Canadian HR Reporter

CANADIAN HR REPORTER JANUARY 2020 EMPLOYMENT LAW 5 CIBC employee unjustly dismissed but still doesn't get job back Acrimonious work relationship with manager didn't warrant dismissal, but termination with compensation was reasonable solution: Federal Court BY JEFFREY R. SMITH THE CANADA Labour Code doesn't al- low unjust dismissal. When an employee is unjustly dismissed, that employee can usually expect to return to their job with compensation for any lost income. But, sometimes, things get so bad between the employee and the employer that re- instatement isn't a viable option — even if there wasn't just cause to fire the employee in the first place. George Kouridakis was hired by the Canadian Imperial Bank of Commerce (CIBC) in 2000. Over the course of a 16-year career with the bank, Kouridakis held differ- ent positions and received mul- tiple certificates of appreciation, bonuses and pay increases for do- ing a good job. However, CIBC had some is- sues with Kouridakis' conduct at work, including concerns over how he was spending his time, which led to the bank issuing him warning letters. On July 3, 2015, his manager found Kouridakis socializing with colleagues during work hours, so the following week she issued him a "final disciplinary warning letter" that outlined the bank's issues with his behaviour in the office and his time logs. e bank was also worried that Kouridakis was conducting personal business during work hours. Kouridakis disputed the legiti- macy of the final warning letter and said he was always doing work. CIBC followed up the final warning letter with a performance review that determined he "did not meet expectations." Tension built between Kouri- dakis and his manager, and things came to a head in April 2016. In a team meeting, Kouridakis said he disagreed with some of his man- ager's suggestions and would take it up with her manager. ey spoke about it a few days later and the talk became heated, leading to the manager bursting into tears and walking away. Kour- idakis followed her to apologize and touched her arm, resulting in his manager saying loudly: "Don't touch me." Afterwards, Kouridakis said he didn't feel well and he went on sick leave. In early May, Kouridakis met with CIBC's medical expert. e expert determined he was fit to participate in a meeting with CIBC's corporate security group after a meeting with his manager. Termination after argument ree weeks later, Kouridakis filed a bullying and harassment com- plaint against his manager, claim- ing that he was "reprimanded, yelled at, humiliated, made to feel inadequate, accused of tampering with corporate records and lying." He said this unhealthy work envi- ronment culminated in the April argument with his manager and aggravated anxiety issues that had begun a few months earlier. CIBC scheduled a meeting with Kouridakis on June 14. Kouridakis assumed it was about his return to work, but he was taken to corpo- rate security who asked him about the argument with his manager. ey also told him that his man- ager had complained that he had grabbed her twice and had pre- vented her from leaving her desk. e meeting ended with CIBC terminating his employment. Kouridakis emailed a CIBC executive with his bullying and harassment complaint against his manager, but soon after CIBC sent him a termination letter that didn't indicate a reason for dis- missal. Kouridakis then filed an unjust dismissal complaint under the Canada Labour Code. e following month, Labour Canada passed along the reasons for his termination that it obtained from CIBC, which were "violent and inappropriate behaviour to- wards [his] manager... as well as non-described past episodes of unprofessional and inappropriate behaviour in the workplace" for which he had received warnings. An arbitrator found that Kour- idakis' touching of his manager's arm wasn't workplace violence but that Kouridakis was deserving of workplace discipline because of his criticism of his manager. e arbitrator also found that Kouridakis' other instances of misconduct resulted in warnings but that CIBC "reluctantly toler- ated" them because of the "quality and value" of his work. e arbitrator noted that the July 3, 2015 incident wasn't misconduct as the manager had "made up her mind that Mr. Kouridakis had en- gaged in misconduct before even confronting him." In addition, the evidence showed the manager pro- voked Kouridakis at the April 2016 team meeting when he disagreed with her. However, Kouridakis' overall behaviour had a negative impact on the relationship be- tween them, said the arbitrator. e arbitrator found that Kour- idakis was unjustly dismissed but that reinstatement was "unten- able" and Kouridakis should be removed from the workplace for the sake of the work environment. As a result, Kouridakis should re- ceive severance compensation rather than be reinstated. Kouridakis appealed the deci- sion, arguing that he deserved reinstatement in addition to com- pensation for lost income from his unjust dismissal, as reinstatement was the normal remedy for unjust dismissal. If reinstatement to his regular position wasn't tenable, said Kouridakis, another position should be considered. Kouridakis also pointed out that his manager was the only one who testified against rein- statement and that wasn't enough for CIBC to prove reinstatement wasn't possible. Reinstatement not only solution e Federal Court noted that "the fact that reinstatement may have been determined to be the appro- priate remedy more often than not does not mean that it becomes the norm or somehow becomes the standard to be deviated from only in exceptional circumstances." Reinstatement was only one rem- edy that was possible and there was no requirement that it be the solution to every unjust dismissal case, said the court. e court also found that "the employment history between Mr. Kouridakis and CIBC had its ups and downs" and the arbitra- tor was open to decide on a rem- edy that made sense under the circumstances. e evidence presented in the case indicated that severance in- stead of reinstatement was a rea- sonable decision for the arbitrator to make, even without a number of employees testifying on the difficulty of the employment re- lationship or other proof of that reinstatement couldn't work. "Although only [the manager] spoke against the reinstatement of Mr. Kouridakis, it seems to me that as his superior, it would be [she] who would have to deal with the BOTH> pg. 10 Cancer Assistance Seniors' Care Assistance HealthCare Assist Your Wellness Partner CAREpath is the only Canadian Health Care navigation program of its kind offered in Canada. We have extensive experience in navigating Canadians through the health care system. Credit: BalkansCat (istock) e arbitrator found that Kouridakis was unjustly dismissed but that reinstatement was "untenable" and he should be removed from the workplace. Jeffrey Smith Legal View

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