Wal-Mart ordered to pay pharmacist $29,000

Pharmacist fired after getting into verbal confrontation with service-station employees
|employmentlawtoday.com

An Ontario court has ordered Wal-Mart to pay a former pharmacist more than $29,000 after he was fired without cause.

Peter Tomala worked at Wal-Mart from August 1998 to June 9, 2003. His monthly compensation, including salary and benefits, was $8,409.96 — or about $100,000 per year.

On June 4, 2003, Tomala was working a regular shift from 10 a.m. to 6 p.m. He decided to take his car into the service station operated by Wal-Mart at the same store where he was working as a pharmacist.

He returned to get his car later that same morning and realized from the work order that the tire pressure on all four wheels had been set to 32 pounds per square inch (PSI). This upset him because he had not asked for the tire pressure to be checked. He knew the manufacturer’s suggested inflation was 32 PSI for the front tires and 26 PSI for the rear tires.

Tomala was very concerned about his tire pressure, considering it a safety risk, and therefore made a considerable fuss about it when he came to retrieve his car.

He told one of the employees. Harris, that the tire pressures were indicated on the doorframe. Harris said the tire pressures were not indicated on the driver’s doorframe, and Tomala pointed out that it was listed on the passenger’s doorframe. Tomala told him the correct pressure, and Harris said he would adjust the pressure.

But when Tomala left work that evening, he noticed that his front tires appeared soft. He checked the tire pressure and found them to be reversed — 26 PSI in the front and 32 PSI in the rear.

Tomala, who was very agitated, brought his car to the middle service-station door and drove the front end into that bay. He started inflating his front tires. An attendant approached Tomala and told him he was not supposed to be in the service area.

A verbal confrontation ensued, and Tomala used profanity.

“(Tomala) was agitated, angry, spoke loud and told the two attendants they were incompetent,” the Ontario Superior Court of Justice said.

One of the attendants complained to management at the Wal-Mart store about Tomala’s behaviour. On June 9, 2003, Andrew Matthes, the district manager, met with Tomala and reviewed the incident.

Tomala did not deny that he used inappropriate language and that he was upset at the attendants for having wrongly inflated his car’s tires.

At that same meeting, Matthes completed a termination notice — known at Wal-Mart as an “exit interview” — and told him he was dismissed.

Wal-Mart’s position

Wal-Mart said the conduct justified dismissal because Tomala breached the code of conduct required of all Wal-Mart employees. The code requires at all times that an employee not use any profanity, be respectful and not harass any other employee.

Wal-Mart said that by his conduct, Tomala breached all three rules of conduct. It argued that the requirements of the code of conduct were essential terms of the employment contract and Tomala knew he was subject to dismissal if he breached them.

Tomala’s position

Tomala said the incident was a verbal confrontation caused by an unfortunate series of mistakes about the tire pressure. It was an isolated and brief episode. It had nothing to do with the plaintiff’s functions as a pharmacist.

Tomala had an excellent record with Wal-Mart all through the term of his employment prior to that date. He took the position that if disciplinary measures were required, dismissal was totally inappropriate and excessive in the circumstances.

The court’s decision

The court agreed with Tomala’s point of view. It found he had been verbally abusive to the other employees, but said that incident had to be put into context.

“His conduct was not justified but it was certainly not gratuitous and premeditated,” the court said.

The episode lasted only a few minutes and there was no evidence that Tomala put anyone’s health or safety at risk.

“It must be remembered that what (Tomala) actually did was drive the front of his vehicle into one of the units and use an air hose,” the court said. “Although he was unauthorized to do so, it was not conduct which can be described as dangerous. Handling an air hose does not require particular skill.”

The court said the evidence was clear that Tomala had an excellent work record. His performance reviews all indicated a rating of “exceeds expectations.”

The court found Matthes went into the June 9 meeting with Tomala with the intention of firing him.

“He did not take even any time to consider his decision,” the court said. “He never tried to understand why Tomala reacted the way he did, if there were extenuating circumstances or whether another, less drastic disciplinary action was warranted.”

It found Tomala’s conduct did not constitute gross misconduct as defined by Wal-Mart standards.

“In any event, Wal-Mart is not entitled to decide that just any conduct will justify dismissal at law,” the court said. “If Wal-Mart wishes to specify that an employee will be terminated for conduct, which would not generally warrant dismissal at law, it is free to do so but it must then also comply with the reasonable notice provision of the law.”

The court said it was a single incident of misconduct by an otherwise excellent employee, and found Tomala had been dismissed without cause.

Reasonable notice

Tomala was 55 and had worked at Wal-Mart as a pharmacist for five years. The court determined five months to be a reasonable notice period.

Tomala was also seeking

Wallace

damages — an extension of the reasonable notice period because of the way Wal-Mart handled the termination — but the court said the facts of this case did not merit such an extension.

Therefore, Tomala was entitled to $42,049.80. The court deducted $13,000 for income that Tomala earned during the notice period for a net award of $29,049.80.

For more information see:

Tomala v. Wal-Mart Canada Corp.

, 2005 CarswellOnt 407 (Ont. S.C.J.)

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