not report the 3.5 hours, as she had worked additional

overtime hours prior to commencing her leave. She did not provide any record of

these alleged additional hours worked. The only record provided for the Board are

employee timesheets prepared by M.W. prior to her maternity leave, which do not

identify the 3.5 hours which she claimed to have worked as overtime.

24. N.T. denied that M.W. had been asked or had worked overtime hours in the weeks

leading up to her maternity leave.

25. There was also some evidence led that there may have been an arrangement for

M.W. to continue working in some capacity throughout the period of her maternity


leave. E.G.K. testified that it was her understanding, based on her discussions with

M.K. that she would “continue while on maternity leave”. It was made clear to the

Board through the evidence that M.W. did not perform any remunerated work for the

Employer while on leave.

26. In the end, once M.W. left on her leave, the evidence was that an advertisement was

posted for an outside bookkeeper. As indicated earlier, it was considered

unnecessary to hire externally, as the work required was deemed “minimal”.

27. The evidence was that the external bookkeeper’s services were not required, as N.T.

and E.G.K. both testified that she had informed them that the work, which they

required, would not occupy much time. In the result, approximately 1.5 months after

M.W. commenced her leave, E.G.K. started performing some of the duties and

responsibilities that had been previously performed by M.W. prior to her commencing

maternity leave.

28. In cross-examination, M.W. suggested to E.G.K. that she had been trained to take

over components of her job prior to her commencing maternity leave. E.G.K.’s

response was that she was “somewhat” trained, but not at the direction of N.T., but

rather because she “liked to learn”. N.T. confirmed that he had not directed M.W. to

train E.G.K. as her replacement.

29. There was another issue raised in the hearing as it relates to the required notice for

a maternity leave. E.G.K. and N.T. both testified that they were unaware of M.W.’s

last day of work until she announced suddenly in or around June 14, 2016 that her

last day would be Friday, June 17, 2016. M.W. indicated that it was no secret that

she would be proceeding on maternity leave. She denied not having provided a date

for the commencement of her leave, but could not say with certainty when notice had


been provided. She acknowledged that she did not provide written notice of her

leave.

30. M.W. has also claimed payment of dental benefits. At the commencement of her

maternity leave, the Employer had yet to implement a benefits program. The program

came into effect on July 1, 2016. The evidence was that M.W. would have been

entitled to the benefits as soon as she returned to employment, even though she had

not paid into the plan.

31. Throughout, E.G.K. and N.T. testified that it was planned that M.W. would return to

employment at the conclusion of her leave. However, the events that transpired over

the course of her leave led to N.T.’s decision to terminate her employment for the

following reasons:

a. M.W. had been obstinate in providing password access to her work computer;

and

b. It was uncovered, following receipt of the password, that M.W. had knowingly

miscalculated the amounts owed due to the double-billing.

32. M.W. testified that she sent an email to N.T. on May 19, 2017 advising that she would

be returning from leave on June 19, 2017.

33. N.T. testified that he contacted a lawyer after receiving M.W.’s email. On June 14,

2017, he sent a letter to M.W., drafted by counsel, in which he informed her that her

employment was being terminated effective immediately. No reasons for the

termination were outlined in this letter. However, a settlement package was enclosed.

34. M.W. itemized all efforts she made following the termination of her employment in

seeking to secure alternate employment. She was successful in gaining comparable

employment on September 11, 2017.


ISSUES

35. N.T. claims that M.W.’s theft, dishonesty and behaviour uncovered while on maternity

leave constituted just cause for her dismissal. N.T. denies that the termination of her

employment was due to or as a result of her maternity leave.

36. N.T. further contends that M.W.’s failure to provide the requisite amount of notice for

her leave is in breach of the Code.

37. M.W. argues that she was not provided any reasons in her termination letter for her

dismissal. She states that she deducted the appropriate amount from her last

cheque, as confirmed and validated by N.T. prior to the commencement of her

maternity leave. She denies that she engaged in any conduct while on leave which

would warrant the termination of her employment. She contends that she was

terminated for having taken a maternity leave.

