Firing of worker playing blame game endorsed by Ontario arbitrator

An Ontario arbitrator has upheld the termination of a worker who refused to accept that he had performance issues despite several warnings and attempts to coach him.

Walied Khogali was a liaison coordinator with Labour Community Services of Metropolitan Toronto (LCS), a labour organization that provided assistance to programs undertaken by the Toronto and York Region Labour Council including fundraising from trade unions.

Hired in July 2016, Khogali acted as a liaison between the Labour Council and the United Way of the Toronto-York Region. However, the executive director of LCS soon became aware of problems with Khogali’s performance. He didn’t follow his work schedule — United Way often called to ask where he was and the executive director didn’t know, causing embarrassment to LCS. He delivered reports late, didn’t follow instructions from management, had problems organizing events, and sometimes went missing. The executive director tried to train and mentor Khogali but he wasn’t receptive to it and he usually blamed others for any problems.

The executive director held a performance evaluation meeting in April 2017 outlining areas in which Khogali needed to improve. Thirteen months later, in May 2018, LCS issued a warning letter about his “lack of focus and productivity” that stated his performance would be re-evaluated in three months when he returned from a leave of absence he was taking to run in the Toronto City Council election.

LCS endorsed Khogali’s candidacy, but when the Ontario government reduced the number of city wards, he ended up running against another labour-friendly candidate. LCS thew its support behind the other candidate and Khogali agreed she was the better option.

LCS issued a second warning letter in July 2019 about his shortcomings that was “very serious” and stated that he would be re-evaluated in September. However, Khogali refused to admit to any performance problems and responded by alleging LCS was trying to constructively dismiss him through intimidation and a hostile work environment.

LCS didn’t see any change in Khogali’s attitude and performance, so it issued a third warning letter on Oct. 1, 2019. The executive director informed the Labour Council board of directors about Khogali’s work performance and they decided to terminate his employment on Nov. 19.

Khogali filed a grievance claiming the warning letters he had received were retaliation for his running in the city council election — he said LCS hadn’t raised any performance issues prior to his candidacy — and that the executive director constantly harassed him after he returned to work. He also said he did his best to learn when any concerns were raised and he denied refusing training offered by the executive director.

The arbitrator found LCS had clear records of the performance evaluation meetings and warning letters, while Khogali’s version of events was inconsistent. The evidence indicated that “this is not a case of an incompetent employee failing to meet expected standards despite best efforts. Rather [Khogali] simply refused to follow instructions,” said the arbitrator.

The arbitrator noted that the collective agreement had a sunset clause of 12 months, so LCS couldn’t rely on the 2017 and 2018 letters as part of its dismissal decision. However, they could be used to establish that Khogali had been notified that he needed to improve his performance — including before his election leave — and his ongoing resistance.

The arbitrator also found that LCS made multiple attempts to get Khogali to improve his performance before terminating his employment. However, Khogali “defiantly refused to change his work attitude despite continuous efforts by [the executive director] to assist with coaching, advice and warnings.”

The arbitrator determined that Khogali continued to insist he had done nothing wrong “in the face of overwhelming evidence to the contrary” and didn’t give any indication he would act differently if returned to his position. As a result, termination was appropriate.