Canadian Employment Law Today

August 30, 2017

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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©2017 Thomson Reuters Canada Ltd. 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, photocopying, 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. 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: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Should the employee have been given another chance? OR Did CIBC have just cause to dismiss the employee? IF YOU SAID CIBC had just cause to dis- miss the employee, you're correct. e adju- dicator found there was no evidence CIBC set the employee up to fail. ere was no reason for the branch manager to expect the employee wouldn't be able to pass the CIFC exam, since she was a good employee and had passed other internal bank exams. e bank also allowed her three attempts to write it — covering the cost for all three — and gave her time to prepare when needed. ere was no evidence the employee asked for more time off to study if she needed it. e course was supposed to be self-study and the branch manager asked to be in- formed of any issues that could impede the employee's ability to pass the exam. e adjudicator noted that the CIBC had a right to defi ne the job duties and require- ments of an FSR and the right to remove the employee if she wasn't legally qualifi ed. e adjudicator also noted that it would be un- just to promote an employee from a secure job to one leading to termination if a qualify- ing exam isn't completed, but the employee chose to apply for the job and took the risk upon herself. e employment letter clearly stated that if the employee didn't pass the course she would be terminated from CIBC. e adjudicator found not off ering the em- ployee a CSR position — which she had done successfully for years — before terminating her employment would be unjust. However, the bank didn't have the opportunity to do so, as the employee kept insisting she wanted to be an FSR. Rather than accepting the fact she couldn't pass the required course, she wanted to keep taking it, resulting in a delay for the bank to properly fi ll the FSR position. "In the end it was (the employee) who per- manently severed the employment relation- ship by ruling out a return to work at CIBC," said the adjudicator. "Having taken this at- titude that she deserved to remain as a FSR2 until she passes the exam, refusing to apply for CSR work, and stating how she no lon- ger respected CIBC; she gave the employer just cause to terminate her employment." See Smith and Canadian Imperial Bank of Commerce, Re, 2014 CarswellNat 8860 (Can. Lab. Code Adj.). Employee dismissed after failing qualifying exam for new job 3 times THIS EDITION of You Make the Call features a bank employee who failed a test required for her new position. e employee was hired in November 2009 as a customer service representative (CSR) in retail distribution at a Canadian Imperial Bank of Commerce (CIBC) branch in Fort St. James, B.C. She had several years of experience working at other banks. In March 2012, the employee applied for an opening for a fi nancial service represen- tative (FSR), which involved opening bank accounts, negotiating loans, and selling credit cards, mutual funds and other invest- ment products. She was hired after becom- ing one of two fi nalists for the position. Before starting the new position, the employee signed a letter of employment acknowledging that she must within six months successfully complete a Canadian Investment Funds Canada (CIFC) course or a Canadian Securities Course, so she could be accredited by the B.C. Securities Exchange to sell mutual funds. e letter of employment added that if she didn't achieve the accreditation within six months her em- ployment would terminate with no further entitlement. e CIFC course required a pass rate of at least 60 per cent. e employee took the course in December 2013 and January 2014, failing both attempts. On Feb. 4, 2013, the CIBC branch manager gave the employee a warning letter that she must pass the CIFC course by March 5 or else "your employment with CIBC will end with no requirement for additional notice or severance." e let- ter also asked the employee to inform the branch manager if there were any additional issues that could impede her ability to get the accreditation. e employee wrote the CIFC exam a third time on Feb. 27. She improved from her fi rst two attempts, but still failed with a mark of 53 per cent. As she was improving and get- ting closer to passing with each attempt, she told the branch manager she wanted to write the exam a fourth time. e branch man- ager wished to consult with others for a few days, which the employee found to be stress- ful. She complained to the HR department about bullying and harassment, but the HR department advised her to be patient. On March 6, the branch manager and the district manager met with the employee to tell her she was terminated because she failed the CIFC course. e employee returned her keys and name tag and left the branch. e employee then fi led an unjust dis- missal complaint, arguing that since CIBC didn't want to give her another chance, it set her up to fail by off ering her the FSR position before she passed the required course and not giving her enough time to study. She also stated she didn't want to return to work for CIBC as she felt bullied and treated unfairly.

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