Campbell v. Canadian Imperial Bank of Commerce

Campbell v. Canadian Imperial Bank of Commerce
Collection
Canadian Human Rights Tribunal
Date
2019-04-17
Neutral citation
2019 CHRT 13
File number(s)
T2239/6117
Decision-maker(s)
Harrington, Colleen
Decision type
Decision
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
13
Date:
April 17, 2019
File No.:
T2239/6117
Between:
Paul Campbell
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian Imperial Bank of Commerce
Respondent
Decision
Member:
Colleen Harrington
Table of Contents
I. Introduction 1
II. Issues 2
III. Context 3
A. Paul Campbell 3
B. CIBC 4
C. Paul Campbell’s Employment with CIBC 5
D. Events leading up to the neuropsychological assessment 8
E. The neuropsychological assessment 10
F. Job Accommodation Assessment Reports 11
(i) July 17, 2012 Report 11
(ii) October 22, 2012 Report 14
(iii) November 28, 2012 Report 15
G. Mr. Campbell’s performance following the Accommodation Assessment Reports 17
H. Events leading up to the termination 19
I. Termination of Employment 22
IV. Analysis 24
A. Can I rely on employment law principles, and how much weight, if any, should I attribute to the evidence relating to Mr. Campbell’s job performance throughout his employment with CIBC? 24
B. Has Mr. Campbell proven on a balance of probabilities that he was discriminated against by CIBC? 32
(i) Legal Framework 32
(a) Step 1: Prima facie discrimination 32
(b) Step 2: Justification for the alleged discriminatory conduct 34
(ii) Discriminatory Termination under Subsection 7(a) of the Act 35
(a) Mr. Campbell’s Position 35
(b) CIBC’s Position 36
(c) New Evidence Allegations 37
(iii) Subsection 7(a) Analysis 38
(a) Medical evidence that his unprofessional comments were linked to his disability 39
(b) Serious misconduct was persistent throughout his employment and was not related to a disability, but was simply his preferred way of doing business 41
(c) Specific consideration of his disability in the decision to terminate his employment 47
(d) Employment was terminated during the accommodation process 50
(e) Conclusion – s.7(a) of the Act 51
(iv) Discrimination under Subsection 7(b) of the Act 52
(a) Subsection 7(b) Analysis 53
(b) Conclusion – s.7(b) of the Act 55
V. Conclusion 56
I. Introduction
[1] In January of 2014, after being employed by CIBC as a personal banking representative at its Fredericton call centre for nearly thirteen years, Paul Campbell received a letter stating that his employment was being terminated due to ongoing concerns with his performance. Prior to terminating his employment, CIBC sought to determine whether his performance issues, which had been more pronounced since early 2010, were related to a disability. It was known within the workplace that, prior to being employed by CIBC, Mr. Campbell had been in a motor vehicle accident that left him with serious injuries, including a brain injury. Mr. Campbell was open about his accident and subsequent recovery because he was understandably proud of his accomplishments since then.
[2] In 2012, CIBC arranged for Mr. Campbell to undergo neuropsychological testing in order to obtain a better understanding of whether he had a disability that could be accommodated. In his report, the neuropsychologist stated that Mr. Campbell presented with, “mild to moderate neurocognitive difficulties”, with some impairments to his memory, attention and executive functioning. He concluded that the test results were indicative of Cognitive Disorder NOS [1] , and said Mr. Campbell’s impairments were not serious enough to meet the criteria for a more severe disorder.
[3] The neuropsychologist recommended occupational therapy, psychological support, and psychotherapy. Following receipt of this report, CIBC hired an occupational therapist to work with Mr. Campbell to ensure he was provided with accommodations that would permit him to be successful in his job.
[4] The timing of the termination of Mr. Campbell’s employment in relation to the accommodation process is in dispute. He argues that he was still being accommodated when CIBC decided to end his employment, thus making the termination discriminatory. CIBC says Mr. Campbell’s employment was terminated for legitimate non-discriminatory business reasons following serious misconduct and, in any event, it had exhausted all recommended accommodations for a reasonable period of time. It says that, because Mr. Campbell did not cooperate with reasonable accommodation efforts, CIBC satisfied its duty to accommodate him.
