Ontario worker had altercations with leaders, claimed harassment – then took payout
A worker’s brief tenure with an Ontario company came to an end due to a mutual agreement to terminate the employment relationship, and wasn’t a reprisal for the worker’s harassment complaints, the Ontario Labour Relations Board has ruled.
Neil Smith began employment at FIO Automotive, a manufacturer of welded automotive parts for Toyota plants in Stratford, Ont., on Jan. 16, 2017. His employment was under a one-year, fixed-term employment contract expiring on Jan. 16, 2018.
As part of the contract, Smith agreed to provide assistance to support production activities whenever needed, and abide by a daily excess-hours agreement. The agreement allowed FIO to assign Smith overtime beyond his normal 40 hours per week.
The contract also contained a termination provision that allowed FIO to terminate Smith’s employment “at any time and for any reason,” as long as the company provided him with notice of termination or pay in lieu of notice, as required by the Ontario Employment Standards Act.
FIO’s intention was to evaluate Smith’s performance at the end of the one-year contract, and if he did a good job, offer him permanent employment. This was standard practice for new hires on fixed-term contracts.
FIO also followed a progressive discipline program in which discipline began with a documented “oral reminder” and was followed by suspensions and termination. It also had an attendance policy where employees were expected to tell the company as soon as possible if they were going to be late or absent so it could temporarily re-assign work.
Smith’s initial assignment was to work with a machine in the plant that was difficult to operate. He didn’t like using the machine and noticed other employees didn’t usually work continuously on any particular machine.
He complained to his team leader and also told him he was taking a community college course in robotics with the hope he would work in FIO’s technology department someday.
The team leader reported Smith’s complaint to the group leader, who told Smith he had to work on whatever machine he was assigned to. Regardless, Smith only had to work for a few hours at a time on the machine in question. Smith also got the impression the group leader was upset Smith hoped to work in the technology department and decided he didn’t want to be under his supervision anymore.
Worker complained about supervisor
About one month into Smith’s tenure at FIO, Smith complained to human resources that his team leader was setting him up for failure and had become upset when Smith had failed to do some paperwork. HR discussed the matter with Smith’s group leader and it was determined the matter had been cleared up.
On Feb. 18, Smith was late for his shift, which led to a confrontation with his team leader. The assistant manager for production and Smith’s group leader learned Smith was upset with how his team leader was treating him, and he had shouted at him when he had arrived late. The group leader talked to Smith about his rate of production — 68 per cent lower than other employees — but Smith didn’t believe it was that low.
It was decided to put Smith in another zone of the facility where he would work under another team leader.
At a followup meeting, Smith again said his former group leader had shouted at him and he felt he was being too closely supervised and targeted for termination, accusing management of manipulating his production rate to be lower than it was. He claimed he was just as productive as other employees.
The assistant manager and an HR representative met with Smith the next day to review Smith’s production records — documents Smith filled out during daily production. The documents, based on Smith’s own figures, showed his production rate was 68.1 per cent, which was at or near the bottom of all employees on his shift. Smith admitted the entries were his own, but “shrugged off” the numbers, according to the assistant manager.
FIO gave Smith a “corrective action notice” and oral reminder on March 6 for being 40 minutes late for four consecutive Saturday overtime shifts. Smith signed the notice but didn’t provide any explanation for why he was late.
Ten days later, on March 16, the other assistant manager for production saw Smith leaving work early. Smith was upset and said he didn’t like the way he was being treated, so the assistant manager let the matter go.
Smith had just had a confrontation with his new team leader over not having all his paperwork completed.
More harassment complaints
The next day, Smith called HR before the start of his shift to say he had been to a lawyer and contacted “the government” about his perceived mistreatment at work. The HR representative said that unless he had been fired — which he had not been — he should come to work and meet with her before starting his shift. The second assistant manager was also invited to the meeting.
At the meeting, Smith explained he was upset about inappropriate treatment by his new team leader, saying he had yelled at him and used “the F-word” about Smith not filling out his paperwork completely the day before. He also complained the team leader didn’t assign him to the machines Smith preferred.
The assistant manager offered to investigate the circumstances with the new team leader and either assign Smith to a third team leader or work another shift under his current one, but expressed concern that there were now two team leaders with whom Smith had problems. Smith declined both options, saying it would hurt his reputation to keep moving between team leaders.
He also stated once again that he was studying robotics and really wanted to be a robotics technician — his interest in the production side of FIO was only for the short-term. Both the assistant manager and the HR representative said there were no openings in the technology department for the foreseeable future and there were other employees with priority for those jobs.
Smith indicated he would like to return to his original position under his original team leader, saying his only issue there was the prolonged assignment on the machine he didn’t like. The assistant manager didn’t think this was a good idea.
The HR representative said that since Smith didn’t plan on staying in production for very long and didn’t like the options, “maybe it’s just best we end this now.” She offered to pay Smith for the remainder of his shift that day plus one week’s pay, and he agreed. She put together a letter indicating the agreement and gave it to Smith. Smith arranged to retrieve his personal items and left the facility, leaving the impression he was happy with the resolution.
The assistant manager interviewed Smith’s new team leader and determined he had sworn at Smith over the paperwork, but Smith did so as well. The manager found this didn’t constitute harassment, though he counselled the team leader not to swear around employees.
Smith filed a complaint with the board, alleging his dismissal was a reprisal for raising complaints of workplace harassment.
Board dismisses complaint
The board found that the only person at FIO who decided the employment relationship was no longer viable was the HR representative — the two team leaders who Smith accused of harassment played no role in the decision. In addition, the HR representative took action to work out a resolution — she met with him multiple times and, with the assistant manager, tried to work out a solution where Smith could continue working at FIO, either under a third team leader or his current one — despite the fact Smith had shown a penchant for being late and had a poor rate of production.
Regardless, Smith rejected the options he was given, said the board.
The board determined Smith wasn’t dismissed and he was simply offered a week’s pay, which Smith accepted without coercion or compulsion. Since Smith had less than three months’ service, he wasn’t entitled to notice of termination under the Employment Standards Act anyway. It was a mutual decision to end the employment relationship, said the board.
“There is nothing in the evidence to suggest that (the HR representative) made her offer to Mr. Smith for any reason apart from the fact that there did not appear to be any other mutually satisfactory solution,” said the board in dismissing Smith’s complaint.
“In such circumstances, I cannot find that the company committed a reprisal for Mr. Smith having sought the enforcement of, or having exercised a right under, the act.”
For more information see:
• Smith v. FIO Automotive, 2017 CarswellOnt 13278 (Ont. Lab. Rel. Bd.).
Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.
