Worker tried to transfer to another position after poor performance review; made harassment complaint against supervisor that was followed by dismissal
An Ontario company’s decision to dismiss an employee was based on the employee’s poor performance and not a reprisal for a harassment complaint made against one supervisor who wasn’t the sole decision-maker, the Ontario Labour Relations Board has ruled.
Francoise Taylor was hired in January 2013 by International Financial Data Services Canada (IFDS), a data transfer agency providing services to companies in the financial industry. She was a senior assistant manager responsible for data migration in the client onboarding process — converting new client data to the IFDS system. Her team was part of the information technology team and she had six full-time and six contract employees reporting to her, with another five employees reporting to her indirectly.
In January 2015, there was a change in the reporting structure and Taylor began reporting directly to the senior vice-president, advisory services (VP) — to whom she had reported indirectly to that point. The senior vice-president carried out semi-annual performance reviews which graded several performance metrics on a scale of one to five, leading to an overall mark out of five. Taylor’s final grades from 2013 to 2015 were 3.33, 3.69, and 3.4, respectively.
In early June 2016, Taylor was talking with the program manager of the new client onboarding team when the VP came out of his office looking upset. He then began to yell and scream at her about a report that actually was from the program manager, not her. Taylor was upset the VP would act like this in front of her team and sought out the director of human resources for advice on how to handle the situation. The director of HR said she had a choice — leave IFDS, seek a transfer within the company, or stay in her position. Taylor responded by saying she didn’t want to file a formal complaint or make a “major issue” of the incident, but decided she would look to transfer to another position within IFDS.
Taylor told the VP of her intention to seek alternate employment within the company on June 13, 2016. The VP said he would support a transfer and would speak to other managers about it. He indicated she should find something within three months, though Taylor felt he didn’t provide a timeframe. However, despite attempts to find an alternate position, she couldn’t find one compatible with her qualifications.
Taylor contacted and received support for the transfer attempt from the chief information office of IFDS — the VP’s direct superior —though she didn’t mention the issues with her relationship with the VP. At some point over the summer, the director of HR advised the VP that Taylor was unhappy with the way he treated her.
Mid-year review showed drop in performance
Taylor met with the VP on July 18 for her 2016 mid-term performance review. Her overall rating was 2.53, a significant drop from her previous grades. According to the VP, he went through the metrics with her, but Taylor claimed she wasn’t aware of the low performance rating until she was given the completed mid-year review three months later.
On Aug. 31, Taylor went to the VP’s office, where he was speaking with the program manager. According to Taylor, the VP was angrily yelling, swearing, and banging his computer keyboard in response to a report of an error in a test conversion for a client that he had to fix. Taylor was again concerned that members of the team heard the outburst, so she emailed the executive VP of HR about it and said she wished to file a formal complaint.
There was a new director of HR at this point, and she investigated Taylor’s complaint. She interviewed Taylor, the program manager, and another employee on Taylor’s team who had witnessed the incident. About one month after Taylor’s complaint, the director of HR was able to interview the VP, who admitted that he may have raised his voice in frustration and said a swear word. By mid-October, the director of HR concluded the investigation and determined there was no harassment.
A few weeks later, in the first week of November, IFDS reviewed the performance reviews of all information technology employees so it could identify the bottom performers and terminate their employment. Thirty employees were identified as bottom performers, including Taylor — whose mid-term rating had been downgraded to 2.43 after further review.
The chief information officer and the VP decided to terminate Taylor’s employment. On Jan. 9, 2017, the VP gave her a termination notice along with a package to support her search for new employment.
Taylor filed a complaint, claiming IFDS dismissed her as a reprisal for her harassment complaints against her supervisor, the VP. IFDS argued that Taylor was aware of the concern over her poor performance since her mid-term performance review, her harassment complaint came afterwards — she didn’t file a complaint after the first incident — and it had nothing to do with the termination decision.
The board agreed with IFDS that the first incident did not involve a formal harassment complaint and Taylor herself had told HR that she didn’t want to make a “major issue” out of it. Though the director of HR mentioned to the VP that Taylor had problems with the way she was treated, there was no formal investigation.
However, the second incident in August 2016 did lead to a formal complaint from Taylor and the director of HR conducted an investigation. Given that Taylor, the VP, and two other employees on the team were interviewed, this constituted an appropriate investigation as required by the Ontario Occupational Health and Safety Act (OHSA), said the board. Though there was a small delay — it took a month before the VP was interviewed — this wasn’t enough to believe the investigation wasn’t legitimate. In addition, the conclusion that the matter was closed and there was no harassment — the VP admitted he had acted improperly — was a reasonable one and not indicative of an inadequate investigation, said the board.
The board also found that the July performance review showed Taylor’s job performance had decreased from previous years and it detailed the areas where she needed to improve. Though Taylor claimed didn’t receive the final review until October, she had to have known how IFDS was perceiving her job performance from the July meeting, at which point most of the evaluation was done — well before the harassment complaint, the board said.
In addition, when Taylor indicated she wanted to transfer elsewhere in IFDS, it was reasonable for the VP to expect her to do it “sooner rather than later” and it was an opportunity to avoid losing her employment. The fact that she went to the chief information officer with her transfer attempt demonstrated that Taylor felt a sense of urgency and that her job may be on the line if she didn’t transfer, said the board.
The board also found that determination of who the bottom performers were and that they should be terminated was a collective management decision, most of whom were not aware of the harassment complaint. In addition, the final decision to terminate Taylor’s employment was made jointly by the VP and the chief information officer and the harassment complaint was not a factor.
“There is no evidence before me that, with the exception of (the VP) himself, any of the senior managerial participants in the calibration meeting were even aware of the harassment complaint which (Taylor) had made against him on Sept. 8, 2016, much less took it into account in their deliberations to terminate her. Nor did (the VP),” the board said in dismissing Taylor’s complaint.
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