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Issue link: https://digital.hrreporter.com/i/1387118
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