Communication breakdown: Offensive comments can constitute cause under Canada Labour Code
In a recent decision, an adjudicator upheld the dismissal of an employee/complainant who made inappropriate and offensive remarks on a call with a customer (Crawford v Canadian Imperial Bank of Commerce).
The complainant argued that the dismissal should be overturned on the basis that the employer did not deal with the complainant properly and the complainant was under stress. The complainant also sought to admit an expert report prepared by her physician, which stated the employer “was in the wrong”.
The Adjudicator ultimately dismissed the complaint, finding that the employer (CIBC) had just cause for dismissal, that it had “acted properly at all relevant times”, and that neither CIBC’s conduct nor the complainant’s stress were mitigating factors for the complainant’s misconduct. With respect to the evidentiary issue, the Adjudicator largely disregarded the physician’s report, finding that its “advocacy for the complainant has prejudiced the matter at issue”.
The complainant had been a Team Leader of CIBC’s client Contact Centre in Halifax, overseeing a team of 12 Financial Services Representatives. She was dismissed for cause following a 21-minute telephone call with a customer, throughout which she made numerous inappropriate and offensive remarks that were overheard by the members of her team and other Team Leaders.
The complainant acknowledged that the call was disrespectful and inappropriate, but she nonetheless sought to excuse her behaviour on the call as the result of compounding stress from personal circumstances outside of work, which she claimed affected her relationships with coworkers. She alleged that CIBC had failed to treat her fairly in workplace investigations involving her ex-spouse, a coworker in the Contact Centre, and failed to accommodate return to work following a five month short-term disability leave.
The Adjudicator applied the factors for just cause outlined in Wm Scott, namely:
(i) Serious offence – The call was a serious breach of the Code of Conduct. The complainant’s managers testified that it was one of the worst calls they had ever heard in the Contact Centre. The complainant acknowledged that it was a bad call.
(ii) Premeditated, repetitive conduct – Considering that the call lasted 21 minutes, and the banter with Financial Services Representatives, it could not be stated that the call was a momentary lapse or anything other than what was intended.
(iii) Service and prior discipline – The complainant was a six-year employee who had received discipline for breaches of customer service on four prior occasions. The most recent disciplinary letter, for breaches of confidentiality, was given four months before the termination. It warned that any breaches of the Code of Conduct would result in termination without notice or payment in lieu.
(iv) Employer had attempted corrective discipline – The disciplinary record spoke for itself. The complainant was duly warned that any further breaches would result in termination.
(v) Discharge consistent with policies – There was no evidence at the hearing to show the complainant was singled out unfairly.
Having considered the complainant’s various arguments, and the factors for just cause outlined in Wm Scott, the Adjudicator dismissed the complainant’s request for financial compensation.
The serious nature of the complainant’s handling of the telephone call was underscored by the testimony by management that it was “one of the worst calls they had ever heard” in the Contact Centre. In addition the Adjudicator found the complainant “harmed her credibility in instructing and assessing” the work of those she supervised, which was one of her “core functions”.
Despite finding the complainant was in an abusive relationship with the ex-spouse and suffered “terrible stress” as a result, the Adjudicator found the evidence insufficient to support a connection between the complainant’s stress and her behaviour on the call.
Aside from the stress diagnosis, the Adjudicator largely disregarded the medical evidence that the complainant sought to introduce. In particular, the physician’s report was found inadmissible, based on the physician’s own admission that “the report was not connected to CIBC’s dismissal of the complainant.” The Adjudicator further noted that the report’s prejudice of the matter “would undermine the independence of the process.”
Regarding CIBC’s treatment of the complainant, the Adjudicator found that CIBC had completed a “fulsome” investigation of the complainant’s harassment complaint. CIBC conducted interviews of witnesses and followed up on all the allegations made in connection to the complaint. Finally, the Adjudicator found that CIBC had taken “all reasonable steps” to accommodate the complainant’s return to work, including fulfilling the complainant’s recommendations for her own accommodation.
The employer acted “properly”
In reaching the conclusion that “CIBC acted properly at all relevant times” and treated the complainant fairly, the Adjudicator focused on several aspects of the employment relationship.
Employment agreement and Code of Conduct
Both the complainant’s Employment Agreement and the CIBC Code of Conduct were entered by CIBC as exhibits. The Adjudicator made frequent reference to these documents, using them to evaluate the complainant’s behaviour, and measure the adequacy of CIBC’s dismissal process and conduct.
Prior discipline and warnings
CIBC produced copies of letters they sent to the complainant with respect to her continuing concerning workplace behaviour. These letters detailed CIBC’s progressive discipline process, including a letter provided four months prior to termination which specifically warned that any further breaches of the Code of Conduct would result in termination. The Adjudicator concluded the “complainant was duly warned” of the consequences of her misconduct.
Other record keeping
CIBC also maintained extensive records of performance evaluations and conversations with the complainant that they relied upon to show that the statements the claimant gave during her performance evaluations and throughout the workplace investigation into her ex-husband were entirely at odds with what she alleged in the complaint.
For example, during her performance evaluations, the complainant had indicated that she was very satisfied with her CIBC managers’ support and leadership and was in a good place with her job and personal life. This was used to effectively respond to her allegations in the complaint, that CIBC had not investigated her complaint or accommodated her needs sufficiently.
