Tuesday, November 27, 2012

(this post provided by Diane MacLean)

Telus Communications v. Telecommunications Workers’ Union, 2012 CanLII 24880 (BC LA)

Date: May 8, 2012 Arbitrator: Mark J. Brown

Grievance: written warning regarding failure to meet ongoing performance expectations; grievance allowed (13 day hearing)



The grievor started working for the employer in 1976. She had two dependent children and an elderly mother living with her. She had been an excellent employee – receiving commendations from customers and corporate awards. She worked in customer service, including sales. Monthly records of employee performance were kept and targets were set, i.e., percentage of calls answered within a certain time period, call length, number of calls per day. Revenue targets were set and an employee is expected to at least reach a threshold (a percentage of the target). If an employee does not meet the threshold consistently (factoring out leaves of absence, sickness, vacation, etc.), the result is coaching. The employer has a nine-step plan to manage ‘gaps in performance’ and distinguishes between ‘culpable’ and ‘non-culpable’ gaps in performance. The first four steps are the same for both categories and include meetings of concern, coaching and counselling. If the performance gap is viewed as culpable, then the steps to follow include: a meeting of concern, a written warning, suspensions, and dismissal. If the performance gap is viewed as non-culpable, then the steps to follow include: more letters of concern, an alternate assignment, if a suitable position is available, and dismissal.

The arbitrator commented that much of the problem between the grievor and the employer arose because they had differing views about how to deal with customer service issues. The employer’s policy contemplated that if a customer calls with a problem, the employee takes the call as if it were a sales call. If the call is not going to generate revenue or it is a problem that would take more than 10 minutes to resolve, the employee is supposed to refer the issue to the appropriate department. Sometimes the call is because of a problem with an order taken by another employee. If it takes longer than 10 minutes to resolve the problem, employees are to e-mail the employer so the information could be used as a coaching tool for the employee who took the initial call. The grievor’s manager said she would get between three to five of these kinds of emails from the grievor compared to an average between zero and two from other employees. The grievor usually had the highest or second highest CST (the time it took to deal with the customer) and often the lowest number of calls per day.

The grievor’s manager reported that from July of 2008 to December 2009, she had several conversations with the grievor, advising her that her focus should be sales. The grievor would improve for a while but then revert back to focusing on customer service (taking full responsibility for a call rather than referring it to the appropriate department). Her manager also advised her several times not to give out her direct phone line or e-mail to customers unless a sale was possible and a follow-up call was necessary, but the grievor continued to give out her direct line and email address.

The employer issued letters to the grievor in October, November, December 2008 and February 2009 indicating that her expected revenue was below expectations. Her manager testified that the problem was linked to the grievor’s reluctance to transfer calls to another department.

May 13, 2009: the grievor was below threshold in February and April and above threshold in March. The employer issued a Bridge Letter – Final Letter of Concern in May 2009. This letter referred to the four earlier letters of concern and the multiple discussions regarding her performance and the need for immediate improvement. The employer then pointed out that her performance continued to be substandard, not showing “sufficient and sustained improvement” and that if there wasn’t this kind of improvement, the grievor could be subject to formal disciplinary action. The grievor made threshold in May 2009 but not in June 2009, so in July 2009, the employer delivered a written warning that a continued failure to meet these expectations would result in further discipline, up to and including dismissal. After this warning, the grievor made threshold for the next six months.

Analysis and Decision

The arbitrator started from the following premises:

• the employer is entitled to set objectives for the organization, in the area of revenue, sales, costs, etc.;

• the employer may set a strategic approach, i.e., focusing on revenue and sales over customer service;

• the employer may set objectives for employees, and for the purpose of this decision, the arbitrator assumed the objectives were reasonable;

The arbitrator decided it was appropriate to apply the criteria set out in Edith Cavell Private Hospital v. Hospital Employees’ Union, Local 180 (1982), 6 L.A.C. (3d) 229. These are the criteria an employer must satisfy if it seeks to discipline an employee for a non-culpable deficiency in job performance.

(a) Did the employer define the level of job performance required?

The arbitrator concluded that the employer did this by establishing key performance indicators.

(b) Did the employer establish that the standards were communicated to the employee?