[5] For the reasons set out in this decision, I do not agree that Mr. Campbell was discriminated against in the course of his employment, nor that his termination was discriminatory, and I therefore dismiss his complaint.
II. Issues
[6] Certain evidentiary and legal issues arose during the hearing and in the closing submissions of the parties. In coming to my decision, I considered the following questions:
i) Can I rely on employment law principles, and how much weight, if any, should I attribute to the evidence relating to Mr. Campbell’s job performance throughout his employment with CIBC?
ii) Has Mr. Campbell established a prima facie case of discrimination? If so, has CIBC justified the discrimination by providing a defence under section 15 of the Canadian Human Rights Act (the Act)? In answering these questions, I considered the following two issues that arose in the parties’ written closing submissions:
Do I agree that Mr. Campbell introduced new evidence about his disability in his Reply submissions and, if so, should I disregard these allegations?
Should I draw a negative inference with respect to CIBC’s carriage of its case, including the decision not to call further witnesses? If I make a finding of prima facie discrimination, should I draw a negative inference with respect to CIBC’s decision to close its case after disclosing its Workplace Accommodation Policy? If so, does this preclude CIBC from calling a defence to the complaint?
III. Context
A. Paul Campbell
[7] In December of 1987 Mr. Campbell was in a serious motor vehicle accident that left him in a coma for fifty-one days. Among other injuries, he suffered a broken back, collapsed lung, and a traumatic brain injury. He was nineteen years old at the time and had hoped to pursue a professional hockey career. Mr. Campbell testified that, following the accident, he had to learn to walk, talk and tie his shoes again. He says that his capacity to learn is not diminished as a result of the accident, but says he now learns differently than he did before the accident.
[8] On February 20, 2001, after going back to university to obtain both a degree and a diploma, and after several years of supply teaching and various other jobs, he was offered employment with CIBC as a Customer Associate, President’s Choice Financial, Level 4, to commence March 2, 2001. His job title changed to Personal Banking Representative (PBR) at some point during his employment, although the basic job duties remained the same. He says he left supply teaching because, as a father of two young children, he needed a steady job with benefits, and he was unable to obtain a full-time teaching position.
[9] Mr. Campbell is understandably proud of his post-accident recovery and what he has accomplished since then. He is a motivational speaker and has written a book about his recovery. He says that his accident was fairly common knowledge in the workplace because he had been a high profile hockey player from a small town in the Maritimes and his story was reported in the media. He says his cousin worked in human resources at CIBC, which is how he learned about the job, and he recalls discussing his accident during his job interview. I accept that Mr. Campbell was comfortable telling both his co-workers and his telephone customers about his accident and recovery.
[10] Mr. Campbell acknowledges that he did not request any accommodation when he started working for CIBC because he did not think he had a disability that required accommodation. He testified that, because he had worked so hard to overcome barriers following his accident, he did not admit he had a disability that could be affecting his work performance until he received Dr. Turgeon’s report in June of 2012.
B. CIBC
[11] According to its post-hearing submissions, “CIBC is a leading financial institution that provides financial products and services to clients.” The Fredericton call centre where Mr. Campbell worked served both CIBC and President’s Choice Financial (PCF) during Mr. Campbell’s employment. CIBC no longer provides PCF banking services, but now provides services for Simplii Financial, a “digital bank”.
[12] At all times during Mr. Campbell’s employment, the Fredericton call centre received “inbound” calls, meaning the PBRs answered calls from customers seeking assistance with online banking, ordering cheques, applying for products, and sending drafts and wires. The representatives could also answer general banking questions. Mr. Bona testified that Mr. Campbell was a PBR in the “proactive queue”, meaning he was also to proactively sell CIBC products, including financing, refinancing and mortgages.
[13] Both Mr. Bona and Ms. Savage testified that, since the transition from PCF to Simplii Financial, PBRs have not done any sales. They both agreed that the work of the call centre is more complex now than it was when Mr. Campbell worked there, due to anti-money laundering legislation and related rules that have come into effect, and because of changes to mortgage requirements.
