Canadian Employment Law Today

8 | September 27, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends a termination provision that allowed FIO to terminate Smith's employment "at any time and for any reason" as long as the company provided him with notice of termination or pay in lieu of notice as required by the On- tario Employment Standards Act, 2000. FIO's intention was to evaluate Smith's per- formance at the end of the one-year contract and, if he did a good job, offer him permanent employment. is was standard practice for new hires on fixed-term contracts. FIO also followed a progressive discipline program in which discipline began with a documented "oral reminder" and was fol- lowed by suspensions and termination. It also had an attendance policy where employees were expected to tell the company as soon as possible if they were going to be late or absent so it could temporarily re-assign work. Smith's initial assignment was to work with a machine in the plant that was diffi- cult to operate. Smith didn't like using the machine and noticed other employees didn't usually work continuously on any particular machine. He complained to his team leader and told him that he was taking a community college course in robotics with the hope that he would work in FIO's technology depart- ment someday. e team leader reported Smith's com- plaint to the group leader, who told Smith that he had to work on whatever machine he was assigned. Regardless, Smith only had to work a few hours at a time on the machine in question. Smith also got the impression that the group leader was upset that Smith hoped to move to the technology department and didn't want to be under his supervision. Worker complained about supervisor About one month into his tenure with FIO, Smith complained to human resources that his team leader was setting him up for failure and had become upset when Smith had failed to do some paperwork. HR dis- cussed the matter with Smith's group leader and it was determined the matter had been cleared up. On Feb. 18, Smith was late for his shift, which led to a confrontation with his team leader. e assistant manager for production and Smith's group leader learned Smith was upset with how his team leader was treating him, and the leader had shouted at him when he was late. e group leader brought up Smith's rate of production — 68 per cent, low- er than other employees — but Smith didn't believe it was that low. It was decided to put Smith in another zone of the facility where he would work under another team leader. At a follow-up meeting, Smith again said his former group leader had shouted at him and added that he was being too closely su- pervised and targeted for termination, accus- ing management of manipulating his produc- tion rate to be lower than it was. He claimed he was just as productive as other employees. e assistant manager and an HR rep- resentative met with Smith the next day to review Smith's production records — docu- ments Smith filled out during daily produc- tion. e documents, based on Smith's own figures, showed that his production rate was 68.1 per cent, which was at or near the bottom of all employees on his shift. Smith admitted the entries were his own, but "shrugged off " the numbers, according to the assistant manager. FIO gave Smith a "corrective action no- tice" and oral reminder on March 6 for being 40 minutes late for four consecutive Satur- day overtime shifts. Smith signed the notice but didn't provide any explanation for why he was late. Ten days later, on March 16, the other assis- tant manager for production saw Smith leav- ing work early. Smith was upset and said he didn't like the way he was being treated, so the assistant manager left it alone. Smith had just had a confrontation with his new team leader over not having all his paperwork completed. More harassment complaints e next day Smith called HR before the start of his shift to say he had been to a law- yer and contacted "the government" about his perceived mistreatment at work. e HR representative said that unless he had been fired — which he had not been — he should go to work and meet with her before starting his shift. e second assistant manager was also invited to the meeting. At the meeting, Smith explained he was upset about inappropriate treatment by his new team leader, saying he had yelled at him and used "the 'F' word" about Smith not fill- ing out his paperwork completely the day before. He also complained the team leader didn't assign him to the machines that Smith preferred. e assistant manager offered to investi- gate the circumstances with the new team leader and either assign Smith to a third team leader or work another shift under his current one, but expressed concern that there were now two team leaders with whom Smith had problems. Smith declined both options, saying it would hurt his reputation to keep moving between team leaders. He also stated once again that he was studying robotics and really wanted to be a robotics technician — his interest in the production side of FIO was only for the short-term. Both the assistant manager and the HR repre- sentative said there were no openings in the technology department for the foreseeable future and there were other employees with priority for those jobs. Smith indicated he would like to return to his original position under his original team leader, saying his only issue there was the prolonged assignment on the machine he didn't like. e assistant manager didn't think this was a good idea. e HR representative said that since Smith didn't plan on staying in production for very long and didn't like the options, "maybe it's just best we end this now." She offered to pay Smith for the remainder of his shift that day plus one week's pay, and he agreed. She put together a letter indicating the agreement and gave it to Smith. Smith arranged to retrieve his personal items and left the facility, leaving the impression that he was happy with the resolution. e assistant manager interviewed Smith's new team leader and determined he had sworn at Smith, but Smith swore back. He found this didn't constitute harassment, though he counselled the team leader not to swear around employees. Smith filed a complaint with the board, al- leging his dismissal was a reprisal for raising complaints of workplace harassment. e board found that the only person on behalf of FIO who decided the employment relationship was no longer viable was the HR representative — the two team leaders who Smith accused of harassment played no role in the decision. In addition, the HR repre- sentative took action to work out a resolu- tion with him — she met with him multiple times and, with the assistant manager, tried to work out a solution where Smith could continue working with FIO, either under a third team leader or his current one — de- spite the fact Smith had shown a penchant for being late and having a poor rate of pro- duction. Regardless, Smith rejected the op- tions he was given, said the board. e board determined Smith wasn't dis- missed and he was simply offered a week's pay, which Smith accepted without coercion or compulsion. Since Smith had less than three months of service, he wasn't entitled to notice of termination under the Employ- ment Standards Act anyway. It was a mutual decision to end the employment relation- ship, said the board. "ere is nothing in the evidence to sug- gest that (the HR representative) made her offer to Mr. Smith for any reason apart from the fact that there did not appear to be any other mutually satisfactory solution," the board said in dismissing Smith's complaint. "In such circumstances, I cannot find that the company committed a reprisal for Mr. Smith having sought the enforcement of, or having exercised a right under, the act." For more information see: • Smith v. FIO Automotive, 2017 Carswell Ont 13278 (Ont. Lab. Rel. Bd.). Worker kept saying he wanted to move to different department « from TERMINATION on page 1

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