Canadian Employment Law Today - sample

Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends 6 | November 7, 2018 Technical skills met or exceeded expectations « from SUDDEN CHANGE on page 1 A few months into her tenure, Amer's sales numbers weren't what Shaw wanted, so she was put on a performance improve- ment plan in May 2009. She met expecta- tions and was removed from the program the following year. However, after a few months it became apparent that Amer was still missing Shaw's targets for sales, e-billing mentions to customers, upgrade offers, and confirm- ing email addresses during her calls. Her supervisor felt if Amer did everything she was coached to do, she would meet her tar- gets. Since Amer wasn't meeting them, the supervisor believed she was deliberately not following instructions. Shaw performed biannual performance reviews, and Amer's February 2011 review rated her as meeting or exceeding expecta- tions in all metrics. In a July 2011 review, she received similar ratings. New role providing technical help In June 2012, Amer was promoted to the position of technical service representative (TSR), which involved helping customers with technical issues with their Shaw ser- vice. She received an overall positive per- formance review in September, with the ex- ception of a "below expectations" rating for "attendance/punctuality/dependability." Amer had missed more time than normal, she said she only took sick time when she was actually sick. Later in the year, Amer was coached over the number of times she had pressed a button redirecting calls because she wasn't ready. She received a "meeting ex- pectations" overall rating in March 2013, but was told she had to promote a particu- lar program in at least 80 per cent of her calls and meet the monthly sales target for TSRs. In February and March 2013, there were two incidents in which Amer had added video on demand to her own account with- out officially requesting the change to the staff accounts service — required by com- pany policy — and added an additional re- ceiver to a co-worker's account that caused that co-worker to exceed the limit of receiv- ers for staff accounts. Amer said she hadn't been aware she wasn't allowed to add video on demand, as it was a bill-per-use service so she hadn't intended to cheat Shaw out of revenue. She also said she had believed another department would remove a re- ceiver that was broken from the co-work- er's account so the receiver she had added wouldn't put the co-worker over the limit. Her supervisor wasn't satisfied with Amer's explanations — Amer still hadn't been au- thorized to make the changes — but no fur- ther disciplinary steps were taken. Over the next year, Amer said she found it challenging to position the sales, e-billing, and upgrade opportunities in the calls she received as a TSR, as the calls were from customers needing help with technical issues who were often already upset. By August 2014, her performance review in- dicated she met expectations overall, but her sales skills and attendance/punctuality were rated below expectations. By February 2015, Amer still wasn't meeting her sales targets, so her supervisor wrote in her performance review that she needed "to step up here, as this impacts our bottom line directly." Management had the view that Amer had "a deep understanding of our products and services" but was "re- luctant to share it unless asked." On Oct. 1, 2015, the supervisor told Amer that she was expected to increase her performance based on certain sales targets. If these targets weren't met, Shaw would pursue "disciplinary action up to and including termination." e supervisor wrote to Amer in a Dec. 10 email indicating she hadn't met any of her targets for sales, upgrades, or e-billing for the previous month, but didn't reiterate the warning of possible disciplinary action. He encouraged her to keep trying to im- prove her "stats." Amer continued to fall short of her tar- gets into 2016, and her supervisor occa- sionally monitored calls and coached her. A performance review in February stated that if she didn't meet certain targets by March 31, "we will take further disciplin- ary action up to and including termination of your employment." Amer acknowledged the warning and the targets, but claimed she was making the effort despite not get- ting the results. Amer received a new supervisor shortly thereafter, and on March 3, he gave her a memo titled "Final Notice Re Performance – Expectations." It reiterated the targets set in the recent performance review, the March 31 deadline, and stated if she didn't show immediate improvement by then, her employment would be terminated. Amer was "surprised and upset" by the memo, which she felt came quickly after the first warning. She said she tried to offer up- grades, but it was difficult if the customer had technical difficulties — usually the rea- son for the calls she received as a TSR. Her supervisor reviewed 14 of Amer's calls and found she didn't consistently dis- cuss e-billing, failed to confirm the email address in 12 of them, and didn't document four of them at all. Shaw decided to termi- nate Amer's employment effective April 17, 2016, for "your continued inability to meet the core expectations of your role despite verbal and written warnings." Consistently met technical expectations e adjudicator found that Amer's perfor- mance reviews indicated she consistently met the expectations of the technical re- quirements of the TSR position — she was able to help customers with their technical issues or direct them to the right person who could, which were the core duties ac- cording to the job description. Shaw's main concern was with her ability to meet sales targets assigned to the role — which weren't core expectations of the position. e adjudicator also found that the 14 calls the supervisor monitored were a small sample size — Amer handled an average of 28 calls per day and more than 600 per month — and weren't enough to be repre- sentative of Amer's work. As a result, Am- er's performance in March 2016 wasn't a culminating incident warranting dismissal, said the adjudicator. e adjudicator noted that Amer had been supported and encouraged to improve through 2015, and her first warning of po- tential discipline came in October 2015, fol- lowed by the final warning in March 2016 — and some coaching with no warning in-between. At no time were any concerns made about her technical skills in the TSR role, just her failure to meet sales targets. Since Amer was given a new supervisor who quickly gave her a final warning, it was likely the new supervisor had been tasked with terminating Amer's employment, which was why he only audited a small sam- ple of her calls and didn't coach her, said the adjudicator. e adjudicator found Amer had been "lulled into a false sense of security in her job as a TSR" by the "fairly constant and laudable support" given to her by previous supervisors, including performance re- views saying she was meeting expectations overall. In addition, the evidence showed Amer had received an annual salary in- crease every year. e adjudicator also found Amer felt she had been putting in the effort and be- haviours to improve and Shaw presented no evidence to the contrary, particularly in the small sample of calls that were audited. In addition, the 2013 incidents relating to unauthorized changes to staff accounts ap- peared to be unintentional, as Amer was unfamiliar with the policies. ere were no other similar incidents and she wasn't for- mally disciplined, said the adjudicator. e adjudicator determined that Amer was unjustly dismissed. Amer didn't seek reinstatement, so Shaw was ordered to compensate her for loss of salary, benefits, and interest from her termination date to the date she began a new job. See Amer and Shaw Communications Inc., Re, 2018 Car- swellNat 5495 (Can. Lab. Code Adj.).

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