The complainant had been corrected for several shortcomings over the years and was not a star performer. But management’s response had been mild and inconsistent. Dredging up a whole career’s issues and proposing them as cause for termination did not impress the adjudicator.
Claiming she was wrongfully dismissed, a bank teller lodged a complaint with Human Resources and Skills Development Canada. The worker sought compensation and reinstatement under the Canada Labour Code.
A.S. was hired to work as a Customer Service Representative (teller) by a chartered bank in 1987.
Her accumulated performance reviews indicated that she was an adequate performer: below star quality but far from being a marginal employee or presenting disciplinary challenges.
In 2004, she was cautioned about spending too much time serving clients. A.S. received a similar caution in 2007 when she also failed to meet certain performance targets.
In 2008, A.S. made a number of administrative and processing errors, one of which resulted in a loss of $5,000. She was again cautioned about the amount of time she spent with clients. The same issue came up again the next year. A.S. was also verbally disciplined for mishandling cash.
In April 2009, A.S. sought a meeting with the Area Manager. A.S. complained about her treatment at the hands of her immediate supervisor. She referenced the corporate Anti-Harassment policy. She heard nothing back.
Cause not alleged
In October 2009, A.S. was fired. The letter of termination referenced a decision to “relieve” her from her current role because of her inability to meet the performance requirements of her position. The bank continued to pay her salary for 68 weeks after her termination.
A.S. filed a complaint claiming unjust dismissal.
Before the Adjudicator, the employer said it was not claiming that it had cause to terminate A.S. The key issues, according to the employer, were whether or not the Adjudicator had the jurisdiction to reinstate A.S. either at her original workplace or at a different location and, whether or not A.S. was owed any more compensation over and above what she had already been paid.
The Adjudicator said the employer’s attempt to frame the issues in this manner was “problematical and demonstrative of nothing less than an abdication by management of its duty to manage its business.”
The Adjudicator said that it appeared that the employer was seeking to shed an employee that it was either unwilling or unable to improve or discipline.
“If an employer can come before a Tribunal such as I am in this case and frame the issue in this way the door will be open for any employer under federal jurisdiction knowingly to seek to by-pass any number of human rights and other protections in exchange for money,” the Adjudicator said.
Arguing against reinstatement, the employer said that to place A.S. in another location would necessitate displacing another employee. Reinstating A.S. to her former location, on the other hand, would also be untenable because of tensions between A.S. and her supervisor.
The Adjudicator called these arguments a “disgrace” and pronounced them unworthy of a company named as one of Canada’s top 100 employers.
The Adjudicator was unwilling to consider the merits of a just cause case against A.S. if the employer was unwilling to allege it. “If [the employer] does not know whether [A.S.] deserves to be dismissed I cannot enlighten them.”
“Packet discipline”
The Adjudicator acknowledged that by 2009, A.S.’s performance was in need of attention in the form of either training or discipline. “However, none was forthcoming before what was effectively a ‘packet deal’ whereby her previous errors and misconducts for which little or no discipline had been imposed were bundled up in the capital punishment of termination.”
This kind of “packet discipline” was not tolerable, the Adjudicator said, “The dismissal was unjust.”
In this case, he said, reinstatement was appropriate.
“Parliament has provided employees covered by the Canada Labour Code with an entitlement which exceeds the usual common law remedies in the case of unjust dismissal. Without the remedy of reinstatement, employees can be dismissed without cause provided only that their employer provides reasonable notice of its intention to do so or pay in lieu thereof.”
However, the Adjudicator said, the common law regime “may result in substantial injustice where, as in this case, the employee may have a substantial investment in training and might find it difficult or impossible to find an equivalent position.”
There were other options for A.S., the Adjudicator said. “I conclude that Parliament intended Adjudicators to utilize the remedy [of restoring an employee’s position] unless it was inappropriate to do so.”
A.S. was a 22-year veteran of customer service with a satisfactory record. “[The employer] is a very large organization which ought to have an effective human resources planning capacity well able to absorb into meaningful full-time employment a person whose job is, effectively, at the bottom of the corporate pyramid in the first place,” the Adjudicator said.
A.S. was ordered reinstated at a new location. A.S. was also awarded benefits retroactive to her termination with the appropriate offsets.
