Pepsi held employee to too high a standard

Worker awarded $50,000 in damages

Chester v. Pepsi-Cola Canada Ltd., 2005 CarswellSask 130, 2005 SKQB 110 (Sask. Q.B.)

A Pepsi worker fired for allegedly not removing stale product has been awarded $50,000 by the Saskatchewan Court of Queen’s Bench.

Donald Chester started working for Pepsi in 1983 as a route sales representative in the district of Prince Albert, Sask.

His job was to deliver and maintain stock of Pepsi’s products at various retail locations in Prince Albert and the surrounding area. He worked for the company for nearly 20 years, until he was terminated on Oct. 30, 2002, allegedly for cause.

He was paid a commission on his route sales. His tax returns indicate that in the year 2000 his income was $51,802.40, in 2001 he earned $49,081.21 and for the period Jan. 1, 2002, to Oct. 30, 2002, his income including his holiday pay was $38,672.60. Upon termination he was paid a further sum of $2,680 which was characterized as a gratuitous payment by Pepsi.

In firing Chester, Pepsi said he had “willfully, deliberately and repeatedly failed to adhere to company policies regarding product rotation and the removal of expired products from the shelves of the stores he serviced.”

Prior to being fired on Oct. 30, Chester had received a number of warnings from Pepsi for a variety of offences, and had been suspended twice. One of the recurring themes was failure to remove expired products.

On Oct. 17, a supervisor at Pepsi was in Prince Albert. He purchased nine bags of stale product at a Shoppers Drug Mart and gave them to Chester’s supervisor. This, according to the supervisor, was the culminating event which resulted in the termination on Oct. 30.

The onus was on Pepsi to prove Chester’s misconduct warranted dismissal without notice. The court said the evidence showed that between January 2002 and October 2002, at the various locations Chester serviced, Pepsi had located about 39 bags of outdated product.

Chester was given warnings on three occasions in 2002 and received the progressive suspension program as set out in the employee handbook. But the court said following the program on its own was not enough — Pepsi had to satisfy the court that Chester’s performance fell below an objective standard.

The court said Chester handled about 9,500 individual items per week. From Jan. 1 to Oct. 31, 2002, he would have handled about 399,000 items. Pepsi identified 39 bags of outdated products on Chester’s route.

The court noted that Pepsi had not provided any information on comparative performance for the other 12 employees that worked under the same supervisor as Chester.

“This could have assisted me in determining if an objective standard of performance was applied by Pepsi,” the court said. “The only conclusion I can reach is that such evidence would not have been helpful in assisting to satisfy me that Pepsi was applying an objective standard on Chester’s performance.”

The court found Pepsi did not have just cause to terminate his employment. It noted that, after he was fired, Chester’s wife was able to purchase stale dated bags at numerous locations in the area. Pepsi conceded that was possible and the court said that was proof it was an ongoing problem not limited only to Chester.

“The standard imposed by Pepsi on Chester appears to be a standard that was unrealistic and likely unattainable by most (employees),” the court said. “Perfection is a laudable goal but not likely attained by many.”

At the time of dismissal, Chester was 45 and had equivalent to a Grade 12 education. The court found 14 months to be an appropriate period of notice. Using commission figures for 2002, the court said he was entitled to $3,867.26 per month for a total of $54,138.

It deducted the amount Pepsi had already paid him and the amount he earned working at another job for a total award of $49,589 plus interest.

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