[14] The Fredericton call centre is one of many CIBC workplaces across the country, and Ms. Savage testified that there are subject matter experts in Toronto and Montreal, available for consultation and assistance with employee relations, workplace accommodations, and CIBC’s policies. Ms. Savage testified that the workplace accommodations team in Toronto has expertise with respect to accommodating employees with disabilities. She advised that Rhoda Lee, the Workplace Accommodation Program Manager with whom she worked on Mr. Campbell’s case, is now the Director of Workplace Accommodations for CIBC in Toronto. While Ms. Savage, as the human resources consultant at the Fredericton call centre, was aware of Mr. Campbell’s accommodation process and offered support to the accommodations team, it is clear that the workplace accommodations and employee relations experts were very much involved in the decisions relating to Mr. Campbell’s accommodation and his termination.
C. Paul Campbell’s Employment with CIBC
[15] A 2010 job description for a CIBC PBR states that CIBC’s employees are, “…focused on providing excellence in client service, product solutions and relationship-based advice….” The job description indicates that a PBR must follow all CIBC policies, procedures and standards, as well as its Code of Conduct, and must read, “all disclosures on the Agent Support Tool (AST).”
[16] Mr. Bona described the AST as being like the PBRs’ “bible”, as it contains all of the information they require to do their jobs effectively and professionally. The AST is located on a PBR’s computer desktop for ease of reference when speaking to customers on the telephone. Mr. Bona testified that the information in the AST is updated regularly and that important changes are communicated to employees through the “news of the day” located in the AST, or by email.
[17] The AST sets out the steps PBRs are to take to validate the identity of clients prior to discussing their private financial information over the phone. [2] The AST also contains “disclosures” that PBRs must read verbatim to clients prior to providing service, as well as “advises” that may either be read verbatim or paraphrased, which contain information that must be communicated to the client. Both Mr. Bona and Ms. Savage testified about the importance of using the AST and following all of the requirements set out therein, in order to reduce legal and reputational risk to the bank.
[18] Mr. Campbell testified that he was aware of these requirements while employed by CIBC. His job offer, which he signed on February 20, 2001, states:
The employment relationship in the Bank differs from other employment because of the unique nature of the banking industry and the way it is perceived by its customers and the community at large. The relationship is based upon a very high level of trust between the Bank and employees. This level of trust must be maintained as it is fundamental to the employment relationship. Bank employees must not only be, but be seen, by its customers and the community, to be honest and above reproach and they must conduct themselves at all times so as to meet this level of trust.
[19] Mr. Bona became Mr. Campbell’s Team Leader for the proactive queue in 2007. As Team Leader, Mr. Bona was responsible for coaching the PBRs on his team, answering questions, taking more difficult client calls, performance or attendance management, and administrative duties. Mr. Bona testified that Mr. Campbell already had a performance management file when he took over as his team leader. He testified that Mr. Campbell took up much more of his time than the other PBRs on his team, as he spent a great deal of time coaching Mr. Campbell one-on-one to help him improve his customer service skills and his employee evaluation results. At the hearing, CIBC entered over three hundred pages of coaching notes for Mr. Campbell from September 2008 to October 2013. Mr. Campbell objected to CIBC calling evidence relating to his performance due to the nature of his termination. I will address the objection and the appropriate weight of this evidence in the Analysis section below.
[20] CIBC also entered into evidence copies of Mr. Campbell’s quarterly evaluation forms, called “Performance Management and Measurement” (PMM) assessments or “Scorecards” [3] . Mr. Bona testified that the metrics against which employees were measured changed in 2009. Prior to that Mr. Campbell generally obtained satisfactory scores on his Scorecards, when five out of ten was considered satisfactory. The Scorecards provided from before 2009 show that Mr. Campbell received overall scores of between four and six, with his sales score always being higher than his call quality score. Mr. Bona said that, prior to the change in 2009, Mr. Campbell could obtain passing scores based upon his mortgage sales alone, but once greater emphasis was placed on the quality of service rather than on sales, his performance began to suffer.