LEGISLATION

38. There are a number of provisions of the Code raised in the present matter. The

provisions relating to maternity and parental leave, along with the relevant sections

relative to the issue of just cause, are the following:

Length of maternity leave 54(1) Subject to subsection (3), an employee who is eligible for maternity leave is entitled to the following maternity leave:

(a) if the date of delivery is on or before the date estimated in a medical certificate, a period of not more than 17 weeks; or

(b) if the date of delivery is after the estimated date, 17 weeks and a period of time equal to the time between the estimated date and the date of delivery.

Employee to provide certificate and give notice 54(3) An employee who is eligible for maternity leave shall

https://web2.gov.mb.ca/laws/statutes/ccsm/e110f.php#54


(a) as soon as practicable, provide the employer with a medical certificate giving the estimated date of delivery; and

(b) give the employer not less than four weeks' written notice of the date she will start her maternity leave.

Maternity leave if notice given after stopping work 55(1) An employee who is eligible for maternity leave but does not give notice under clause 54(3)(b) before leaving the employment is still entitled to maternity leave if, within two weeks after stopping work, she gives notice and provides her employer with a medical certificate

(a) giving the date of delivery or estimated date of delivery; and

(b) stating any period or periods of time within the 17 weeks before the date of delivery or estimated date of delivery that the normal duties of the employment could not be performed because of a medical condition arising from the pregnancy.

Maternity leave where notice not given 56 An employee who is eligible for maternity leave but who does not give notice under clause 54(3)(b) or subsection 55(1) is still entitled to maternity leave for a period not exceeding the time she would receive if she were entitled under subsection 54(1). Employee entitled to parental leave 58(1) An employee who adopts or becomes a parent of a child is entitled to unpaid parental leave to a maximum of 63 continuous weeks if

(a) the employee has been employed by the employer for at least seven consecutive months;

(b) the employee gives written notice to the employer at least four weeks before the day specified in the notice as the day on which the employee intends to begin the leave; and ...

Effect of late notice on parental leave 58(2) An employee who gives less notice than is required under clause (1)(b) is entitled to the 63 weeks of parental leave less the number of days by which the notice given is less than four weeks.

https://web2.gov.mb.ca/laws/statutes/ccsm/e110f.php#58(2)


Maternity and parental leaves must be continuous 59 An employee who takes maternity leave and parental leave shall take them in one continuous period, unless the employee and the employer otherwise agree or a collective agreement otherwise provides. End of parental leave 59.1(1) An employee's parental leave ends

(a) 63 weeks after it began; or

(b) if subsection 58(2) applies, 63 weeks after it began less the number of days provided for in that subsection.

No termination or lay-off 60(1) No employer shall lay off or terminate the employment of an employee entitled to take a leave under this Division because the employee is pregnant or intends to take a leave or takes a leave allowed by this Division. Reinstatement 60(2) At the end of an employee's leave under this Division, the employer shall reinstate the employee to the position the employee occupied when the leave began or to a comparable position, with not less than the wages and any other benefits earned by the employee immediately before the leave began. Exception 60(3) Subsections (1) and (2) do not apply if the employer lays off the employee, terminates his or her employment or fails to reinstate for reasons unrelated to the leave. Right to file complaint 60(5) An employee who claims

(a) that he or she has been laid off or that his or her employment has been terminated contrary to subsection (1);

(b) that he or she has not been reinstated as required by subsection (2); or

(c) that he or she has not been paid for a paid day of leave in accordance with subsection 59.11(6);

may file a complaint with an officer under section 92.


Termination by employer — notice or wage in lieu of notice 61(1) Subject to section 62, an employer who terminates an employee's employment must

(a) give the employee notice of the termination

(i) in accordance with subsection 67(1) (notice period for group termination), if that subsection applies, or

(ii) in any other case, in accordance with the applicable notice period in subsection (2); or

(b) pay the employee a wage in lieu of notice, in accordance with sections 77 (amount of wage in lieu of notice) and 86 (wages to be paid within certain time).

