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...
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