Long service, good performance make firing excessive
A British Columbia worker who was fired for repeated tardiness and who seemed uninterested in improving has been given another, albeit tenuous, chance by an arbitrator.
The 52-year-old worker was hired in 1990 by BC Tel, a telecommunications company in B.C., which later became Telus Communications. She was a client care representative, taking telephone calls from clients. While working, she could set her status to either “ready” to take the next call or “not available” due to paperwork or a break.
The Telus code of conduct stated that failing to comply with scheduled start and end times and scheduled breaks was unacceptable behaviour, as was failing to report absences and tardiness.
In April 2015, the worker was given a written warning for extending her breaks on eight occasions. A second written warning came in 2016 after she started work late three times, followed by a one-day suspension in 2017 for five occasions of logging in late, five instances of improper coding, and another three occasions of doing both.
In February 2018, Telus suspended the worker for three days for several instances of tardiness and misuse of the “not available” status. The company warned it was unacceptable and “will not be tolerated going forward.”
However, seven months later, the worker was suspended for five days after six more occurrences of tardiness and another eight occasions of extended breaks. Telus told her that her misconduct was impacting customers, putting an “unfair burden” on her coworkers, and further incidents would lead to discipline up to and including termination.
The worker was late five more times in the next five weeks, leading to an investigative meeting. The worker blamed traffic for some of her tardiness and admitted that “I’m just terrible” with managing her time. She mentioned that she suffered from depression that may have affected her sleep — though she didn’t provide any medical information — and accepted an accommodation of 9:30 a.m. shifts for three months. However, her tardiness continued.
On Jan. 30, 2018, the worker was 17 minutes late for a 10:30 a.m. shift. The worker blamed it on traffic and said she never left earlier because she thought she would be on time. She also said she didn’t think her tardiness affected her coworkers “very much” and she “guessed” it affected customers if they were busy.
Telus terminated her employment. The union argued that the worker’s tardiness wasn’t culpable due to her depression and termination was excessive discipline.
The arbitrator noted that Telus relied on its call centre employees to “sustain productivity levels and customer service in a highly competitive business, in a high demand area.” If the worker felt her depression was causing her tardiness, she didn’t use the employee assistance plan or seek medical advice after her suspensions and she frequently blamed it on other factors.
“In these circumstances where no medical information was provided to the employer, I cannot find that the [worker’s] remarks about her depression were sufficient to put the employer on notice that they should make further inquiries,” said the arbitrator. “The major thrust of the [worker’s] reasons for her tardiness was almost always traffic, or her inability to keep on time.”
The arbitrator found that the worker had control over things such as setting an alarm clock or not allowing time for traffic. In addition, she sought to minimize the effects of her tardiness. Her misconduct was culpable and worthy of discipline, said the arbitrator.
However, the arbitrator agreed that termination was excessive. The worker’s 29 years of service and good performance record outside of her tardiness, along with her age and the uncertainty of the job market were mitigating factors. Telus was ordered to reinstate the worker, but on a six-month probationary period with no compensation for lost wages.
Reference: Telus Communications and Telecommunication Workers Union, USW, Local 1944. Karen Nordlinger — arbitrator. Alex Mitchell for employer. Tamara Marshall for union. June 29, 2020. 2020 CarswellNat 2707
