Long-term worker wins constructive dismissal (Legal View)

Employer decided employee wasn’t qualified for supervisory job he held for 24 years, bumped him to lesser position with same salary – and was ordered to pay 18 months’ notice
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 01/13/2014

An Ontario employer has been ordered to pay 18 months’ notice to an employee after deciding he wasn’t suitable for a job he had performed for more than 20 years.

Dunstan Morgan, 56, was a dock supervisor at 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.

He remained in that the position 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 coming in.

Morgan enjoyed his work and, in particular, the camaraderie with co-workers. He received positive feedback from Vitran for several years.

However in 2003, a new shift manager, Ken Grout, came in and problems began to surface between the two men. Morgan had to report to Grout.

Negative appraisals

In November 2006, Morgan was told he had made several errors that 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 that “substantial improvement” was needed and that 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 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.

While away, his paycheque was not deposited into his bank account and 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 that 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.

In an email to the operations manager, he wrote: “Forgive me if I am wrong but it is as if I have been left to my own devices and people in my management group are almost waiting for me in particular to slip up. Real or imagined, this is the perception I am left with.”

In December 2009, Morgan was called to a meeting with his direct superior and the HR manager 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 transportation 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 Morgan didn’t agree to the plan, the company said it 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 again felt intimidated and felt he was the only employee being treated so critically by the company. He felt belittled by the shadowing process.

However, the shadowing didn’t happen the way it had been presented to him. Instead, Morgan’s superior watched him from a distance and didn’t offer any comments or suggestions for improvement.

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 felt was unfair since other dock supervisors weren’t held accountable.

Morgan was told — in what he claimed was an aggressive manner — to eliminate the errors, and felt he was being singled out.

On more than one occasion, Morgan emailed management to address the errors he had been accused of and explain his side of things, but he received no response.

In June 2010, Morgan injured his ankle on the dock. He continued to work but, after a couple of days, he was told by his doctor to take some time off work.

When he returned one week later, management told him there was no evidence of his injury on the surveillance video. One manager was angry and told Morgan they would fight the workers’ compensation claim.

Skill, personality testing

Later that month, Morgan underwent skill and personality testing. When the results came in, management told him he did not meet the requirements to work in the fast-paced environment of the dock supervisor position.

Morgan was flabbergasted, since he had done the job for 24 years. He also felt he had been set up because the volume of freight had increased while his staff had decreased.

In September 2010, Morgan was told his performance was unsatisfactory and he wasn’t suited for his job. A new position — freight analyst — with the same salary was created for him but there was little supervisory responsibility.

Morgan felt embarrassed about the change and felt it was a demotion. He decided he couldn’t return to work for Vitran as he would be humiliated having to face the workers he had trained.

Morgan sued for constructive dismissal.

Court sides with dock supervisor

The court found Morgan did fine as a dock supervisor for many years before any problems were brought to his attention.

And though he had to take responsibility for the workers under his supervision, many of the errors were routine and happened during other shifts as well.

And, notably, the errors were not brought to Morgan’s attention at the time they happened and he was not given any indication of performance issues until 2006.

This seemed to indicate he was targeted at a certain point in time, said the Ontario Superior Court of Justice.

The way Morgan was treated in the meetings and when he made the workers’ compensation claim was “disrespectful and unwarranted,” found the court.

Morgan tried to act respectfully and discuss the issues with management, but he was either ignored or faced aggression, said the court.

The vagueness with which his job abilities were assessed and what he could do to meet expectations was unfair, said the court, as was Vitran’s inability to explain why Morgan was unsuited for a job he had done for the past 24 years.

The corrective action plan was “doomed to failure in the absence of meaningful feedback” and the alternate position further contributed to a fundamental breach of the employment contract, said the court.

Taking into account Morgan’s tenure at the company and lack of success in finding other work, the court ordered Vitran to pay Morgan 18 months’ notice for constructive dismissal, for a total of $80,911.88.

However, the court denied Morgan’s claim for moral damages, finding his treatment by Vitran was “unfair and unacceptable” but not “nasty and mean-spirited” enough to warrant such damages.

For more information see:

Morgan v. Vitran Express Canada Inc., 2013 CarswellOnt 1591 (Ont. S.C.J.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com.

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