[21] In 2009, the Scorecards changed from using numbered scores to ratings of “Exceeded Expectations (EE)”, “Met Expectations (ME)”, or “Did Not Meet Expectations (DNM)”. Both Mr. Bona and Ms. Savage testified that, following this change, if PBRs did not meet expectations for Call Quality and Accuracy on a quarterly Scorecard, they could not meet the overall expectations for that Quarter, even if they met expectations in the other categories, including sales. Ms. Savage testified that Call Quality and Accuracy became “qualifier measures” because they are the key measures that mitigate risk for the bank and so, if a PBR does not meet these qualifiers, they are not meeting the requirements of the bank.
[22] Mr. Bona testified that Mr. Campbell did not meet the Call Quality requirement on a regular basis because he consistently refused to use the AST and he often used unprofessional language or had unprofessional conversations with clients. He says Mr. Campbell regularly failed to properly validate clients who called in, or to communicate the “disclosures and advises” to them.
[23] Employees’ quarterly ratings were compiled at the end of the fiscal year and they received a Final Score for that year. Mr. Campbell’s Final Scores for each of fiscal years 2007 and 2008 was five out of ten. For fiscal years 2009, 2010 and 2011 his Final Score was DNM. For fiscal year 2012, his Final Score was “Undetermined”, even though he had received DNM for the first three quarters of the fiscal year. Although he also did not meet the Call Quality requirement for the last quarter of 2012, he was given an Undetermined for this quarter because CIBC was still implementing his accommodation plan, and so his Final Score for 2012 also reflected the fact that he was being accommodated. For fiscal year 2013, he received a Final Score of DNM, although the scorecards for the first three quarters of the year reflect a score of Undetermined because he continued to be accommodated during that time. Again, though, he did not meet the requirements for either Call Quality or Accuracy in any of those first three quarters of 2013.
[24] Although the documentary evidence is clear that Mr. Campbell did have performance issues for which he was disciplined or coached throughout much of his employment with CIBC, beginning with a 2004 warning letter for a failure to use the AST and unprofessional service that resulted in two customer complaints, I accept that CIBC became more concerned with Mr. Campbell’s workplace issues sometime in 2010.
D. Events leading up to the neuropsychological assessment
[25] On May 21, 2010, Mr. Campbell received a disciplinary letter for unprofessional language on a call for commenting on a client’s potential source of income, asking her if she had anything growing in her backyard that she would like to declare. He also provided her with his personal email address, in case she wanted to stay in touch with him. In the disciplinary letter, Mr. Bona says, “It is never appropriate to provide your personal e-mail to a client.… You need to be mindful of the conversations that you are having with our clients as you have exposed the business to potential legal and reputational risk.” The letter constituted a formal warning that if immediate and sustained improvement in his performance did not occur, further disciplinary action would be taken. When asked at hearing whether he thought it was appropriate to give a client his personal email address, Mr. Campbell initially did not see this as a problem because, in fact, he had given the client a fake email address. He admitted upon furthering questioning that he “made a mistake with that one.”
[26] In January of 2012, Mr. Campbell gave another female client his personal email address during a telephone call in which he discussed a range of personal topics. The CIBC employee who reviewed the call for quality described it as “a mini fiasco”. When asked about this call at hearing Mr. Campbell said in hindsight it probably was not appropriate, but he justified his behaviour by saying he did not have “bad intentions.” He initially said he was not flirting with the client, but rather building rapport with her, but then agreed upon further questioning that he was flirting and that it was inappropriate.
[27] There is evidence that Mr. Campbell had some awareness that his phone manner was not always appropriate, as in mid-2010 and early 2011 his own comments on his scorecards noted that he needed to be more professional, use less “fluff” and slang, use appropriate language, and use the AST rather than relying on his memory.