Exceptions to notice requirements 62(1) Section 61 does not apply in any of the following circumstances:

...

(h) when the employment of the employee is terminated for just cause;

39. The onus is on the Employer to persuade the Board, on the balance of probabilities

and on an objective basis, that M.W.’s maternity leave was not a factor in its decision

to terminate her employment, in accordance with s. 60(3) of the Code.

40. The Employer also has the onus of demonstrating, on the balance of probabilities and

on an objective basis, that it had just cause to terminate M.W.’s employment, pursuant

to s. 62(1)(h) of the Code.

ANALYSIS

41. Generally, when dealing with issues relating to an alleged breach of s. 60(3) of the

Code, the Board does not need to address the issue of just cause. It would only need

to consider whether an employer had a valid and justifiable reason for terminating an

employee’s employment, and to deliberate whether that decision was in any way

influenced by an employee having requested or taken a maternity/parental leave.


42. However, in the present case, the Employment Standards Division awarded both

wages for the breach of s. 60(1) of the Code, and wages in lieu pursuant to s. 62(1).

As a result, the Board must first consider whether the Employer has established, on

a balance of probabilities, that its decision to terminate M.W.’s employment was in no

way motivated by her having taken a leave in accordance with s. 60(3) of the Code.

Second, if the Board’s conclusion is that M.W.’s maternity leave was not a factor in

the Employer’s decision to terminate her, this will not end the issue, as the Employer

also shoulders the burden of demonstrating that it had just cause to terminate her

employment.

(a) Termination of M.W.’s employment while on leave

43. It is important to note at the outset that any alleged breach of s. 60(3) of the Code will

be closely scrutinized by the Board. To satisfy the Board that the Employer did not

terminate M.W.’s employment as a result of her pregnancy, or because she took a

maternity or parental leave, the Employer must meet the heavy onus placed upon it

to demonstrate that her pregnancy and correlating leave were not a consideration in

its decision to terminate her employment. Even if it were one of many considerations

that factored into its decision to terminate, it would be deemed to be in breach of

s. 60(1) of the Code.

44. The parties were provided a copy of the decision in Pratt McGarry Inc. and D.G., Case

No. 93/13/ESC, in which the Board was asked to consider whether the employer in

that case had discharged its onus of demonstrating that the Employee had been

terminated for reasons unrelated to her leave. In this decision, the employee’s

position was eliminated due to company restructuring while she was on a maternity

leave. The employee was the only individual whose position was eliminated as a

result of this restructuring. A number of individuals were hired following the

employee’s termination. The company argued that the decision to eliminate the


employee’s position was made taking into account operational requirements, and that

there were no comparable positions for which the employee was qualified.

45. The Board spent considerable time in Pratt reviewing the purpose of the provisions

of the Code relating to the maternity/parental leave provisions in the Code. At p. 28

of the decision, the Board remarked:

Essentially, when read as a whole, the germane provisions of the Code reflect the Legislature’s intention that employees who are pregnant have the right to be absent from the workplace for the purposes of childbearing and childcare and that their job security and conditions of employment are not to be jeopardized or diminished because the leave has been taken.

46. However, the Board also commented:

By protecting women from the adverse employment effects of taking the leave, the legislation does not prevent employers from managing their businesses. As the New Brunswick Labour and Employment Board noted in Re Brunswick New Inc. (c.o.b. Time & Transcript, Moncton Publishing), [2003] N.B.L.E.B.D. No. 12 at paragraph 19, the legislation does not place the employee who has taken leave in a “better position than other employees by virtue of her maternal responsibilities but the legislation ensures that she is in no worse position”. Similarly, in Just Energy v. Dhillon, 2011 CanLII29288, the Ontario Labour Relations Board accepted that the legislation is designed to protect employees who go on leave, but not to provide them with greater rights than others in the workplace.

