Complainant wanted dismissal overturned because the employer did not factor in her personal circumstance
A recent Nova Scotia employment law case upholding the dismissal of an employee who made inappropriate and offensive remarks on a customer call helps employers set more explicit expectations from a code of conduct or employment agreement, say the Stewart McKelvey lawyers acted on behalf of CIBC.
Lawyers Grant Mitchum and Dante Manna wrote in a blog that employers need to be aware of how an employee’s domestic life and personal relationships can cause stress to creep into the workplace.
In Crawford v Canadian Imperial Bank of Commerce, the complainant asked the adjudicator to overturn the firing because her employer did not deal with her properly, mostly as she was under stress.
The adjudicator dismissed her complaint, finding that CIBC had just cause for dismissal. It had “acted properly at all relevant times,” and neither CIBC’s conduct nor the complainant’s stress were found to be mitigating factors for the complainant’s misconduct. The adjudicator largely disregarded the physician’s report, finding that it “prejudiced the matter at issue.”
The complainant had been a team leader at CIBC’s client Contact Centre in Halifax, overseeing a team of 12 financial services representatives. She was dismissed for cause following a 21-minute telephone call with a customer asking for a refund. Throughout the call she made numerous inappropriate and offensive remarks that were overheard by her team members and other team leaders.
During the call, the complainant made disparaging comments directly to the caller and put the customer on hold. They included statements such as “nobody gives me money when I’m broke….this guy better get off my line” and “I just think some people feel entitled.” She ended the call by calling the client a “f…ing idiot.”
The complainant acknowledged that the call was disrespectful and inappropriate. Still, she nonetheless sought to excuse her behaviour on the call due to compounding stress from personal circumstances outside of work.
As well, she alleged that CIBC had failed to treat her fairly in workplace investigations involving her ex-spouse, a co-worker in the contact centre, and failed to adequately accommodate a return to work following a five-month short-term disability leave.
The complainant’s managers testified that the offending call was one of the worst they had ever heard at the contact centre, and lasted 21 minutes, so it could not be considered a momentary lapse of judgement. The complainant had also been disciplined for prior breaches of conduct, the last incident occurring four months before her termination. It specifically warned that any further violations of the code of conduct would result in termination.
The complainant argued that her behaviour resulted from “terrible stress” she suffered because of her relationship with her ex-spouse, who also worked at the contact centre.
However, the adjudicator found insufficient evidence to support the connection between the stress and her behaviour on the call. He also largely disregarded the medical evidence that the complainant sought to introduce. In particular, the physician’s report was found inadmissible, based on the physician’s admission that “the report was not connected to CIBC’s dismissal of the complainant.”
Although he did consider the physician’s report stating that the complainant was under stress at the time of the call, he found there was no “reasonable connection so as to mitigate the complainant’s behaviour on the telephone call.”
Employment lawyer Stuart Rudner, author of You're Fired! Just Cause for Dismissal in Canada, says in assessing whether there is just cause for dismissal, the misconduct in question is not the only thing to be considered. “A contextual approach is required in which all relevant factors are considered.
“That includes factors such as the employee's length of service, any prior disciplinary history, the nature of the employee's position and degree of trust required, the employee's response to the misconduct, and any mitigating factors. Ultimately, it is up to the employer to demonstrate that the employment relationship has been irreparably harmed.
“Even where there are mitigating factors,” Rudner says, “such as the abuse that the complainant had suffered in this case and honesty in admitting misconduct, summary dismissal can be upheld where it is appropriate.”
As for the CIBC’s treatment of the complainant, the adjudicator found that CIBC had completed a “fulsome” investigation of the complainant’s harassment complaint against the ex-spouse. As well, CIBC had taken “all reasonable steps” to accommodate the complainant’s return to work, including fulfilling the complainant’s recommendations for her accommodation.
For instance, they listened to her requests, and implemented shift changes and changed her work locations within the workplace to minimize contact between the complainant and her ex-spouse. CIBC also agreed to her request when she wanted to be put back on the same shift as her ex-spouse.
CIBC did not transfer the complainant to another call centre. The adjudicator agreed the transfer was inadvisable because of the discipline investigation.
CIBC also maintained extensive records of performance evaluations and conversations with the complainant that they relied upon to show that the claimant's statements during her performance evaluations and throughout the workplace investigation into her ex-husband were entirely at odds with what she alleged in the complaint.
For example, during her performance evaluations, the complainant indicated that she was very satisfied with her CIBC managers’ support and leadership and was in a good place with her job and personal life. This assessment is at odds with her allegations that CIBC had not investigated her complaint or accommodated her needs sufficiently.
Stewart McKelvey lawyer Dante Manna and Grant Mitchum said in their blog post that the takeaways from this case are that employers need to set clear expectations of conduct in the employment agreement and detail the consequences of breaching that conduct. As for maintaining a basis to evaluate a case for just cause, “maintaining thorough, contemporaneous records can provide a clear picture of the employer’s handing of investigations and discipline, despite allegations to the contrary made after the fact.”
They added that “there is little an employer can do to intervene in relationships between employees that are entered into consensually outside of work. “Accusations of domestic violence outside of work must be taken seriously, and any allegations of workplace harassment and violence duly investigated.
“The employer can consider the feasibility of any temporary arrangements proposed by the accuser to separate that employee from the accused in the workplace.”
Rudner says that in this case, the adjudicator found that CIBC had met its duties to investigate the complainant's allegations of harassment and respond to her requests for accommodation.
“While there is not necessarily a legal obligation to address off-duty stressors, there is a duty to investigate work-related harassment and also to accommodate needs such as those in this case.”
