Other colleagues dismissed after dishonest sales conduct
An Ontario worker’s firing for dishonest misconduct was excessive when several other employees received lesser discipline for the same misconduct, an arbitrator has found.
Dipak Mistry was employed as a loyalty and retention agent for telecommunications company TELUS and was hired in 2002. His job entailed customer service as well as dealing with customers who were considering cancelling their account. He had discretion to provide customers with perks such as credits and improved features to entice them to stay.
Mistry worked from home and took about 35 calls per day. Managers monitored one to two calls per agent on a random basis for quality control and calls were recorded. Recordings were kept for 90 days.
In 2017, TELUS implemented a sales incentive program that offered a cash bonus to agents who generated additional sales. Agents were accountable for matching products and services to customer needs and they were warned that “any fraudulent sales activity” could lead to removal of credit for the sales, disqualification from the program, and “formal discipline up to and including termination.”
Shortly thereafter, TELUS introduced a feature called “Easy Roam” that allowed customers to use their data when travelling abroad for a flat daily fee. Customers had to accept the Easy Roam feature before it was added to their accounts — consistent with company policy that prohibited agents from making changes to accounts without the customer’s knowledge and consent. The Easy Roam feature became part of the sales incentive program.
In late 2018, TELUS discovered that Mistry and other agents had added an unusually high number of Easy Roam features to customer accounts. After listening to recorded calls where Easy Roam had been added, the company found that Mistry had added the feature without customer consent on five calls. Further review identified another 10 calls.
Mistry wasn’t forthcoming in an investigation interview, so the company reviewed all recorded calls over the previous 90 days. It found a significant number of calls where Easy Roam had been added without consent, including several where it had been added to accounts that were about to be cancelled.
When confronted with the evidence, Mistry acknowledged what he did but said that other agents had talked about doing it as well. He refused to provide any names.
TELUS terminated Mistry’s employment on March 13, 2019, for conduct that was “dishonest, completely unacceptable and, clearly, violated established business rules, procedures and policies.” Five other agents at the same office were terminated for the same misconduct, while 10 agents at other TELUS locations received discipline ranging from a written warning to a five-day suspension.
The union argued that termination was excessive when other employees, including ones with less seniority, weren’t fired for the same misconduct. It also pointed out that the incentive bonus Mistry would have earned from the add-ons would have only been in the hundreds of dollars.
The arbitrator noted that there could be distinguishing features in the cases of the employees who received lesser discipline. However, TELUS didn’t provide any evidence or try to show why they were different than Mistry, other than his role as a loyalty and retention agent was slightly higher than customer care agents. Although all the agents who committed the misconduct at Mistry’s location were fired, the collective agreement didn’t apply just to that location, said the arbitrator.
“It cannot be that at one location the employer treats the misconduct as causing an irreparable breach of trust while at the other locations it does not,” said the arbitrator. “The concept of comparable treatment for comparable misconduct should and does apply under the full scope of this collective agreement.”
The arbitrator determined that Mistry’s termination was discriminatory and excessive. TELUS was ordered to reinstate Mistry with a 10-day suspension and compensation for any lost pay.
Reference: TELUS and TWU. Kevin Burkett — arbitrator. John Craig for employer. John Hockley for employee. May 4, 2021. 2021 CarswellOnt 6673