47. In considering that the company had not met its evidentiary burden of demonstrating

that the decision to summarily dismiss the employee in Pratt, the Board considered

that the evidence presented did not demonstrate that a downsizing had occurred

within the company. In fact, the only individual who lost their job was the employee,

and a number of individuals hired after her termination in her division suggested that

a workforce reduction had not, in fact, occurred. Further, the Board found that the

duties previously performed by the employee had not actually ceased, but simply

been reallocated. Further, witnesses confirmed that the nature of the call centre work

did not actually change following her dismissal. On the whole, the Board concluded


that the company had failed to discharge its onus that the employee’s leave was

unrelated to the termination of her employment (at p. 43):

[T]he Board notes its essential conclusions: 1) Pratt McGarry failed to prove that there was a financial exigency requiring the elimination of the Employee’s position; 2) the Employee’s position did not actually disappear in so far as the duties associated with it continued to be performed by others; 3) but for her pregnancy and her taking leave, the Employee would have continued to perform her duties and her employment would not have been terminated; 4) the CCA is a “comparable position” to the PMA as that term is employed in subsection 60(2) of the Code; and 5) the Employee was able to discharge the duties of a PMA and the allegations regarding her character, professionalism, communication skills, customer service abilities and reliability were unfounded and did not render her incapable of being a PMA.

48. In the present case, the Employer says that it is as a result of conduct which arose

while M.W. was on leave that led to its decision to termination. In other words, it

argues that the decision to terminate was as a result of her actions, and not related

to her leave.

49. M.W. argues that she was terminated for having taken a maternity leave. Had she

not taken the leave, she contends that she would continue to be employed to this day.

50. Under s. 60(3) of the Code, the Employer is not required to demonstrate that the

termination of employment was for “just cause”. The word “terminate” in s. 60(1) does

not mean a “termination for just cause”. It refers to termination in the general sense.

Whether the termination of an employee was with or without just cause is not the

issue to be considered under a s. 60(1) analysis. Rather, the Board must consider

whether the decision to terminate was in any way predicated by an employee’s

pregnancy or associated leave. Accordingly, without commenting on whether the

termination was for or without cause, the Board is satisfied that M.W.’s leave was not

a factor in the Employer’s decision to terminate her employment. In other words,

other than the timing of M.W.’s leave, there was no evidence led at the hearing that


satisfactorily established that M.W.’s pregnancy and associated leave were factors in

the decision to dismiss her. The Employer has satisfactorily demonstrated that there

were significant issues that arose during her leave that led it to question the viability

of the employment relationship.

51. In fact, while the overbilling issue came to the attention of the Employer prior to M.W.

proceeding on leave, at the time that she left, it appeared that the issue had been

satisfactorily resolved and that there were no residual issues outstanding. While

there was a suggestion in the evidence that M.W. would not be returning, and that

N.T. advised her to start looking for alternate employment, this was not sufficiently

established. The Board is left with the evidence and conclusion that it was the

Employer’s expectation that she would be returning to employment following her

leave. This is further strengthened by the evidence that there had been discussions

with M.W. about her continuing to perform some of her duties while she remained on

leave. The evidence was that M.W. did not perform any remunerated work while she

was on leave. The Employer’s evidence established that it made efforts to secure

the services of an external bookkeeper, who ultimately declined the work on the basis

that there was insufficient work to be performed. At the outset, there was no evidence

to demonstrate that the Employer was attempting to replace or to negatively impact

M.W.’s future employment prospects. When M.W. left for her leave, the Board has

concluded that it was both the Employer and M.W.’s expectation that she would return

to employment following her leave.

