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.]

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