Worker picked off for low productivity

Worker failed to meet productivity levels company issued to all employees

This instalment of You Make the Call features a worker who was fired for low productivity.

Kyle Jensen was hired in August 2006 to be a picker for IRLY Distributors, a warehouse supplier of retail hardware stores based in Surrey, B.C. Jensen’s duties involved filling orders for goods from inventory and gathering them into shipments to retail stores.

IRLY regularly measured the performance of each picker through items picked from inventory, number of goods picked or orders picked. IRLY gave Jensen a memo on June 14, 2007, telling him his productivity was below the average and he needed to improve. Nothing else was said and Jensen didn’t consider the letter disciplinary.

In December 2007, IRLY gave all pickers a standard for minimum production, with the goal of reducing overtime hours. The union didn’t challenge this as unreasonable. On Jan. 7, 2008, IRLY’s general manager gave Jensen a letter saying his productivity in November 2007 was below the standard outlined in December. However, the manager told him it wasn’t disciplinary and wouldn’t be used against him. The company didn’t say anything else to Jensen until May.

In February 2008, Jensen’s foreman issued a letter saying Jensen had left work without notifying his supervisor that he hadn’t finished the order he was working on. IRLY considered it a verbal warning but Jensen said the letter wasn’t directed to him and he hadn’t seen it.

On May 30, 2008, IRLY fired Jensen and gave him a termination letter outlining verbal warnings, the letters about his productivity and his record from January to April 2008, which showed his productivity was about 30 per cent lower than the next lowest picker and more than 40 per cent lower than the average.

Jensen claimed some of his assignments were more demanding and he didn’t work overtime so his total output was less than others and he wasn’t given a chance to explain his lower output.

You Make the Call

Did IRLY have just cause to fire Jensen for low productivity?
OR
Was Jensen wrongfully dismissed?

If you said Jensen was wrongfully dismissed, you’re right. The board found the collective agreement allowed for dismissal for just cause, but just cause requires misconduct. IRLY didn’t dismiss Jensen for misconduct, but rather low productivity. For that, it must prove the required job performance was defined and communicated clearly, it gave him reasonable opportunity to improve his performance through supervision and instruction and it gave him adequate warnings his job was in jeopardy.

The board found IRLY did clearly communicate the performance standards it required through memos to both Jensen and all the pickers. However, the board did not find IRLY gave Jensen sufficient supervision and instruction to improve his performance. The Jan. 7, 2008, letter referred to his productivity before the company issued its standard in December 2007 and could not be considered a warning, especially since he was told as much. It communicated IRLY’s expectations but didn’t give instruction. The February 2008 letter also couldn’t be considered a warning, the board said, because it wasn’t specifically directed at him.

Though Jensen was informed in June 2007 his productivity was unsatisfactory, he wasn’t given any true warnings or guidance until his firing nearly a year later. IRLY had several analyses on his performance in his record, but he was never given the information or put on notice that if he didn’t improve he would be dismissed.

The board ordered IRLY to reinstate Jensen with full back pay and ruled his termination letter would qualify as a warning that if his performance didn’t meet IRLY’s standard in the future he could be dismissed. See IRLY Distributors Ltd. v. Teamsters, Local 213, 2008 CarswellBC 2963 (B.C. Arb. Bd.).

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