52. However, it is clear from the evidence that the relationship quickly deteriorated while

M.W. was on leave. First, there were issues that M.W. did not provide the password

to her computer when requested. M.W. did not dispute that she had received the

request for the password on several occasions, both in writing and via telephone, but

provided a number of excuses for not responding for several months. M.W. testified


that she did not respond as there were issues with her partner and the Company, and

that she did not wish “to be conflicted”. She then testified that the password had been

changed several months prior to her departure, and that no one had requested

access prior to her departure. She also testified that all of the files were available in

paper form, and that there was no information on the computer that could not

otherwise be accessed. Whatever the excuse, the result was that it created

unnecessary tension between her and the Employer.

53. Once the Employer received the password in early December, it then discovered that

M.W. had deducted an insufficient amount from her final cheque to cover the

overbilling. M.W. explained that N.T. had the opportunity to question the amount

deducted when she came to him with the information and for approval prior to leaving

on maternity leave. It was clear from the evidence that N.T. did not have her

worksheets available when he approved the time, and it was well within his right to

request the same. N.T. testified that he “trusted” that M.W. had provided him accurate

information and that he had no reason not to trust her at that time. M.W. further

testified that she had worked additional overtime hours in the weeks preceding the

leave, which covered off the additional 3.5 hours that she had underreported. There

were a number of timesheets entered as exhibits, each of which included additional

hours worked by N.T. In reviewing the final two weeks of work, M.W.’s claim that she

worked additional hours was not supported by the timesheets or the evidence. N.T.

denied that M.W. had been asked or had worked overtime hours in the weeks leading

up to her maternity leave. In the result, the Board is not satisfied that M.W. worked

additional hours in the last few weeks of her employment, as she suggested.

54. Accordingly, the Board is satisfied that there was a 3.5 hour discrepancy, which was

discovered while M.W. was on leave. N.T. considered this “theft”, while M.W.

indicated it was an “oversight”. However characterized, the result was that this


incident, coupled with what N.T. described as M.W.’s “challenging” behaviour in

attempting to secure the password to the Employer’s computer, led him to conclude

that the employment relationship had come to an end.

55. The consideration of a termination while an employee is on maternity/parental leave

is done on a case-by-case specific manner, and employers are highly scrutinized in

their actions when an employee is terminated while on a protected leave. However,

on the basis of the facts presented, the Board is faced with intervening events that

occurred while the employee was on leave, leading it to conclude that the Employer’s

motivations for terminating M.W.’s employment were in no way motivated by her

having accessed or taken maternity or parental leave. The Board finds that M.W.’s

termination was directly related to her conduct while on leave. In that context, it is

not necessary for the Board to determine whether the termination was for or without

cause, under a s. 60(1) analysis.

56. A brief note on the issue of expenses, resulting from the Director’s decision to award

wage loss pursuant to s. 60(1) of the Code. In the Director’s decision, M.W. was

awarded $467.10, representing a dental expense incurred on or about November 1,

2017, along with a parking reimbursement expense, in the amount of $12.05. As

M.W.’s s. 60(1) claim has been dismissed, M.W. is not entitled to the said

reimbursement. In the same way, M.W. is not entitled to any vacation wages, which

had previously been awarded to her by Employment Standards.

(b) Just cause

57. As noted above, generally a s. 60(1) analysis would end at this junction, without need

for a consideration of whether or not the termination was for just cause. However, in

this case, the Employment Standards Division also awarded payment in lieu of notice,

which the Board is now required to consider.


58. The burden of proving justification for the dismissal of an employee rests upon the

employer. In doing so, the standard of proof is on a balance of probabilities. Each

case will be considered on the basis of their individual facts and circumstances.

59. The Employer has alleged that it had just cause to terminate the employment of the

Employee without notice, pursuant to Section 62(1)(h) of the Code. In applying

provisions of the Code, the Board must be mindful that the Code is minimum

standards legislation, which purpose is to provide protection for employees and

prevent their exploitation. The Code “must be interpreted as being remedial and must

be given the fair, large and liberal interpretation that best ensures the attainment of

its objects.” [The Interpretation Act, C.C.S.M. c. 180, s. 6].

