Worker quit in a huff over perceived slights

Pepsi employee claimed racial discrimination and constructive dismissal, but court says it was all in his head.

A warehouse worker for Pepsi who quit in anger was not a victim of racial discrimination or constructive dismissal but rather his own anger, the Ontario Superior Court of Justice has ruled.

Harold Ata-Ayi, 59, immigrated to Canada from Ghana and began working for Pepsi in 1980. His employment included annual performance reviews which were usually favourable with the exception of below-target evaluations on four occasions, the last coming in 2003. Ata-Ayi was surprised by the most recent below-target review and testified he felt “insulted and angry” and thought he was being “set up.”

On April 6, 2004, the day after the review, Ata-Ayi refused to sign the review and formally requested early retirement. He claimed the review was “fictitious” and a product of “bad blood and a poisoned environment.” He indicated he expected severance and a retirement package due to his 24 years of good service with the company. His supervisors tried to convince him to reconsider and, when that failed, tried to come up with alternatives such as part-time work rather than full retirement. Ata-Ayi demanded the review be changed and he be given a raise or his retirement request would stand. Pepsi told him the review would not be altered and he would not receive a severance package if he left the company.

Ata-Ayi left Pepsi on April 30, 2004, and brought an action against the company. He claimed the poisoned work environment was the result of racism and gave him no choice but to leave, which constituted constructive dismissal. He said Pepsi failed to follow its human rights policy and he was subject to racism evident through several incidents including being denied promotions and training courses and being called a “monkey” by a supervisor. He also said the company didn’t provide him with a uniform as it did with other employees. Although Ata-Ayi claimed these were ongoing problems throughout his time with Pepsi, he had not raised any of these issues previously. He also said Pepsi’s refusal to change his review and give him a severance package was racially motivated. However, the court learned Ata-Ayi had received several promotions while with Pepsi and the plant where he worked was informal and didn’t require uniforms, though he was issued one in 1997. It also learned the “monkey” name-calling was “a single isolated incident” and Ata-Ayi did not inform Pepsi about it at the time because he didn’t think it was a “big deal.” Additionally, the court discovered Pepsi had in fact offered several training courses to Ata-Ayi and many of his performance reviews recommended he take them. His claim of being denied promotions was also found to be without merit.

The court noted if Ata-Ayi had felt these situations were creating a poisoned work environment, he should have raised his concerns with Pepsi at the time. Because he didn’t, Pepsi ­couldn’t have known if he felt he was in a bad working environment. “It is clear that Mr. Ata-Ayi failed to alert Pepsi to numerous claims asserted in this lawsuit until April 6, 2004,” the court said. “There is no evidence of Pepsi having swept complaints under the carpet or whitewashed them.”

The court also found Ata-Ayi’s below-target performance review did not constitute constructive dismissal. It noted reviews of this type are important to the employment relationship and good-faith discussions of shortcomings and development plans are a normal part of the evaluation process. It pointed out Pepsi’s attempts to change his mind indicated it didn’t want to terminate him. By refusing to accept the review and giving Pepsi an ultimatum, Ata-Ayi “acted to his own significant detriment.” Although he may have perceived racism in how he was treated, his perceptions were likely affected by his anger from the performance review. The court found Pepsi did not do anything to push Ata-Ayi out and his departure was his own decision. Ata-Ayi’s request for constructive dismissal damages was dismissed.

“Pepsi was entitled to bring legitimate concerns to Mr. Ata-Ayi’s attention,” the court said. “While Mr. Ata-Ayi was free to withdraw his services from the workplace, he cannot receive damages when he himself ended the employment relationship.”

For more information see:

Ata-Ayi v. Pepsi Bottling Group (Canada) Co., 2006 CarswellOnt 6864 (Ont. S.C.J.).

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