The arbitrator concluded that the KPIs were clearly communicated. However, he noted that revenue was the only KPI that appeared to be of concern when Letters of Concern were sent out. The arbitrator noted that an employee was given a Letter of Concern when they did not meet threshold revenue, but the letter only referred to the target revenue. The arbitrator stated:

Therefore, while all the KPI’s were communicated to an employee, any Letters of Concern may not have been clear for several reasons. First, the letters referenced one KPI only. Second, the employee was issued the letter when threshold was not met and yet the letter never stated threshold. Third, the adjusted target was not referenced [for example, if an employee had been on vacation]. Accordingly, there existed a potential for confusion on the employee’s part as to exactly where the gap existed in performance requirements in comparison to actual performance.

However, the arbitrator noted that the grievor testified that she understood what the threshold was and understood its relationship to the target. Therefore, in this case, the potential confusion noted above did not exist.

(c) Did the employer show it gave reasonable supervision and instruction to the employee did it give the employee a reasonable opportunity to meet the standard?

The arbitrator concluded that the grievor “understood that the employer wanted her to take less time on calls, take more calls off the queue, and forward calls to other departments if a sales opportunity did not exist.

(d) Has the employer established an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job?

The employer did not conclude that the employee was incapable of performing her job and this is why it decided to take a ‘culpable’ approach and issue a written warning. The grievor met the target on several occasions, that is, she was capable of doing so. Therefore, the answer to this question is “No”.

The arbitrator then found that the letters were not issued in a consistent manner. For example, some employees who were below but close to the threshold did not receive letters while the grievor did. As well, there were some employees who did not meet the threshold two or more times and were not issued letters.

The arbitrator noted and concluded:

While the Employer may have had cause to issue [the grievor] a warning for insubordination based on the above, the Employer did not do so. Instead, the Employer decided to take the approach of issuing [the grievor] a warning letter for not meeting revenue targets. I conclude that the warning letter is not justified as the steps in the performance management process have not been consistently applied.

[Note: the final Edith Cavell factor is that the employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in dismissal. It was not necessary for the arbitrator to deal with this factor, because the employer did not satisfy the fourth factor.]

Sunday, November 25, 2012

Termination overturned where employee disciplined more harshly than other employee in similar circumstances

(this summary provided by Diane MacLean)

 Asco Aerospace Canada Ltd v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Shopmen’s Local No. 712, 2012 CanLII 5488 (BC LA)

Date: January 27, 2012 Arbitrator: Ronald S. Keras

Grievance: Termination (grievance allowed)



The grievor, a machinist, had been working for the employer and its predecessor company since 1989. The employer terminated his employment on November 2, 2011 due to “work quality issues”. This occurred, according to the letter of termination “after multiple warnings, written and verbal” and three events in the month of October. These events had to do with making serious errors and not letting his supervisor know right away. At the hearing, the employer’s witnesses testified that they had lost trust and faith in the grievor. The employer also provided two performance reviews which showed above average performance.

The grievor testified that he did not try to hide his mistakes and that he was not asked for his side of the story at the termination meeting. He said he always talked to his partner but was not aware that he had to talk to his supervisor over every little issue.

The employer argued:

… with the following facts: three incidents of discrepancies, the Employer having spoken to the Grievor three months earlier, the Grievor being aware of heightened concerns about safety and quality, the Grievor not recording problems, the Grievor giving implausible theories and the Grievor minimizing discrepancies, that the Employer had lost their faith in the Grievor. The Employer, bargaining unit, and non-bargaining unit employees have lost their faith in the Grievor as the Grievor is unable or unwilling to address these issues. The Employer described the Grievor’s testimony as self-serving; that he said he was happy with the new house rules, but that it is or was clear that he chose not to follow the rules and not to report deficiencies to his Shift Leader or management.

The Employer pointed to case law concerning repeated incidents of inattention; serious repetitive errors; skilled job quality issues; skilled employees held to a higher standard; case law about deliberate concealment of discrepancies; discipline based on a case by case inquiry; and a case involving reinstatement to a different position.

In its arguments, the union criticized the employer’s investigation process which was described as “a series of incorrect assumptions, a case based on erroneous assumptions with the most serious discipline”. As well, a “minimum level of fairness” required giving the grievor a chance to explain himself. The union also compared discipline other employees received for similar infractions and argued that the grievor had been singled out and treated differently.

