Canadian Labour Reporter

June 28, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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Mistry worked from home and took about 35 calls per day. Man- agers monitored one to two calls per agent on a random basis for quality control and calls were re- corded. Recordings were kept for 90 days. In 2017, TELUS implemented a sales incentive program that offered a cash bonus to agents who generated additional sales. Agents were accountable for matching products and services to customer needs and they were warned that "any fraudulent sales activity" could lead to removal of credit for the sales, disqualifica- tion from the program, and "for- mal discipline up to and including termination." Shortly thereafter, TELUS in- troduced a feature called "Easy Roam" that allowed customers to use their data when travel- ling abroad for a flat daily fee. Customers had to accept the Easy Roam feature before it was added to their accounts — con- sistent with company policy that prohibited agents from making changes to accounts without the customer's knowledge and con- sent. The Easy Roam feature be- came part of the sales incentive program. In late 2018, TELUS discovered that Mistry and other agents had added an unusually high number of Easy Roam features to cus- tomer accounts. After listening to recorded calls where Easy Roam had been added, the company found that Mistry had added the feature without customer con- sent on five calls. Further review identified another 10 calls. Mistry wasn't forthcoming in an investigation interview, so the company reviewed all recorded calls over the previous 90 days. It found a significant number of calls where Easy Roam had been added without consent, including several where it had been added to accounts that were about to be cancelled. When confronted with the evidence, Mistry acknowledged what he did but said that other agents had talked about doing it as well. He refused to provide any names. TELUS terminated Mistry's employment on March 13, 2019, for conduct that was "dishon- est, completely unacceptable and, clearly, violated established business rules, procedures and policies." Five other agents at the same office were terminated for the same misconduct, while 10 agents at other TELUS locations received discipline ranging from a written warning to a five-day suspension. The union argued that termi- nation was excessive when other employees, including ones with less seniority, weren't fired for the same misconduct. It also pointed out that the incentive bonus Mis- try would have earned from the add-ons would have only been in the hundreds of dollars. The arbitrator noted that there could be distinguishing features in the cases of the em- ployees who received lesser dis- cipline. However, TELUS didn't provide any evidence or try to show why they were different than Mistry, other than his role as a loyalty and retention agent was slightly higher than cus- tomer care agents. Although all the agents who committed the misconduct at Mistry's location were fired, the collective agree- ment didn't apply just to that lo- cation, said the arbitrator. "It cannot be that at one lo- cation the employer treats the misconduct as causing an irrep- arable breach of trust while at the other locations it does not," said the arbitrator. "The concept of comparable treatment for comparable misconduct should and does apply under the full scope of this collective agree- ment." The arbitrator determined that Mistry's termination was discriminatory and excessive. TELUS was ordered to reinstate Mistry with a 10-day suspension and compensation for any lost pay. Reference: TELUS and TWU. Kevin Burkett — arbitrator. John Craig for employer. John Hockley for employee. May 4, 2021. 2021 CarswellOnt 6673 walkie was almost upon him, the plant manager stepped aside to avoid being hit. Senior continued by, picked up a new pallet, and started back down the aisle. The plant man- ager told him to stop and said that he didn't honk, to which Se- nior replied, "What the f--- are you talking about?" and contin- ued driving. The plant manager followed until Senior stopped and approached him. The plant manager said that Senior hadn't honked and almost hit him. Se- nior asked what proof or witness- es there were and said, "It is your word against mine." They continued to argue until Senior said, "If I wanted to run you over, I would have, I would not miss." The plant manager asked if that was a threat and ad- vised him to be more cautious. The plant manager reported the incident to HR. Senior told HR that he honked his horn and saw the plant manager the whole time. He said that the plant man- ager was upset at him. Another employee reported that during their conversation he saw that the pallet had been dropped to the floor and the forks of the walkie removed. The company suspended Se- nior for one day for acting "in a generally unsafe manner" and insubordination. The union grieved, arguing that there was no evidence Senior violated a company policy and the com- pany didn't fully investigate. It also claimed that in the alterna- tive, the discipline was too se- vere for someone with 15 years of service and a clear disciplin- ary record. Senior acknowledged that he didn't honk his horn on his way back up the aisle but had done so about 20 times in the previous few minutes. He also admitted that he hadn't acknowledged the plant manager until he chased after him. The arbitrator found that the plant manager was busy getting the plant ready for a visit from the president, so it was unlikely he would take the time to make a false allegation of misconduct. In addition, it was probable that Se- nior didn't stop as he passed the plant manager, since he admitted to not acknowledging him, said the arbitrator. The arbitrator also found that the other employee's observation that the pallet had been dropped and the walkie's fork removed meant that it was likely that Se- nior didn't stop until he had dropped off the pallet. However, it was unlikely that he swore or said, "It's your word against mine," since it would have been out of proportion to the manager's com- ment about the horn, said the ar- bitrator. The arbitrator determined that Senior's misconduct war- ranted progressive discipline under the collective agreement, but there was no evidence of pre- vious discipline or coaching. As a result, Multy Home was ordered to rescind the suspension and substitute a written warning in its place. Reference: Multy Home and LIUNA, Local 183. Diane Gee — arbitrator. Michael Horvat for employer. Amanda Laird for employee. May 7, 2021. 2021 CarswellOnt 6716 Actions warranted punishment with progressive discipline Other colleagues dismissed after dishonest sales conduct < Reinstatement pg. 1

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