Lumber worker cut for bad behaviour

Worker was fired after altercation with co-worker but was told it was for poor performance

This edition of You Make the Call features a lumber worker with past performance and behavioural issues who was fired after he threatened a co-worker.

Kerry Allen, 43, worked as a labourer for 11 years at a Fredericton sawmill owned by Devon Lumber Company. On a few occasions during his employment, Allen had problems on his production line and at one point he was told to improve his work or he would be fired. His supervisor at the time thought Allen would have to be fired but after the warning his work improved. Every few months his work would deteriorate again but each time it was brought to his attention he improved.

In 1995 Allen was involved in an altercation with a co-worker. He felt the co-worker was putting too much wood on the production line ahead of him which he couldn’t keep up with. Tempers flared and he grabbed the co-worker by the shirt and laid him on a table. His supervisors warned him about touching other employees and not to do it again.

In 1998 Allen moved to a new work area, and soon other employees began complaining about his controlling attitude. The supervisor also felt he was putting valuable wood on the waste belt. Allen was moved again, this time to a job where he worked alone and didn’t need constant supervision.

On Sept. 18, 2002, Allen was involved in an incident where he physically threatened a co-worker after a disagreement over the workload on the production line. The same day, after a management meeting, Allen’s supervisor brought up his directing of good wood to the waste area and told him, “You had a lot of years in and your little quirks don’t add up — you are no longer an employee of Devon Lumber.”

Allen said he didn’t receive anything in writing saying he was dismissed or any severance. Eventually, he received a record of employment, which gave a reason for dismissal as “unsatisfactory work performance.”

Allen argued the supervisor’s verbal dismissal was unexpected and he had not been told he was on the verge of being fired. He claimed wrongful dismissal and breach of his employment contract.

You Make the Call

Was the employee terminated with just cause?
Was the employee wrongfully dismissed?

If you said Allen was wrongfully dismissed, you’re right.

The court acknowledged Allen was “a difficult employee” who didn’t get along with his co-workers or supervisors. He had performance issues at times but, the court found, each time they were brought to his attention his work improved and nothing further was done.

The court found these situations were treated as isolated incidents and, at the time of his dismissal, Allen had no indication his problems were cumulative and he had no reason to believe his job was in danger.

“(Allen) was warned about his performance and his relationship with other employees on occasion, but he was not told that such conduct, if repeated, would result in dismissal,” the court said.

The court found Allen was dismissed because of his pattern of behaviour at work, particularly the verbal threats he made on Sept. 18, 2002. However, Allen had never been warned his altercations with his co-workers could lead to his dismissal — he was only ever told he might be fired if his job performance didn’t improve.

“Certainly, assaulting co-workers or threatening assault could result in dismissal — but that was not put to (Allen) in those terms,” the court said. “I cannot conclude that (Allen) was even cautioned that if that type of behaviour ccurred again he would be dismissed.” The court found Allen was dismissed without cause and awarded him 44 weeks’ notice.

For more information see:

Allen v. Devon Lumber Co., 2006 CarswellNB 680 (N.B. Q.B.).

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