Analysis and Decision

The arbitrator referred to the three questions set out in the Re Wm. Scott & Co. and Canadian and Allied Workers Union, Local P-162, [1977] 1 C.L.R.B.C. 1: Are there grounds for discipline? Is discharge appropriate in the circumstances? If not, what is the appropriate disciplinary response?

The answer to the first question was “yes”; there was cause for some discipline. The real issue is whether discharge was appropriate in the circumstances. The arbitrator agreed with other arbitrators that the progressive discipline approach is “dependent upon the nature and seriousness of the breach, the culpability of the employee and whether or not that employee had shown remorse or responsibility for their actions”. Was the grievor’s culpability greater than other employees?

In this case, the union argued that other another employee received written warnings and a suspension for the same kinds of things that the grievor was reported to have done. However, the employer argued that the grievor had four incidents in the space of four months and tried to hide them and this made the situation different and justified termination.

The union had provided an example of another employee with a record of warnings and a suspension, who tried to fix a problem without telling anyone. The arbitrator stated:

In the instant case [the grievor] was aware of the House Rules and the emphasis on procedures, however he was shocked at his termination meeting as termination was quite unexpected. In this case "Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment" (Wm. Scott). In my view the treatment of [the other employee] was more in line with the “consistent policies of the Employer”.

The arbitrator considered cases where employees had concealed defects where the results could have been catastrophic, and where a dismissal would be upheld. However, in this case, although the grievor did not follow the proper procedure (a serious offence), he did not completely conceal discrepancies in that he told his co-worker on the afternoon shift. The arbitrator also noted that the grievor’s record could not be described as abysmal – “it was similar to a number of other employees and better than some.” It also included two above average performance reviews. As well, the evidence did not show that the grievor was aware that another ‘quality’ issue could lead to his dismissal.

The arbitrator then considered whether the employment relationship was capable of restoration and stated:

There comes a point, with some employees, where the inescapable conclusion is that the employment relationship cannot be restored. In the Cominco case (supra), the Grievor had been disciplined six times, including a thirty-day suspension. That relationship was at an end. In the current case the Grievor, prior to discharge, had a record which was quite similar to a number of other employees. There was no evidence that he had ever been suspended. Some other employees had been suspended. He had a number of warnings, verbal and written, which were stale-dated, very similar to other employees. He had a current August 4th, 2011 - Written Instruction Warning Notice. That was the only live discipline on file at the time of his termination.

The problem for the employer’s case was in three primary areas:

1. A careful review of the employer’s history shows limited discipline for employee discrepancies. There was a suspension and warnings, but there did not appear to be any other dismissals.

2. Progressive discipline principles proceed on the theory that if employees are warned of behaviour and performance issues, they will have an opportunity to improve. Here the grievor was not given an opportunity to correct his work performance or explain his actions.

3. The employer reached some conclusions without a factual basis for them.

The arbitrator reviewed the events one more time and concluded that there was some level of concealment in the grievor’s conduct. The arbitrator concluded:

On a careful review of the evidence, the testimony and the submissions of counsel, the Employer’s case cannot succeed. The Employer arrived at a decision to terminate the Grievor’s employment in which some considerations were based on conclusions that were simply not correct. The Employer’s sanction of termination was not consistent with sanctions for other employees involved in similar conduct.

In the result, I find that the sanction of termination is excessive in the particular circumstances of this case. In cases such as this the appropriate corrective action program is one of progressive discipline for reasons well stated by the Arbitrators referred to in the preceding case law. One particular purpose of the progressive approach is so that an employee knows and understands the eventual consequence of not improving behaviour or, in this case, not improving work quality and following procedures. In this case, termination is not “in accord with the consistent policies of the employer” (Wm. Scott).

The arbitrator ordered that the grievor be reinstated with no loss of seniority and the termination be replaced with a ten-day suspension. Further the arbitrator stated:

[The grievor] will be responsible for rebuilding the trust in the employment relationship primarily by respecting the authority of Shift Leaders and management in a concrete way, such as being vigilant in following procedures and restricting his own judgment to permitted judgments and in particular, involving Shift Leaders in any decision(s) associated with a discrepancy or a suspected discrepancy.