60. The seminal case on the modern concept of just cause is found in the dissenting

opinion of Schroeder, J.A. in R. v. Arthurs, Ex parte Port Arthur Shipbuilding Co.,

(1967), 62 D.L.R. (2d) 342 (Ont. C.A.) rev’d [1969] S.C.R. 85:

If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of willful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee. (p. 348)

61. Underlying the issue of just cause is the principle proportionality. The law recognizes

that an effective balance must be struck between the severity of an employee's

misconduct and the sanction imposed.

62. The two step test to determine just cause was established in the Supreme Court of

Canada case of McKinley v. BC Tel et al (2001), 2001 SCC 38 (CanLII), 200 DLR

(4th) 385:

Step one: has the evidence established the employee’s misconduct on a balance of probabilities?

https://www.canlii.org/en/ca/scc/doc/2001/2001scc38/2001scc38.html


Step two: If so, did the nature and degree of the misconduct warrant dismissal?

63. What McKinley tells us is that context is critical and the facts in each case

determinative. There is a balance between the severity of the misconduct and the

sanction imposed because of it. The essential question is, does the punishment fit

the crime?

64. The Board must first consider if the incidents relied upon by the Employer were cause

for discipline and then, if so, whether or not summary dismissal was the appropriate

consequence. The first issue relied upon by the Employer is M.W.’s failure to

adequately identify the amount of hours that she was to deduct from her final pay as

a result of the overbilling issue. The Employer says that this constitutes “fraud” and

“theft”, which on its own is sufficient to justify summary dismissal on the basis of “just

cause”. The second issue relates to M.W.’s alleged resistance to communicating the

password to her work computer to the Employer, despite its repeated requests. The

termination letter sent to M.W. does not include any reasons for the termination of her

employment, only offering her a severance package. The terms “just cause”, “fraud”

or “theft” are not found in the letter: elements on which the Employer is now relying

upon in support of its decision to summarily dismiss M.W.

65. The allegations presented require a determination of credibility. E.G.K. and N.T.

allege that M.W. engaged in dishonest conduct, resulting in theft from the Employer,

when she failed to adequately account for the double-billing. M.W. disputes this,

stating that N.T. had ample opportunity to question the information which she

presented to him and that he authorized prior to her proceeding on maternity leave.

She outlines that it would have been open to him to request further information or

clarification on the documentation she had provided to him in support. In approving

the deduction, she argues that he sanctioned the withdrawal. In any event, she


remarks that she had indeed worked additional hours in the weeks preceding her

leave, which accounted for the additional 3.5 hours that she subtracted from any

amount she had overbilled.

66. The Board has adopted the oft-quoted and seminal case of Faryna v. Chorny, [1952]

2 DLR 354 (B.C.C.A.), (O'Halloran, J.) as it relates to credibility, and particularly the

principle noted at page 357:

“… In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would reasonably recognize as reasonable in that place and in those conditions.”

67. Having assessed all of the evidence, the Board finds that, on the issue of the

discrepancy in pay, the Employer’s version stands up to scrutiny. E.G.K. was a

credible witness, who was able to recall key components of the evidence. Further,

she was able to corroborate all of her findings and information by documentary

evidence, which was not particularly challenged by M.W. Conversely, M.W.’s version

of events lacked specificity, and was not supported by any documentary evidence.

M.W. laid blame on N.T. for having failed to request adequate supporting

documentation at the time that he approved the additional hours, to which N.T.

responded that he had no reason to doubt the accuracy of the information that was

presented to him.

68. Overall, the Board is satisfied that the version brought forward by the Employer is in

harmony with the preponderance of probabilities, and consistent with the

documentary and viva voce evidence presented at the hearing.

69. However, this is not to say that M.W.’s version did not have some elements of truth

to it. In fact, M.W. willingly acknowledged that she had inappropriately double-billed

both N.T. and Armour and, when confronted, she did not dispute that a discrepancy


had occurred. She prepared the necessary information for N.T., who reviewed her

calculations and approved the deduction from her pay. The Board is also

sympathetic that, at the time, she was imminently proceeding on her maternity leave,

and may not have given the appropriate time to the task, as she otherwise would

have. Further, as M.W. was terminated without notice and without reason, she did

not have access to the information to support her claim that she had accurately

calculated the double-billed amount.

