Can an employee refuse to mop a floor?                                      

The employee in this article was not hired as a janitor. He refused to mop the floor where he worked. His employer subsequently fired him. He sued his employer. The employer came to me and asked me if I would act as the firm’s agent and represent the firm in a small claims court hearing. I agreed to do so.             

In this article, I will quote directly from the transcript of the judgement given by Deputy Court Justice Klein.

The Facts

The plaintiff (employee) was employed with the defendant company, commencing on December 15, 1997.  The defendant is in the business of washing down trucks, called power washing. Although not specifically stated, from the evidence adduced, I venture to say that this was not a large enterprise with many employees. In November 2005, the plaintiff was laid off due to a lack of work and then recalled on February 22, 2006.  But a few weeks later, on March 15, 2006, the plaintiff was fired. He was 50 years old at the time.  In 2005, the plaintiff earned a gross annual income of about $36,500. Following his termination with the defendant, the plaintiff found a new job some 7 months later.

I note that there is history between the parties.  The plaintiff was an employee of the defendant company for about 8 years.  For about the last 2 years of his employ, concerns were raised by the defendant regarding the plaintiff’s conduct and work performance.  On October 2, 2005, the defendant was handed a memo (Exhibit 1) setting out some of these concerns. What precipitated the plaintiff’s firing was his refusal to mop a hallway of about 4 feet wide and 12 feet long; a job that took less than 10 minutes to accomplish.  For the defendant, this was the straw that broke the camel’s back.

In evidence, the plaintiff denied any wrongdoing and basically claimed that he did the job he had done for 8 years and he did so well.  With respect to the floor mopping, he never denied the refusal, claiming that in all his years, this was never demanded of him. I have no doubt that the plaintiff told the defendant witnesses, Mr. Lamb and Mr. Piercey: “I don’t do it at home and I don’t do it at work,” in reference to the mopping.    

The defendant called Ronald Piercey as a witness. Mr. Piercey is the defendant’s operation manager. It was Mr. Piercey who had the task of firing the plaintiff.  Mr. Piercey impressed me as a very sincere witness. He was very candid.  What impressed me most was that he did not appear to hold any grudges against or ill feelings toward the plaintiff.  Mr. Piercey was concerned that the issues raised in the memorandum (Exhibit 1) were increasing and that the plaintiff was “becoming a cancer in the company” among the other employees whom he was speaking with over his woes with the defendant.  

The plaintiff, in evidence, stated that he had no warnings given to him, either written or oral (other than Exhibit No. 1). Mr. Piercey was clear that he had spoken to the plaintiff several times about his attitude and poor work. I believed Mr. Piercey’s evidence on this point over the plaintiff’s. 

Findings

I make the following findings from the oral evidence I heard:

1.      Warnings were given to the plaintiff regarding his conduct and performance by both Mr. Lamb and Mr. Piercey.  I can only deduce that the reason the plaintiff stated that he received no such warnings, as he refused to hear them.

2.      The refusal to do the “mopping” job was really insignificant in itself, but a sign, an indication or “manifestation,” if you like, of a larger issue or problem of insubordination.  It was unreasonable for the plaintiff not to do the mopping.  It was a simple job of (from evidence) between 5 to 10 minutes.  Truly, it was “no big deal” and the plaintiff was foolish not to do the task, especially if keeping his employment may have depended on it.

3.      I accept the defendant’s evidence pertaining to its “bill of lading” of complaints against the plaintiff, including, his poor work performance; his constant personal cell phone usage; his overuse of foul language; his constant argumentative was; his not punching his time card; his constant leaving work early by 5 to 10 minutes and his taking overly long breaks.  

The Law

I am grateful to the parties’ representatives who provided me with their extensive submissions on a number of cases. I don’t intend to review the massive body of law surrounding employment law and wrongful dismissal.  There are certain principles that have emerged which I will try and simplify:

1.      In the absence of “just cause,” an employer is obligated to provide an employee with reasonable prior notice of termination or payment in lieu of such notice;

2.      Determining whether there is just or unjust cause for dismissal depends on the facts of each particular case;

3.      Likewise, in determining what constitutes reasonable notice depends on the facts of each case, having regard to the character of the employment, the length of service, the age of the employee and the availability of similar employment given the particular job;

4.      While an isolated incident would not normally be considered cause for dismissal without prior notice (though, in circumstances it could, depending on the gravity of the action or omission), a number or combination of incidents over a period of time can constitute just cause; and

5.      An element of willful “misconduct” by the employee would constitute a significant factor.    

Analysis

The plaintiff was laid off in November 2005, after he refused to sign the acknowledgment to the terms of the memorandum of October 2, 2005.  The timing raises suspicion.  The defendant set out its concerns; the plaintiff refused to acknowledge these and a month later the plaintiff was laid off. It was suggested by the plaintiff‘s counsel in cross-examination of Mr. Lamb that the layoff was a ploy to avoid severance pay. I must say that it certainly prolonged the evitable.  

Despite my findings that the plaintiff was not exactly an exemplary employee, what troubled me was the defendant’s recall of the defendant in February 2006; Mr. Lamb claiming that it was hard to find people (as the defendant) for his business.  Herein was the defendant’s error, for it appears that after the recall nothing really changed and a few weeks later, the plaintiff’s employment was terminated.  The defendant’s error was in recalling the plaintiff, as it clearly gave the plaintiff the wrong message and raised false expectations.

In struggling to balance the equities in coming to my decision, I have taken into account my findings regarding the plaintiff’s performance or lack thereof, his age, his eight years of service and his recall – a renewed offer of employment.  Taking into account these factors, I am of the opinion, that the plaintiff was entitled to some prior notice or payment in lieu thereof.  

I note that the plaintiff seeks as relief $10,000 which works out to about 3.4 months notice ($35,000 divided by 12 months = $2,916.67 per month. $10,000 divided by $2,916.67 = 3.4 months).  The defendant asks that the plaintiff’s action be dismissed.

              

Order

For reasons given, I order:

1.      That the plaintiff is entitled to ONE month’s payment in lieu of notice for his termination, amounting to $2,916.67, which I round off to $3,000, to include some prejudgment interest.

2.      I am not ordering costs in this action considering the partial success of both parties.

I should point out that although Mr. Williams partially won his case, his financial award was nickels and dimes compared to what he really financially lost. He was out of work for seven months. Since he received $36,500 a year; he lost ($36,500 ÷ 12 = $20,412)  By deducting the $3,000 he was awarded by the court, his loss of income actually came to $17,000. Since he was fired for ongoing misconduct and insubordination, he would not be ineligible for Unemployment insurance and he would have a hard time finding work since he was fired for misconduct.  

His final act of insubordination was a really stupid act. I don’t mop the floors in my home—my wife does it. However back in the mid-1950s when I worked in the composing room of the Winnipeg Tribune, I was asked to mop the floor. I mopped the floor. Later I was transferred to the Editorial Department as a copy editor. If I had refused to mop the floor, I would be out on the street looking for another job.