[28] On August 30, 2010 the Fredericton call centre’s Senior Human Resources Consultant, Anne Fitzpatrick, sent an email to a Senior Consultant, Employee Relations Policy & Governance for CIBC in Toronto, to say she had met with other managers in Fredericton to discuss “Paul’s case”. She inquired as to whether they could involve CIBC’s corporate medical director, Dr. Brown, in determining whether Mr. Campbell may require any accommodations. Ms. Fitzpatrick was asked to transcribe some of Mr. Campbell’s concerning calls in order to identify his various behaviours and was advised that Dr. Brown needed to be asked specific questions around Mr. Campbell’s communication abilities in relation to his claimed brain injury. In a November 25, 2010 email to Dr. Brown, Ms. Fitzpatrick said, Mr. Campbell “had a severe head injury prior to working with us. He has had issues throughout the tenure of his employment; however, they seem to have worsened over the last six to eight months. Paul has a difficult time grasping that conversations he is having with our customers are not appropriate, despite repeated discussions to this effect with him.”
[29] Ms. Fitzpatrick advised Dr. Brown that Mr. Campbell, “has been managed for a number of issues over the last five to six years”, including failure to validate clients’ identities prior to assisting them, improper sales tracking, and “not meeting call metrics (for example, managing how long it takes to ‘wrap’ a call, idle time, and hold time).” She said that he had also been placed on two Performance Improvement Plans (PIP), and had been on one since June of 2010. She sent Dr. Brown a summary of some of Mr. Campbell’s concerning phone calls as examples and said, “because we are aware that he has a head injury, we need to understand what, if any, accommodation he may need.” Along with this information, Ms. Fitzpatrick forwarded to Dr. Brown a concerning email from Mr. Campbell that was copied to Mr. Bona, dated September 3, 2010 that said: “they asked me if I wanted time off but I asked if there was any danger — they ruled out stroke or bloodclost — they are scheduling me for a neurolgicall assesmnet sometime within teh next month — where I was pralaysed from va — tehy think it could be nerves either dying or regowth ,,,who knew” (as written).
[30] Over a year later, in October of 2011, Mr. Bona had a conversation with Mr. Campbell about having a neuropsychological assessment. The script Mr. Bona had been provided with by his managers at CIBC to prepare for the conversation indicates that Dr. Brown had spoken with Mr. Campbell’s doctor, who indicated that such an assessment would be helpful in determining his abilities in the workplace, as well as any accommodations that may be required to help him to do his job successfully. Mr. Campbell agreed to undergo the assessment.
E. The neuropsychological assessment
[31] Mr. Campbell was eventually assessed by neuropsychologist Dr. Yves Turgeon, who conducted his assessment on April 18 and 19, 2012 in Moncton, New Brunswick, and provided his report on June 14, 2012. In the “Summary and Comments” section of his report, he notes that Mr. Campbell was referred for a psychological evaluation, “to better understand the scope of his cognitive abilities and psychological functioning pertaining to his ability to function in his credit-counselling job.” Under “Behavioural Observations”, Dr. Turgeon notes that, “[s]ubjectively, Mr. Campbell appears to have some degree of impairment in his attention and concentration, regulation of impulsivity, memory and speech.”
[32] Dr. Turgeon notes that Mr. Campbell’s verbal comprehension skills are significantly greater than his perceptual reasoning skills, which means he is better at tasks that are more verbal in nature as opposed to “hands-on” tasks and occupations, and so in his job he may be better at selling than “minutely managing accounts”. He observes that, “He would work well in a setting where there is routine and clear expectations of performance, and where he can learn at his own pace.”
[33] Dr. Turgeon concludes that, as Mr. Campbell’s executive performance was variable, he “would be able to achieve and maintain expected levels of cognitive performance, except in very specific work situations or environments.”
[34] With respect to learning and memory, Dr. Turgeon says Mr. Campbell’s test results show that he has, “clinically significant difficulties with short-term memory, long-term memory and the organization of memory.”
[35] Under “Recommendations”, Dr. Turgeon says Mr. Campbell presents with mild cognitive impairment overall, with moderate impairment only across very specific cognitive domains. He says he is expected to be able to function in everyday life, including at work, although he will struggle with more demanding tasks relating to his dysfunction. Dr. Turgeon recommends occupational therapy as well as psychological support to help him optimise benefits from occupational accommodations, such as routine interventions to, “palliate prospective memory impairment on the job site”, like using an agenda or other external memory aids.
