Fired because of repeated failures to meet productivity targets, a warehouse worker grieved his termination.
The employer did not have just cause to terminate the worker, the union said. Work-related injuries hampered his ability to keep up and terminating him because of these disabilities violated both the collective agreement and the Human Rights Code.
Hired by a grocery wholesaler in 1999, S.B. worked as a warehouse assembler. The job was physical and repetitive. In February 2001 S.B. sustained a work-related injury to his lower left leg. His claim for compensation was allowed, he was placed on modified duties for a short period and by August he had returned to his regular duties.
Another work-related injury
Two years later, S.B. was injured at work again — this time injuring his right ankle. Again he made a compensation claim. S.B. was put on modified duties and was reported to be fit to return to work by the end of March.
Five months later S.B. reported to the compensation board that he was having an ongoing problem as a result of his first injury, claiming that his foot had never healed. In June 2004 — one year after filing a request for a review of this claim — the compensation board denied any further entitlement.
In February 2004, S.B. filed an “incident report” claiming pain and numbness in his hands and fingertips. S.B. saw the employer’s occupational health physician and filed a compensation claim. The problem did not get better, however, and S.B. was unable to continue performing his regular duties. He went off work in June at about the same time that his compensation claim was denied. S.B. successfully appealed this decision.
S.B.’s return-to-work began in November 2005 with three eight-hour shifts per week. However, because he was unable to meet the established weekly performance standard, S.B. quickly attracted the attention of management.
Performance standards
Production Engineers established the performance standards by measuring the slots in the warehouse where the products are located and the travel distances necessary to retrieve the products. Calculations averaged the time it should take for a trained person to retrieve the ordered goods and these calculations formed the basis of employer productivity targets. Employees were expected to achieve 85 per cent of productivity targets in any given week and maintain a 92.5 per cent rate of productivity over a four-week period. Failure to achieve productivity targets was cause for discipline.
By January, supervisors were co-ordinating strategies on how to “cut [S.B.] loose.” E-mails detailing a number of S.B.’s compensation claims and noting that he continued to complain of pain were circulated among managers.
Ongoing pain
S.B.’s hours were reduced, and he was directed to see the employer’s physician again. Over the course of two consultations in February 2006, the employer’s physician confirmed that S.B. was reporting ongoing pain in his foot and that he had consulted his own family doctor and was scheduled to see a specialist.
The employer physician did not rule out a chronic musculoskeletal disorder. While recommending an independent medical evaluation, the employer physician said that with physiotherapy and the use of orthotics, S.B. should be capable of meeting the 92.5 per cent performance standard within two weeks.
S.B. did not meet the performance standard. Interviews concerning his performance held on January 18, 24 and 31 were followed by a cautionary interview on February 6 and a reprimand on February 14. On March 7, S.B. was given a summary of his disciplinary record indicating that he had been terminated. No explanation for his termination was supplied.
The union grieved.
The Arbitrator rejected the employer’s claim that it was entitled to terminate S.B. according to its established policy of progressive discipline. Despite its claims to the contrary, the employer had not properly followed the six-stage discipline process as prescribed. Even if it had, the disciplinary interviews had little relevance because they failed to address the fact that S.B. was disabled.
Employer frustration understandable
That the employer was frustrated was understandable, the Arbitrator said. S.B. had claimed some degree of incapacity for five of the seven years he had been employed. His productivity was unacceptably low.
However, the evidence of the compensation board and the company’s own doctor established that he was genuinely disabled and no malingerer.
“Despite this, the Employer … was far from sympathetic. By 2006, the Employer’s negative, hostile posture, and desire to be rid of the grievor, is manifest in the blunt exchanges between members of management,” the Arbitrator said.
The Arbitrator accepted that management’s “unsympathetic and hostile” attitude towards S.B. and their efforts to fire him contributed to the extreme stress and anxiety that S.B. had been experiencing.
The company did not establish just cause for firing S.B. It failed to follow its physician’s recommendation to conduct an independent examination and instead fired S.B., the Arbitrator said.
Wrongful termination
“I also find that his wrongful termination was the culminating event in the Employer’s unsympathetic and disputative responses to the grievor’s assertions of disability over an extended period, and that as a result the grievor has suffered and continues to suffer from anxiety, stress and general psychological trauma …”
As he would have been laid off when the employer closed the warehouse, S.B. was not reinstated. He was, however, awarded $25,000 in general damages to compensate for lost part-time wages. S.B. was also awarded $20,000 in compensatory damages in recognition of the serious negative psychological effects of the employer’s failure to accommodate him.
