Canadian Employment Law Today

February 12, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo - copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Emplo y ment Law Today Canadian Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Poor performance is mind over matter THIS EDITION of You Make the Call features an employee with a past brain injury who failed to meet his employer's expectations. Paul Campbell was hired by the Canadian Imperial Bank of Commerce (CIBC) in Febru - ary 2001 to be a customer associate. Fourteen years earlier, Campbell had suffered a traumatic brain injury in a car accident that affected the way he learned things. He was able to recover, go to university and join the workforce, to the point where he didn't request accommodation because he didn't think he had a disability. Some time later, CIBC changed his job title to personal banking representative (PBR), but his duties remained the same — serving clients with product solutions and advice. His evalua - tions were generally satisfactory, with his sales scores better than his call quality scores. In 2009, Campbell's evaluation scores dipped as he usually refused to use the agent support tool (AST) that set out the steps to validate the identity of clients on the phone. He also often used unprofessional language with clients and failed to properly validate their identities. This led to a warning for unprofessional service. On May 21, 2010, Campbell received a dis - ciplinary letter for unprofessional language on a call and providing a client with his personal email address. He initially didn't see a problem as it was a fake email, but he later acknowledged that he had "made a mistake with that one." However, Campbell gave his email address out again in January 2012 during a call with a client in which he discussed several personal topics. He said it probably wasn't appropriate, but he didn't have "bad intentions" and was try - ing to make a sale. CIBC became concerned that Campbell's head injury-related issues were worsening. Campbell agreed to undergo a neuropsycho - logical assessment in April 2012, which de- termined he had some impairment "in his attention and concentration, regulation of impulsivity, memory and speech." The assess- ment report indicated he was better at tasks that were more verbal instead of "hands-on" tasks. The report recommended occupational therapy and psychological support along with routine interventions to help with his memory. CIBC followed the report's recommenda - tions and provided Campbell with a headset covering both ears to help with concentration, regular feedback on his calls, repetition of pro- cedures and the removal of sales from his calls. Campbell's performance improved at first, but it fell off again when sales were integrated into his calls. An assessment in November 2012 found Campbell had returned to engaging in inappropriate conversations with clients while also disturbing colleagues with questions in - stead of finding them in the AST. CIBC lowered his sales targets as a form of accommodation. Over the next few months, Campbell re- ceived warnings for spending too much time on non-work-related conversations with custom- ers and using his cellphone at his desk. CIBC continued to provide coaching and feedback. On Oct. 1, 2013, Campbell made a comment to a client that led to a complaint. CIBC had been increasingly concerned about the reputa - tional and legal risk his comments created and was receiving feedback from other employees who had to take his "escalated calls." When asked about his comment, Campbell said it was a joke but he didn't consider it to be funny. After another assessment, management told him it wasn't working out and they wanted to help him find other work with CIBC. On Jan. 15, 2014, CIBC terminated Campbell's employ - ment effective Feb. 12 so he could use the four weeks to look for another job. CIBC provided him with 36 weeks' pay in lieu of notice, exter- nal outplacement support for up to two months and a training allowance. Emplo y ment Law Today Canadian YOU MAKE THE CALL Was the termination legitimate? OR Was the termination discriminatory? IF YOU SAID the termination was legitimate, you're right. The tribunal found that while the neuropsychological assessment mentioned that Campbell had some impairment to regulating his impulsivity, there was no medical evidence presented that directly linked his disability to "non-wilful spontaneous comments" or any in - ability to learn new things. In addition, Camp- bell usually felt that his conversations with cli- ents helped him sell products, so he didn't regret them. He usually improved his behaviour after being warned, before reverting "to his perferred way of doing business in order to build rapport with customers," said the tribunal. The tribunal noted that CIBC provided coaching and reminders of CIBC's policies and procedures along with warnings when his con - duct on calls became unprofessional. It also "worked diligently to ensure the accommoda- tion plan was implemented as recommended" by Campbell's doctors. However, despite the accommodations, Campbell continue to show the same problematic behaviours that he had throughout his employment, the tribunal said. With no evidence that Campbell's disability prevented him from being able to comply with CIBC's accommodation plan or coaching, the tribunal found CIBC terminated his employ - ment "for legitimate business reasons follow- ing misconduct and poor performance that had been recurring throughout his employment." For more information, see: • Paul Campbell v. Canadian Imperial Bank of Commerce, 2019 CHRT 13 (Can. Human Rights Trib.).

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