You make the call
This edition of You Make the Call features an airline employee who disputed that he was dismissed due to restructuring.
Abbas Dolly worked as a customer service manager sales (CSMS) in the passenger services department of Air Canada’s airport operations branch at the Vancouver International Airport. He was hired on a part-time basis in August 2016 and became a full-time employee three months later.
Dolly was one of nine CSMSs at the Vancouver airport providing oversight and support to agents who deal with customers.
In 2017, Air Canada informed management that it must cut 100 positions through the first quarter of 2018 as part of a restructuring plan intended to streamline operations. Management determined that the airports branch could cut 12 positions across Canada in the first quarter of 2018, including two CSMS positions — one in Vancouver and one in Edmonton. At the Vancouver airport, they planned to implement a shift rotation of four-on, four-off, leaving one position to cut. Involuntary separation packages were prepared for the 12 employees, which included Dolly.
In choosing Dolly to be the CSMS to let go, management considered performance assessments and seniority. Dolly’s year-end rating for 2016 was “performing at an average level” with “room for improvement,” although Dolly rated himself highly in all categories. In addition, one of the remaining CSMSs had to have training as a premium CSMS — a position dealing with premium products and customers for which Dolly didn’t have training.
When Dolly was told his position was being eliminated and his duties were being distributed to the remaining CSMSs, he was shocked as he felt he had been a dedicated employee and he had received letters of appreciation from passengers he had assisted. He also claimed that other employees had made errors and stolen time, so they were more deserving of a layoff, and one of the CSMSs that was kept over him was on probation and had no airline experience.
Dolly made a complaint of unjust dismissal, arguing that the Canada Labour Code only permitted dismissal for a lack of work or discontinuance of a function. He claimed he was dismissed because of restructuring and not a shortage of work, as he had been scheduled to work overtime immediately before and after his termination and he had not been informed of the reason for his dismissal. In addition, Dolly pointed out that Air Canada continued to hire new employees during this period, including four employees to fill vacant positions. He also pointed out that his manager who had input into the decision had worked with him at another airline and was worried Dolly would disclose the fact the other airline had fired the manager.
You make the call
Was Air Canada entitled to dismiss Dolly?
OR
Was Dolly unjustly dismissed?
If you said Air Canada was entitled to dismiss Dolly, you’re right. The adjudicator noted that it had been established that an employer can distribute a position’s duties to others if that allows the employer to eliminate a position and discontinue the function of that position. Such circumstances can lead to people being busy but results in a lack of work for the person whose duties were reassigned. In this case, Air Canada reduced the number of CSMS positions at the Vancouver airport and didn’t increase that number — the only hires were for existing positions. It was within Air Canada’s right to determine the number of CSMS positions it wanted to have at the Vancouver airport, said the adjudicator.
“I agree such a decision is best left to the employer and not one that the [Canada Labour Code] is meant to interfere with,” the adjudicator said.
The adjudicator also found that Air Canada didn’t have to tell Dolly what he had done to warrant being dismissed since he wasn’t being dismissed for cause. The airline informed all employees who had been cut that it was because of restructuring. Unfortunately, Dolly refused to accept this because he believed himself to be more capable and a better employee than some of those who remained. Although Dolly gave himself high ratings, managerial assessments were less enthusiastic and most of the employees who were kept had higher seniority. Either way, performance was only one factor in the decision to lay off Dolly, said the adjudicator.
As for Dolly’s claim of bad faith from the manager who had worked with him at another airline, the adjudicator found no evidence of bad faith — it was that manager who had hired Dolly in the first place and other managers supported the decision that Dolly be the one to be let go.
The adjudicator found that Air Canada acted in good faith in determining Dolly was the appropriate employee to be laid off in its restructuring and it “was properly a situation of a lack of work or discontinuance of a function.” The complaint was dismissed.
For more information, see:
• Dolly and Air Canada, Re, 2019 CarswellNat 1096 (Can. Lab. Code Adj.).