Finally, CIBC produced a transcript of a recording of the call in question that was able to show exactly how that conversation transpired. The Adjudicator relied on the extensive records CIBC provided to ground the factual basis of the decision.
Following a short-term disability leave (months in advance of the call and unconnected to the reasons for dismissal), CIBC took action to accommodate the complainant’s return to work. They listened to her requests, and implemented shift changes and changed her work locations within the workplace to minimize contact between the complainant and her ex-spouse. When the complainant requested to be put back on the same shift as her ex-spouse, CIBC once again accommodated her request. CIBC did not transfer the complainant to another call centre, but the Adjudicator agreed with management that the fact that the complainant was involved in a discipline investigation at the time made a transfer inadvisable.
CIBC had a process in place for investigating workplace complaints, and rules governing the participation of employees in that process as witnesses. At all times, CIBC communicated the process and rules to the employees involved. Although the complainant alleged that CIBC had an obligation to look into the allegations of domestic abuse outside of work, CIBC recommended the complainant take this matter to the police as it would be an inappropriate overreach for them to be involved – a decision endorsed by the Adjudicator.
Stress not a mitigating factor; “participant expert” report inadmissible
The complainant had attempted to rely on a medical report authored by her primary care physician as a “participant expert” report to ground her argument that her actions were a result of significant stress caused by the workplace harassment of her ex-spouse, the allegedly inadequate investigation, and the alleged failure of CIBC to provide adequate accommodation after the fact. The Adjudicator found that the report upon which the complainant sought to rely expressly indicated that the findings in the report were not related to the complainant’s dismissal. Although he did consider the physician’s general medical evidence that the complainant was under stress at the time of the call, he found that there was no “reasonable connection so as to mitigate the complainant’s behaviour on the telephone call”.
By clearly setting expectations in a Code of Conduct or Employment Agreement, and detailing the consequences of breach of those expectations, employers can create a basis to evaluate a case for just cause. Maintaining thorough, contemporaneous records can provide a clear picture of the employer’s handling of investigations and discipline, despite allegations to the contrary made after the fact.
There is little an employer can to do intervene in relationships between employees that are entered into consensually outside of work. Accusations of domestic violence outside of work must be taken seriously, and any allegations of workplace harassment and violence duly investigated. An employer should encourage the victim to report any incidents occurring outside of work to policing authorities, and allow those authorities to take the lead. Meanwhile, the employer can consider the feasibility of any temporary arrangements proposed by the accuser to separate her from the accused in the workplace.
This client update is provided for general information only and does not constitute legal advice. Stewart McKelvey is here to help with your labour and employment needs. If you have any questions about the above, please contact a member of our Labour and Employment group.
Click here to subscribe to Stewart McKelvey Thought Leadership articles and updates.
By Christine Pound, ICD.D, Rebecca Saturley, & Daniel Roth Canada’s anti-modern slavery legislation comes into force on January 1, 2024. To prepare for the first reporting deadline on May 31, 2024, organizations need to determine…Read More
By Brian Johnston, K.C. and Richard Jordan On November 9, 2023, Minister of Labour, Seamus O’Regan, introduced Bill C-58 in the House of Commons to amend the Canada Labour Code to prohibit the use of…Read More
By Kevin Landry & Eryka Gregory The Retail Payment Activities Regulations (“Regulations”) under the Retail Payment Activities Act (“RPAA”) were finalized and published in the Canada Gazette Part II on November 23, 2023. The RPAA was…Read More
By Kevin Landry On November 9 2023, Bill C-365, An Act respecting the implementation of a consumer-led banking system for Canadians (“C-365”), short titled as the ‘Consumer-led Banking Act’ was read in the House of…Read More
By Jennifer Taylor The Nova Scotia Court of Appeal (“NSCA”) has issued an important decision clarifying the test to disallow a limitations defence. The decision, Halifax (Regional Municipality) v Carvery (“Carvery”), has real implications for personal…Read More
By Deanne MacLeod, K.C., Burtley Francis & David Slipp On September 21, 2023, the Federal Government introduced Bill C-56: An Act to amend the Excise Tax Act and the Competition Act (“Bill C-56”), with the…Read More
By Nancy Rubin, K.C. and Lauren Agnew The long-awaited Green Choice Program Regulations (N.S. Reg. 155/2023) were released by the provincial government on September 8, 2023, offering some clarity into the practical implementation of Nova…Read More
By Koren Thomson, John Samms, and Matthew Raske The Newfoundland and Labrador Court of Appeal has held that the Information and Privacy Commissioner for this province (the “Commissioner”) does not have the authority to order…Read More
By Perlene Morrison, K.C. Municipalities are required to pass code of conduct bylaws in accordance with section 107 of the Municipal Government Act (the “MGA”). Subsection 107(1) of the MGA specifically states that a municipality’s…Read More
By Sheila Mecking and Kathleen Starke On August 23, 2023, the Ontario Superior Court (“ONSC”) upheld a complaints decision which ordered a psychologist to complete a continuing education or remedial program regarding professionalism in public…Read More