Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY Long-term employee awarded $80,000 for constructive dismissal Employer decided employee wasn't qualified for supervisory job he held for 24 years and bumped him to lesser position | BY JEFFREY R. SMITH | AN ONTARIO EMPLOYER must pay 18 months' notice to a long-term employee for deciding the employee wasn't suitable for a job he had performed for more than 20 years, the Ontario Superior Court of Justice has ruled. Dunstan Morgan, 56, was a dock supervisor for Vitran Express Canada, a freight transportation company based in Concord, Ont. He joined Vitran's predecessor in 1984 and was promoted two years later to dock supervisor, where he remained when his employer merged with Vitran. As a supervisor, Morgan oversaw several dock workers who monitored the freight that came through the terminal, checking that it matched the paperwork and wasn't damaged. It was a fast-paced environment, particularly after the merger, which increased the amount of freight. Morgan enjoyed his work and the camaraderie with the workers. He received positive feedback from Vitran for several years. However, in 2003, a new shift manager came in and problems began to surface between them. Problems after new manager arrived In November 2006, Morgan was told he had made several errors which had cost the company money. Morgan felt intimidated, but confirmed his commitment to the company. In January 2007, he received a negative performance appraisal, in which the shift manager told him he wasn't doing his job properly and others didn't want to work with him. Morgan was warned "substantial improvement" was needed and he would be under review. Morgan felt the meeting was "bizarre" and the shift manager acted in a "confrontational, aggressive fashion." In June 2007, Morgan was told his job performance wasn't up to standards and there would be monthly meetings to review his progress, beginning in August. Morgan tried to ensure there were no errors and made some suggestions for improvements. He was conscious of not appearing adversarial, but the monthly meetings didn't happen. In January 2009, Morgan's mother died in the United Kingdom and he requested two to three weeks vacation so he could take her remains to Africa to be buried. When he returned to work, he was told he needed to provide a death certificate to substantiate his absence, which left him "devastated." A few months later, Morgan was suspended for two days for an incident for which he had not been told about prior to the suspension. It was the first time he had been suspended during his 25 years with the company. Employee received suspension for the first time in his 25 years with the company, for an incident which he had not been warned about prior to the suspension. Morgan was called into a meeting with his direct superior and the HR manager in December 2009, where he was given a document outlining "affirmative corrective action." He was told his job performance was lacking, making it necessary to take such action. Numerous errors were listed over the previous five years, though Morgan was confused because many of them had not been brought to his attention at the time. He also felt many of the errors were by dock workers and were common in the industry. During the meeting, Morgan was told Vitran had certain expectations, but they were general and no definite solutions were given. He was also told his superior would shadow him on the job for a few hours each week to help him improve. If he didn't agree with the plan, the company would look for another job for him within the company that fit his skills or, if such a job was unavailable, he would be terminated for cause. Morgan felt intimidated and felt he was the only employee being treated so critically. He felt belittled by the shadowing process; however, it didn't happen the way it had been presented to him. Instead, his superior watched him from a distance and didn't offer any comments or suggestions. This went on for about one month and Morgan wasn't told when it was over, nor was he given feedback. Morgan met with management again in April 2010 and was given a letter outlining other errors he had made. He was also criticized for the dock workers taking excessively long breaks, which Morgan Published by Canadian HR Reporter, a Thomson Reuters business 2014 Continued on page 6 3

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