Federally regulated worker disagreed with performance assessments, but leaving and claiming constructive dismissal was a resignation
A federally regulated company did not constructively dismiss an employee who took exception to his performance reviews and a performance improvement plan, an adjudicator has ruled.
The American Bureau of Shipping (ABS) is a maritime classification society that develops and verifies standards for marine and offshore assets. Based in Houston, the company has Canadian offices in St. John’s, Halifax, Quebec City and Vancouver.
In 2007, ABS hired Dan Zetea to be a senior surveyor — a job involving the examination of vessels and marine equipment along with the preparation of reports assuring compliance with ABS requirements. Zetea worked closely with clients and monitored the work of subordinate surveyors.
Zetea’s 2016 performance review indicated he was meeting expectations but there were areas for improvement — he needed to get better at mentoring junior surveyors, communicate better with clients and take a larger role in reviewing reports and replying to client inquiries.
On Sept. 17, 2017, Zetea received a warning letter about his performance. The letter referred to the fact that Zetea hadn’t obtained certification that would result in a limit on the work that could be assigned to him, which for ABS demonstrated a negative attitude and “a lack of interest in supporting your colleagues by sharing the workload.” ABS was also concerned with his refusal of training that would limit the type of surveys he could do. Finally, ABS noted that Zetea had failed to complete the Port State Control Test (PSC), which meant he couldn’t be assigned survey work at all until he passed.
Zetea responded that neither the certification nor the survey training was mandatory and he never refused an assignment. He also explained that he had failed the PSC because he had been about to go on vacation and was rushed — he successfully completed the test after returning. He argued that he didn’t have “negative behaviours” and “somebody is trying hard again to put me on the bad spot and even to terminate me.”
Zetea’s next performance review recognized him as a good surveyor with excellent technical skills, but it identified the same areas needing improvement. Zetea disagreed and asked for evidence of his shortcomings, but ABS didn’t fulfill his request.
Performance improvement plan
On May 23, 2018, ABS gave Zetea a 90-day performance improvement plan (PIP) listing examples of client complaints about projects on which he was working and reiterating concerns from the warning letter. ABS indicated that Zetea was to have zero negative feedbacks from clients during the PIP period, complete a minimum of 25 per cent of all report reviews monthly — he had completed just more than 14 per cent over the previous three years — and the completion of five short courses during the first 30 days. A failure to meet these expectations “would result in further disciplinary action, up to and including termination.”
Zetea felt blindsided and refused to sign the PIP. He argued that the PIP was vague on the client complaints and said it was unreasonable to expect zero negative feedback. He also said the report reviews minimum was unreasonable due to his workload and, while the five courses were reasonable for employee development and improvement, he would not complete them in the context of the PIP since he disagreed with it.
Zetea worked under the PIP for three weeks before going on a two-week medical leave. He didn’t complete the forms for medical benefits, so ABS paid him his regular salary. ABS told him he had been overpaid and the matter would have to be reconciled.
Zetea went on a one-month vacation following his medical leave and returned on Aug. 21. His supervisor told him to contact a co-worker about his work assignments, also reminding him to complete the courses set out in the PIP. However, there was some confusion as Zetea had received two records of employment due to a temporary removal from payroll to stop the overpayments during his medical leave. When he inquired to HR, he was told not to do anything until the representative responsible returned from vacation.
On Aug. 24, Zetea asked if he was still employed with ABS and his supervisor replied in the affirmative. The HR representative called him to discuss any concerns he had, but Zetea didn’t return the call. The same day, Zetea’s lawyer emailed ABS’s counsel to advise that Zetea had been constructively dismissed.
On Aug. 27, Zetea emailed his supervisor to say that “I am not anymore employed with ABS.” ABS emailed Zetea stating that he had not been constructively dismissed and he had until Aug. 31 to reconsider and return to work. Zetea declined and ABS sent a letter on Sept. 3 informing him that it had accepted his resignation.
Zetea then sued for constructive dismissal, claiming the PIP made his continued employment intolerable.
The adjudicator found that Zetea had areas requiring improvement and that he “failed to respond to them in a positive manner.” There was no indication the criticisms were unfounded or that ABS treated Zetea any differently than other surveyors.
As for the warning letter, Zetea was correct in that some of the certification and training wasn’t mandatory, but the main concern was his negative attitude and “declining interest in improvement,” which was a legitimate concern for ABS given the time and money it had invested in enrolling him in those programs, the adjudicator said.
The PIP was also part of “an ongoing and good faith effort by the employer” to improve Zetea’s performance, although Zetea strongly disagreed with its expectations. However, the targets were only for the 90-day period of the PIP, so they were not unreasonable, the adjudicator added.
The adjudicator found that Zetea had pride in being a technically competent senior surveyor, but he believed technical expertise was the sole issue in his performance evaluation. ABS disagreed, which it indicated in its warnings that focused on client relations, communications skills and mentoring. Zetea should have understood the nature of the performance concerns, the adjudicator said.
When Zetea returned from his vacation, there was no doubt ABS considered him to be employed and subject to the PIP, as his supervisor confirmed as much. His failure to return the HR representative’s call on Aug. 24 also would have indicated to ABS that he no longer had doubts.
The adjudicator determined that the performance reviews, warning letter and PIP were “good faith and reasonable attempts to work with Zetea to improve his performance and make him a better senior surveyor” and they did not constitute constructive dismissal. In addition, there should not have been any doubt that he was still an employee when he returned from vacation.
“The facts support a finding that Zetea unilaterally resigned, most likely because he considered the PIP repugnant and he did not intend to continue working under it,” the adjudicator said in dismissing the complaint.
For more information, see:
- Zetea and American Bureau of Shipping, Re, 2020 CarswellNat 639 (Can. Lab. Code Adj.).