70. While the Board has accepted, on a preponderance of probabilities, the Employer’s

version of events, it is not prepared to conclude that M.W. was dishonest or untruthful

in her evidence.

71. Further, an allegation of theft is a serious one, and must be established on a balance

of probabilities. On the evidence presented, the Board is not prepared to go so far

as to accept that M.W. willingly attempted to deceive the Employer and to steal

3.5 hours from it. Rather, the Board has concluded that the evidence demonstrates

carelessness and inattentiveness by M.W. This conduct, coupled with her

unwillingness to accede the Employer’s request to provide her computer password in

a timely manner, is sufficient to demonstrate that there was some cause for discipline.

72. The second step in the contextual approach involves consideration of the surrounding

circumstances of the Employee and the Employer.

73. As bookkeeper for the past year and a half, M.W. held a position of trust with the

Employer. She had previously worked as an independent contractor for N.T. for a

few years prior to transitioning as an employee. In her capacity, she set up the payroll

system, and converted a number of individuals for independent contract agreements

to employees. She was also responsible for running payroll. When she left on her

maternity leave, she was 38 weeks pregnant.


74. At the time that she departed on her leave, she had full expectation that she would

be returning to employment at the conclusion of her leave. She said that she left on

good terms. This evidence was not disputed by the Employer’s witnesses.

75. When M.W. was terminated at the conclusion of her leave, she was expecting to

return to employment. This caused distress, in that she was not prepared to continue

on parental leave without pay or benefits. Up to that point, there was no evidence to

suggest that M.W. had applied for alternate employment. The evidence was that,

once she was advised that her employment had been terminated, she applied for

several jobs, and was successful in securing alternate employment, commencing

September 11, 2017, three months after the termination of her employment.

76. In any situation, but particularly in the context of the type of work she performs, the

allegations against M.W. are serious ones which would generally mandate a

response. It is understood that any future employer would heavily consider M.W.’s

reliability and dependability in her role as bookkeeper. In this way, allegations of

distrust and theft are severe and may have a detrimental impact on her future

employment prospects.

77. As for the context of the Employer, it explained that it was a relatively small employer,

and relied on its staff and its system to conduct its business. M.W. provided an

inaccurate account of the overbilled hours, which resulted in a shortage of 3.5 hours

reported. This, coupled with M.W.’s obstinate behaviour as it relates to the provision

of her password to the Employer’s computer, left the Employer in a difficult situation.

Specifically, without access to the work computer, the Employer alleged that it was

unable to access files and information which ultimately slowed them down in their

endeavours.


78. In the final stage of the contextual approach, the Board must consider whether the

Employee’s conduct was sufficiently serious that it warranted dismissal. This requires

that the concept of proportionality be considered, requiring that a balance be struck

between the severity of the Employee’s acts or omissions and the sanction imposed

by the Employer.

79. In considering just cause, it is not sufficient for this Board to be satisfied that the

Employer had good and sufficient reason to terminate. It is necessary for this Board

to be satisfied that the manner in which the Employer terminated the employee’s

employment was in keeping with the concept of just cause, as that term has been

defined through the Board’s jurisprudence.

80. There are a number of factors that the Board has considered here, most notable of

which is the following:

a. The Board is satisfied that there were no issues relating to the overbilling issue.

