Long-term employee awarded $80,000 for constructive dismissal

Employer decided employee wasn’t qualified for supervisory job he held for 24 years and bumped him to lesser position
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 01/08/2014

An Ontario employer must pay 18 months’ notice to a long-term employee for deciding the employee wasn’t suitable for a job he had performed for more than 20 years, the Ontario Superior Court of Justice has ruled.

Dunstan Morgan, 56, was a dock supervisor for Vitran Express Canada, a freight transportation company based in Concord, Ont. He joined Vitran’s predecessor in 1984 and was promoted two years later to dock supervisor, where he remained when his employer merged with Vitran.

As a supervisor, Morgan oversaw several dock workers who monitored the freight that came through the terminal, checking that it matched the paperwork and wasn’t damaged. It was a fast-paced environment, particularly after the merger, which increased the amount of freight.

Morgan enjoyed his work and the camaraderie with the workers. He received positive feedback from Vitran for several years. However, in 2003, a new shift manager came in and problems began to surface between them.

Problems after new manager arrived

In November 2006, Morgan was told he had made several errors which had cost the company money. Morgan felt intimidated, but confirmed his commitment to the company. In January 2007, he received a negative performance appraisal, in which the shift manager told him he wasn’t doing his job properly and others didn’t want to work with him.

Morgan was warned “substantial improvement” was needed and he would be under review. Morgan felt the meeting was “bizarre” and the shift manager acted in a “confrontational, aggressive fashion.”

In June 2007, Morgan was told his job performance wasn’t up to standards and there would be monthly meetings to review his progress, beginning in August. Morgan tried to ensure there were no errors and made some suggestions for improvements. He was conscious of not appearing adversarial, but the monthly meetings didn’t happen.

In January 2009, Morgan’s mother died in the United Kingdom and he requested two to three weeks vacation so he could take her remains to Africa to be buried. When he returned to work, he was told he needed to provide a death certificate to substantiate his absence, which left him “devastated.”

A few months later, Morgan was suspended for two days for an incident for which he had not been told about prior to the suspension. It was the first time he had been suspended during his 25 years with the company.

Morgan was called into a meeting with his direct superior and the HR manager in December 2009, where he was given a document outlining “affirmative corrective action.”

He was told his job performance was lacking, making it necessary to take such action. Numerous errors were listed over the previous five years, though Morgan was confused because many of them had not been brought to his attention at the time. He also felt many of the errors were by dock workers and were common in the industry.

During the meeting, Morgan was told Vitran had certain expectations, but they were general and no definite solutions were given. He was also told his superior would shadow him on the job for a few hours each week to help him improve. If he didn’t agree with the plan, the company would look for another job for him within the company that fit his skills or, if such a job was unavailable, he would be terminated for cause.

Morgan felt intimidated and felt he was the only employee being treated so critically. He felt belittled by the shadowing process; however, it didn’t happen the way it had been presented to him. Instead, his superior watched him from a distance and didn’t offer any comments or suggestions. This went on for about one month and Morgan wasn’t told when it was over, nor was he given feedback.

Morgan met with management again in April 2010 and was given a letter outlining other errors he had made. He was also criticized for the dock workers taking excessively long breaks, which Morgan felt was unfair since other dock supervisors weren’t held accountable. Morgan was told — in what he claimed was an aggressive manner — to eliminate the errors and he felt he was being singled out.

On more than one occasion, Morgan emailed management to address the errors of which he had been accused and explain his side of things, but received no response.

In June 2010, Morgan injured his ankle on the dock. He continued to work, but after a couple of days he was told by his doctor to take some time off work. When he returned a week later, management told him there was no evidence of his injury on the surveillance video. One manager was angry and told Morgan they would fight the workers’ compensation claim.

Skill and personality test

Later that month, Morgan underwent skill and personality testing. When the results came in, management told him he did not meet the requirements to work in the fast-paced environment of the dock supervisor position. Morgan was flabbergasted, since he had done the job for 24 years. He also felt he had been set up because the volume of freight had increased while his staff had decreased.

In September 2010, Morgan was told his performance was unsatisfactory and he wasn’t suited for his job. A new position — freight analyst — with the same salary was created for him but there was little supervisory responsibility. Morgan felt embarrassed about the change and felt it was a demotion. He decided he couldn’t return to work for Vitran as he would be humiliated, having to face the workers he had trained. Morgan sued for constructive dismissal.

The court found Morgan did fine as a dock supervisor for many years before any problems were brought to his attention. Also, though he had to take responsibility for the workers under his supervision, many of the errors were routine and happened during other shifts as well.

And, notably, the errors were not brought to Morgan’s attention at the time they happened and he wasn’t given any indication of performance issues until 2006. This seemed to indicate he was targeted at a certain point in time, said the court.

The court found the way Morgan was treated in the meetings and when he made the workers’ compensation claim was “disrespectful and unwarranted.”

Morgan tried to act respectfully and discuss the issues with management, but he was either ignored or faced aggression, said the court.

The court also found the vagueness with which his job abilities were assessed and what he could do to meet expectations was unfair, as was Vitran’s inability to explain why he was unsuited for a job he had done for 24 years. The corrective action plan was “doomed to failure in the absence of meaningful feedback” and the alternate position further contributed to a fundamental breach of the employment contract, said the court.

Vitran was ordered to pay Morgan 18 months’ notice for constructive dismissal, for a total of $80,911.88. The court denied his claim for moral damages, finding his treatment by Vitran was “unfair and unacceptable” but not “nasty and mean-spirited.”

For more information see:

Morgan v. Vitran Express Canada Inc., 2013 CarswellOnt 1591 (Ont. S.C.J.).