[36] Dr. Turgeon says that Mr. Campbell’s behavioural impulsivity needs to be tackled first, during the implementation of specific occupational therapy strategies. He also says that Mr. Campbell, “needs to be helped to realise that he is not as efficient as he believes he is, at least not in everything that he does”, and recommends, “psychotherapy to help manage Mr. Campbell’s emotions and traumas, hoping to make him accept his disability, and continue to make the best of what he’s got.… He needs to be helped develop a more realistic perspective on his personal strengths and weaknesses.” Dr. Turgeon concludes by saying that he would be pleased to help orient occupational intervention with Mr. Campbell.
F. Job Accommodation Assessment Reports
[37] Following receipt of Dr. Turgeon’s report, CIBC contracted with an Occupational Therapist, Fran Robinson of Proactive Therapy Services, who came into the workplace and met with Mr. Bona and Mr. Campbell. She produced three Job Accommodation Assessment Reports – on July 17, 2012, October 22, 2012 and November 28, 2012.
(i) July 17, 2012 Report
[38] Ms. Robinson’s first report notes that, although Mr. Campbell still has a sales quota to meet, CIBC’s change in how it evaluates sales performance to now include call quality and the length of the call (which can have an effect on the number of calls taken per day), as well as compliance with procedures and regulations, has resulted in Mr. Campbell having more difficulties than he initially did because of his failure to adhere to all of the bank’s criteria. Ms. Robinson says that there is greater variance in the length of Mr. Campbell’s calls than is acceptable, with some calls lasting as long as fifty minutes. She also says that, if an employee does not adhere to all up-to-date requirements of the bank, like reading the AST, they are likely to make significant errors in their job.
[39] Ms. Robinson reviewed Dr. Turgeon’s report with Mr. Campbell and she notes that both he and Mr. Bona agreed that basic clerical tasks are difficult, and that his memory is a problem at work, as he tries to do all tasks while on the phone with a customer without making any handwritten notes. Mr. Campbell agreed he was too talkative and too impulsive sometimes. Ms. Robinson says Mr. Campbell may not use the telephone protocol because he does not check his daily emails and messages directed to all employees.
[40] She identifies a number of barriers to employment and provides several recommendations to address these. For example, in order to reduce office noise and allow Mr. Campbell to improve his concentration, she recommends he be provided with a headset that covers both ears.
[41] She says Mr. Campbell needs to check his call time throughout the day as self-cueing and regulating behaviour, and then have regular feedback on his call length in his biweekly meetings with Mr. Bona, which will provide him with regular reminders. She says Mr. Bona is also supposed to provide Mr. Campbell with more consistent feedback in these biweekly meetings to ensure Mr. Campbell is speaking appropriately to his customers and following the proper procedures. She says, “With such regular feedback, Mr. Campbell will be more apt to modify his behaviours.”
[42] Ms. Robinson further recommends that the client validation procedure should be repeated either by Mr. Bona or Mr. Campbell’s peer mentor, as this is a task he struggles with. She says regular repetition of the procedure will help him learn it.
[43] She recommends using a Post-it note or other system on his computer to assist him to remember to use the AST, rather than relying on his memory, and it would be helpful to have a checklist at his fingertips to help him quickly uncover the main concerns of clients and then deal with their issues.
[44] In addition, she recommends using a notepad and pen to jot down points such as the client’s name and the reason for the call while on the phone instead of trying to remember these details. Finally, Ms. Robinson recommends having Dr. Turgeon speak to Mr. Campbell directly regarding the assessment results, as well as having him speak to the employer regarding the assessment and recommendations. She indicates that her involvement and intervention on a periodic basis would be beneficial to follow through with the recommendations.
[45] Under cross-examination, Mr. Campbell either agreed that all of these recommendations were met or he could not remember whether they had been met. His impression was that either Mr. Bona did not do the regular check-ins with him to provide feedback, or that the feedback was not useful, but merely criticism. CIBC’s evidence, both documentary and oral, shows that all of the recommendations that were within their power to implement were followed. In addition to many coaching logs completed by Mr. Bona that indicate he complied with his obligations, there were two Accommodation Implementation Checklists prepared by Rhoda Lee and Mr. Bona to ensure Ms. Robinson’s assessment report was being followed. The checklists include dates of Mr. Bona’s follow-up sessions with Mr. Campbell and what was discussed. As Mr. Campbell could not recall whether all of the recommendations were followed, he could not deny that they were; as such, I accept CIBC’s evidence about its compliance with the assessment report as it remains un-contradicted.
