This edition of You Make the Call features a bank employee who failed a test required for her new position.
The employee was hired in November 2009 as a customer service representative (CSR) in retail distribution at a Canadian Imperial Bank of Commerce (CIBC) branch in Fort St. James, B.C. She had several years of experience working at other banks.
In March 2012, the employee applied for an opening for a financial service representative (FSR), which involved opening bank accounts, negotiating loans, and selling credit cards, mutual funds and other investment products. She was hired after becoming one of two finalists for the position.
Before starting the new position, the employee signed a letter of employment acknowledging that she must within six months successfully complete a Canadian Investment Funds Canada (CIFC) course or a Canadian Securities Course, so she could be accredited by the B.C. Securities Exchange to sell mutual funds. The letter of employment added that if she didn’t achieve the accreditation within six months her employment would terminate with no further entitlement.
The CIFC course required a pass rate of at least 60 per cent. The employee took the course in December 2013 and January 2014, failing both attempts. On Feb. 4, 2013, the CIBC branch manager gave the employee a warning letter that she must pass the CIFC course by March 5 or else “your employment with CIBC will end with no requirement for additional notice or severance.” The letter also asked the employee to inform the branch manager if there were any additional issues that could impede her ability to get the accreditation.
The employee wrote the CIFC exam a third time on Feb. 27. She improved from her first two attempts, but still failed with a mark of 53 per cent. As she was improving and getting closer to passing with each attempt, she told the branch manager she wanted to write the exam a fourth time. The branch manager wished to consult with others for a few days, which the employee found to be stressful. She complained to the HR department about bullying and harassment, but the HR department advised her to be patient.
On March 6, the branch manager and the district manager met with the employee to tell her she was terminated because she failed the CIFC course. The employee returned her keys and name tag and left the branch.
The employee then filed an unjust dismissal complaint, arguing that since CIBC didn’t want to give her another chance, it set her up to fail by offering her the FSR position before she passed the required course and not giving her enough time to study. She also stated she didn’t want to return to work for CIBC as she felt bullied and treated unfairly.
You Make the Call
Should the employee have been given another chance?
OR
Did CIBC have just cause to dismiss the employee?
If you said CIBC had just cause to dismiss the employee, you’re correct. The adjudicator found there was no evidence CIBC set the employee up to fail. There was no reason for the branch manager to expect the employee wouldn’t be able to pass the CIFC exam, since she was a good employee and had passed other internal bank exams. The bank also allowed her three attempts to write it — covering the cost for all three — and gave her time to prepare when needed. There was no evidence the employee asked for more time off to study if she needed it. The course was supposed to be self-study and the branch manager asked to be informed of any issues that could impede the employee’s ability to pass the exam.
The adjudicator noted that the CIBC had a right to define the job duties and requirements of an FSR and the right to remove the employee if she wasn’t legally qualified. The adjudicator also noted that it would be unjust to promote an employee from a secure job to one leading to termination if a qualifying exam isn’t completed, but the employee chose to apply for the job and took the risk upon herself. The employment letter clearly stated that if the employee didn’t pass the course she would be terminated from CIBC.
The adjudicator found not offering the employee a CSR position — which she had done successfully for years — before terminating her employment would be unjust. However, the bank didn’t have the opportunity to do so, as the employee kept insisting she wanted to be an FSR. Rather than accepting the fact she couldn’t pass the required course, she wanted to keep taking it, resulting in a delay for the bank to properly fill the FSR position.
“In the end it was (the employee) who permanently severed the employment relationship by ruling out a return to work at CIBC,” said the adjudicator. “Having taken this attitude that she deserved to remain as a FSR2 until she passes the exam, refusing to apply for CSR work, and stating how she no longer respected CIBC; she gave the employer just cause to terminate her employment.” See Smith and Canadian Imperial Bank of Commerce, Re, 2014 CarswellNat 8860 (Can. Lab. Code Adj.).
