Employer slams door on problem worker

Worker who didn't get along with other employees fired for poor performance

This instalment of You Make the Call features an employee of a kitchen cabinet manufacturer who claimed he was wrongfully dismissed after he was reluctant to move to another position.

Roy Somir, 46, began working for Thornhill, Ont.-based Canac Kitchens in 1984. Over the course of the next 21 years, he held a number of positions with the company including foreman in the machine shop, shipping department, one of the production lines and the paint shop. In each case he supervised between 25 and 40 employees.

Somir was often reluctant to move to different areas of the company because he preferred to concentrate in one area. As a result, he sometimes objected to transfers and also had confrontations with other employees on occasion.

On Jan. 12, 2005, Somir’s manager told him he was being transferred to be foreman of another production line. Somir was frustrated since he wanted the chance to get production on his current line up to the standard and not leave before his work was complete. However, he was told there was no alternative. Somir testified this made him suspicious the company was trying to get rid of him and suggested to his manager if that was the case Canac should fire him rather than transfer him.

Somir was to go home and come back to work the next day. However, at the end of the day he was told to stay home until the following Monday, Jan. 17, 2005. When he did return, management called him into a meeting where he was told he was being terminated for performance issues. Somir testified he told management he hadn’t refused the transfer and was ready to go back to work.

Canac said the decision to transfer Somir was based on the fact his existing production line was performing below target and this was because of his strained relationship with the workers he supervised. The company felt he would be better off filling an open position on another production line and had no intention of firing him. It claimed Somir refused the transfer, which constituted insubordination, and demanded to be dismissed with a severance package, though he never stated he was quitting.

The company said Somir did not indicate he was willing to go through with the transfer and it felt “it was not worth begging” him to stay. It decided to terminate him on Jan. 21, 2005 with a severance of seven months’ wages.

You Make the Call

Was Canac justified in terminating Somir?
Was Somir wrongfully dismissed?

If you said he was wrongfully dismissed, you’re right. The court found in order for there to be just cause, Canac would have had to have addressed it directly with him at the Jan. 21 meeting. However, it had already decided to terminate him for poor performance by that point and didn’t give him a chance to explain his desire to continue working.

“(Canac) did not intend to put themselves in a position in which (Somir) might retract his refusal and accept a transfer,” the court said. “Accordingly, Canac foreclosed any right it might otherwise have had to terminate (Somir) for cause by proceeding to announce its termination decision at the outset of the meeting.”

The court found Somir never said he wanted to quit. He was only willing to leave if he was terminated with a severance package. His return to work before the meeting indicated his desire to continue his employment and he tried to plead for his job after management informed him of his termination.

Because there was no cause or no notice, the court found Somir was entitled to longer than the statutory minimum notice given in his severance package. He was awarded 16 months’ pay in lieu of notice, totalling $125,961.28.

For more information see:

Somir v. Canac Kitchens, 2006 CarswellOnt 8108 (Ont. S.C.J.).

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