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One Bad Apple:  When Can an Employee’s Bad Attitude Justify Termination?

The recent arbitration decision in Sasktel v Unifor, Local 2S, 2019 CanLII 57057 (SK LA) arose after a long-time employee was dismissed from her position with SaskTel. While her competence and technical know-how were undoubted, her interpersonal skills left much to be desired. The main question in the grievance boiled down to whether the faults with her interpersonal relationships justified her termination.

The dismissed Employee worked in SaskTel’s Assignment Centre. Her job involved answering calls from residential and commercial installers in order to provide them with technical and administrative support. The Employee had been hired by Sasktel in 1997, and for the first 20 years of employment she received no discipline. There was no sign of any problem at all. The Employee excelled in her work, and demonstrated that she was able to handle the more challenging and technical problems that other workers could not. In 2013 she received congratulations for 20 years of service, thanking her for her dedication and commitment. By all accounts, the Employee seemed to be a shining star.

However in or about the same time she was being congratulated for her 20 years of service, faults began to appear, particularly in her interactions with co-workers. Her annual employee reviews (some of which she refused to sign) began to point to damaging work relationships caused by her high expectations. With time, her behaviour began to be described as “aggressive, offensive, disrespectful”. Co-workers were regularly reduced to tears after being berated by her, and she became known for her extreme use of profane language – the kind that would rarely be acceptable in any work environment. She received an official letter of reprimand, as well as two separate one-day suspensions.

In 2017, a third party was hired to perform a Work Environment Review. The review confirmed the suspicions that already existed. It found that the Employee’s behaviour created an unhealthy, stressful, and disrespectful work environment, and that such conduct amounted to harassment and bullying. The investigator found that interventions to date had little effect, and that the likelihood of the employee’s behaviour changing was low.

At arbitration, the Union acknowledged some room for improvement in the Employee’s behaviour but argued that it did not rise to the level that justified dismissal. The Union pointed to the Employee’s positive work history, including the absence of any discipline over her first 20 of employment, as well as in the 3 years immediately before the termination. Stressing the tall onus upon the Employer to establish just cause for dismissal, the Union argued that such a drastic measure could not be grounded on something as nebulous as “bad attitude”. They argued that she had essentially been terminated because she was unpopular.

The submissions of the Employer focused on the impacts her behaviour had on those around her. They argued that her behaviour made it impossible to maintain an atmosphere of respect in the workplace, and had caused “disruption, lost productivity and poor morale.” Further, the negative impacts of her behaviour were not limited to her co-workers. Her work in the call centre entailed interacting with the internal SaskTel clients who called in to the Assignment Centre for assistance. The Employer received numerous complaints about the Employee’s phone manners. Furthermore, as an objective indicator, the Arbitrator accepted that the Employee’s higher-than-average hang-up rate showed that clients would disconnect when they got her on the phone in the hopes of reaching a different worker in the Assignment Centre when they called back.

The Arbitrator acknowledged the Employee’s competence and positive work history with the SaskTel. It was also noted that some the Employee’s allegedly inappropriate behaviour was in fact common in the workplace, including frequent use of profanity. However at the end of the day, the Arbitrator held that her behaviour outstripped her co-workers and that it had a detrimental impact on the workplace. Furthermore, the Employee had failed to change her ways despite numerous opportunities, and refused to accept responsibility for her impact on others. Given the clear communication the Employee received in her performance evaluations, the Arbitrator rejected the argument that the Employer had condoned the Employee’s negative behaviour.

In upholding the dismissal, the Arbitrator did not absolve the Employer of all blame. The arbitrator specifically identified that the Employee’s Manager was slow to move from coaching to discipline in light of her repeated behavioural issues. Furthermore, while not compromising the ultimate decision to terminate, the Arbitrator did note that the Employer had failed to strictly follow its own harassment policy.

In the end, the Employee’s problem was more than just a bad attitude. The Arbitrator noted that an employee with a bad attitude can still behave civilly with co-workers (and is expected to do so). In this case however, the Employee’s attitude issues affected her interpersonal relationships such that her conduct amounted to harassment and bullying. In such a situation, an employer may be justified in terminating an employee in order to protect the right that other workers have to a safe and harassment-free workplace.

Dealing with a difficult but otherwise competent employee can be a particularly thorny task. This case demonstrates that bad attitude can justify termination when it results in harassment and bullying, but an employer must tread carefully. If you find yourself in this situation with an employee, it is best to seek legal advice. Field Law’s Labour and Employment Group can assist you.