Canadian Employment Law Today

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Gst #897176350 Published biweekly 22 times a year Subscription rate: $299 per year Customer serViCe Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com thomson reuters Canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen lorimer Publisher: John hobel Managing Editor: todd humber Editor: Jeffrey r. smith E-mail: Jeffrey.r.smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com how would you handle this case? read the facts and see if the judge agrees YOU maKE THE call 8 dismissal dispute: poor performance or reprisal? THis EdiTion of You Make the Call in- volves a dispute over whether a dismissal was for incompetence or disciplinary rea- sons. Kouassi Agbodoh-Falschau was a senior internal auditor at the Canadian Nuclear Safety Commission (CNSC). Hired in Oc- tober 2009, he received good performance evaluations until the end of January 2010, at which point he began working under a new supervisor. e new supervisor wasn't happy with Agbodoh-Falschau's work and met with him to discuss his performance in an informal performance appraisal on Nov. 15, 2010. Another meeting was held in May 2011, in which the supervisor outlined areas in which Agbodoh-Falschau needed to improve. On Aug. 4, 2011, the supervisor wrote a letter to Agbodoh-Falschau reiterating ar- eas in which Agbodoh-Falschau needed to improve his performance. However, Agbodoh-Falschau disagreed with the criti- cisms as he felt they were subjective com- ments on the part of the supervisor and not related to objective criteria on whether he was doing his job. He felt CNSC wasn't following its own performance appraisal policy, which was supposed to be based on "clearly established and easily measurable work objectives." Agbodoh-Falschau felt he was meeting these objectives. He fi led two grievances in December 2011 challenging his performance appraisals and claiming CNSC was harassing him. e grievances went to mediation but were not resolved. A couple of months later, the supervisor drew up an action plan designed to improve Agbodoh-Falschau's performance. Six weeks later, on Nov. 21, the supervisor still wasn't pleased with how Agbodoh-Falschau was doing, so he sent him another letter stating that if he didn't meet the require- ments of his position, he could be demoted or dismissed. Agbodoh-Falschau testifi ed CNSC didn't follow up on the action plan and neglected to give him regular feedback on his prog- ress. He submitted weekly reports but re- ceived no response to them. By June 2012, Agbodoh-Falschau had made some progress but his level of work still didn't satisfy the supervisor's evalua- tion of the job requirements. e supervisor met with Agbodoh-Falschau and shared his appraisal, following up with a letter in July indicating he was not satisfi ed with the job Agbodoh-Falschau was doing. e letter concluded with a warning that if Agbodoh- Falschau didn't meet expectations by Sept. 30, he would be demoted or fi red. Agbodoh-Falschau still didn't meet the supervisor's expectations by the deadline, so on Oct. 4, he was dismissed for incom- petence. Agbodoh-Falschau claimed the dismissal was unjust and was a reprisal for the griev- ances he fi led. He said CNSC began isolat- ing him in 2011, didn't give him clear expec- tations for his performance objectives and set him up for dismissal, which was bad faith on CNSC's part. You maKe the Call Was the dismissal for poor performance? OR Was the dismissal a reprisal? iF you sAid the dismissal was for poor performance, you're right. e adjudicator referred to previous case law that identifi ed disguised discipline as an employer engaging in "camofl age, shame or ruse to make a ter- mination appear to be something it was not." In this case, the adjudicator could see nothing that showed an attempt by CNSC to hide a disciplinary measure or deceive anyone. Regardless of whether Agbodoh- Falschau was actually incompetent, as he disputed, the adjudicator found CNSC was "of the opinion that he was incompetent" and terminated his employment for that reason. "In general, the case law indicates that an employer's intention is central to deter- mining whether a disciplinary measure is at issue," said the adjudicator. "No fact sub- mitted to me could lead me to believe that the employer intended to discipline Mr. Agbodoh-Falschau." ough Agbodoh-Falschau may have taken issue with how CNSC followed its performance appraisal policy or the fairness of the dismissal, this was not the issue to be decided, said the adjudicator. is issue was the nature of the dismissal and whether CNSC acted in bad faith. e adjudica- tor determined there was no bad faith and CNSC truly dismissed Agbodoh-Falschau for poor performance. For more information see: • Agbodoh-Falschau v. Canadian Nuclear Safety Commission, 2014 CarswellNat 167 (Can. Public Service Labour Rel. Bd.).

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