This issue was resolved prior to M.W. proceeding on maternity leave, and she

willingly admitted that she had double-billed both N.T. and Armour. The issue

that arose and formed part of the decision to terminate was that M.W. had

inappropriately calculated the amounts that she was to deduct from her final pay,

namely 3.5 hours of pay.

b. An allegation of theft is a serious one, which in this particular case strikes to the

core of her line of work, requires clear and compelling evidence. As noted above,

the Board is not satisfied that the evidence sufficiently establishes that there was

theft by M.W. Rather, the Board has concluded that she was careless and

inattentive in preparing her accounting of overbilled hours.


c. Upon the discovery of the discrepancy in the hours deducted from M.W.’s final

pay, the Employer did not contact her to gain her perspective on the matter and

to assure itself that it was making the right decision, with the right information.

Instead, the Employer assumed that the information in its possession as correct

and made a decision to send a letter to the Employee, summarily terminating her

employment, giving her no opportunity to be heard or for her concerns to be

addressed. Nor did it provide her with any reasons for the termination of her

employment. Reasons for termination of employment are not generally a

consideration for an Employment Standards Appeal. Rather, this would be

considered in the context of an unjust dismissal claim which would review the

context of the termination of employment and determine whether damages

should flow as a result. But, it is important to make clear in the context of this

matter that the severity of a charge of theft, which was not established in the facts

of this case, must necessarily be considered in context. In short, while not

determinative, it was a factor that was considered by this Board.

d. M.W.’s failure to provide the password to her work computer in a timely manner

caused some difficulty for the Employer.

81. The determination for this Board is whether the Employee’s conduct is sufficiently

serious that it would give rise to a breakdown in the employment relationship. Having

regard to all of the circumstances, the Board is not convinced that the Employer’s

response to terminate was proportional to the Employee’s actions, specifically in light

of the Board’s finding that theft was not established by the Employer. Accordingly,

the Employer has not satisfied the Board that the employment of the Employee was

terminated for just cause and, therefore, the Employee is entitled to the wages in lieu

of notice as provided for in this Order.


(c) Failure to provide requisite notice under the Code

82. In this case, the Employer claimed that M.W. did not provide the required amount of

notice prior to the commencement of her maternity leave in compliance with s. 55 or

58 of the Code. M.W. contended that she provided notice “sometime in May”. She

also explained that it was her intention, and the Employer’s understanding, that she

would be taking a year off, which would include a period of maternity leave, with a

contiguous period of parental leave.

83. There was no reference to any cases commenting on the application of s. 55 or 58 of

the Code, nor the consequences that may flow from the failure of an employee to

comply. However, it is not necessary for the disposition of this matter to consider that

section. It is clear from the Employer’s evidence that it did not take any exception to

M.W.’s failure to provide notice of her leave in accordance with s. 55 or 58 of the

Code. In fact, the evidence of E.G.K. was that, as of M.W.’s last day of work, they

continued to anticipate that she might continue to work for the Employer during her

period of leave. She was granted the time off, without issue. There was clearly no

timely concern raised with M.W. that her failure to give the requisite notice at the

commencement of her leave was a reason for the Employer to consider her

employment at an end. In any event, nothing in s. 55, 56 or 58(2) suggests that a

failure to provide notice is met with a termination of employment.

84. Based on the foregoing, the Board has determined that:

a. there is no evidence to support a conclusion that there has been a violation of

s. 60(1) of the Code. As such, the portion of the Employee’s claim that relates to

wage loss, vacation wages and expenses, is dismissed;


b. the Employer has not satisfactorily demonstrated that the Employee was

terminated for just cause. As a result, the Employee is entitled to receive wages

in lieu of notice in the amount of One Thousand Seven Hundred and Sixty Dollars

($1,760.00); and

c. it is not necessary for this Board to consider whether the Employee provided the

requisite amount of notice prior to the commencement of her maternity leave, in

compliance with Sections 55 and 58 of the Code.

DATED at WINNIPEG, Manitoba, this 16th day of April, 2019, and signed on behalf of the Manitoba Labour Board by “Original signed by”

K. Pelletier, Vice-Chairperson “Original signed by”

P. Wightman, Board Member “Original signed by”

T. Sproule, Board Member KP/cj/acr/lo-s

case no. 216/18/esc file no. 127472 in the matter of: the

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