[46] In a coaching log a month after Ms. Robinson’s first report, Mr. Bona indicates that he had spoken to Mr. Campbell about further action items that would help him with his calls, to avoid mistakes and allow him to complete calls with minimal help. Mr. Bona indicates that the intention was to, “get back to basics and build from there.” The action items put in place were to pull back on sales completely, ensure he is doing validation, reading disclosures, and following procedures on his calls to ensure risk and client impact are minimized. Mr. Bona also notes in the coaching log that Mr. Campbell had been hanging up on clients when their requests were more complicated, although at hearing Mr. Campbell said the hang ups were not intentional. Mr. Bona notes that they were looking for a commitment from Mr. Campbell to stop asking his coworkers for the procedures and to seek out the answers himself by actively using the AST. The coaching log says that all of these action items are, “compulsory requests on behalf of the business and are designed to help Paul build confidence and autonomy on his calls.”
(ii) October 22, 2012 Report
[47] Ms. Robinson’s second Assessment Report followed another visit to the workplace on October 4, 2012. In this report she notes that she also spoke with Dr. Turgeon on October 22nd about her assessment results and findings.
[48] She says Mr. Bona reported to her that the quality of Mr. Campbell’s phone calls had improved one hundred percent by following the strategies that were recommended.
[49] She notes that Mr. Campbell had been instructed not to initiate sales with customers unless a customer was requesting it or it was obvious this is where the conversation should be directed. Mr. Bona advised that Mr. Campbell had been following this restriction for the most part, until the last couple of days when he had started to initiate more sales with each phone call. Mr. Bona was concerned that he was not following instructions and that he would revert to his previous habits of lengthy and inappropriate phone calls with customers.
[50] Ms. Robinson notes that Mr. Campbell was using the binaural headset, using the AST procedures, and checking his emails, and that he now recognizes he has some memory limitations and is trying to eliminate some of the impulsive comments he used to make.
[51] In this report, she recommends that he continue to use the strategies put in place since July, including using a notepad to make notes while on calls and to complete his checklist. Mr. Bona was to work with Mr. Campbell on a responsive sales approach, rather than trying to make a sale out of every phone call, and was to hold weekly review meetings to follow up. She suggests that, after Mr. Campbell has adopted a responsive sales approach for two to three months, another review meeting be held with her to ensure that he is continuing to adhere to the strategies that have been initiated and that he has not reverted back to his old habits.
[52] Ms. Robinson notes that, in her conversation with Dr. Turgeon, he felt the bank should release pressure on the commission part of his sales so that he could focus more on the quality of his sales.
[53] A week following Ms. Robinson’s second report, Mr. Bona’s coaching log for Mr. Campbell says that CIBC had reintroduced sales by allowing him to responsively sell when he sees or hears an opportunity, but had noticed a decline in his quality results since then, as well as an increase in the number of questions he was asking Mr. Bona and his peers. Mr. Bona says he believes Mr. Campbell is regressing in certain parts of the accommodation plan since he is distracted when he is selling. Under cross-examination, Mr. Campbell said he was distracted because his brother was dying; however, two months later, Mr. Campbell received one hundred percent under Call Quality, despite his brother’s continuing terminal condition.
[54] The November 5, 2012 coaching log says that Mr. Campbell’s call quality continues to be poor due to procedural errors that could be easily avoided by referring to the AST. For example, he had failed to read certain disclosures, validate a client correctly, and advise a client that PCF offers mutual funds. Mr. Bona notes that Mr. Campbell continues to engage clients in non-business related conversations when his time could be better spent discussing the client’s financial needs, and that he needs to ensure the client’s initial request is processed prior to asking probing questions.
(iii) November 28, 2012 Report
[55] In her third and final Assessment Report, Ms. Robinson says she was advised by Mr. Bona that, since Mr. Campbell had started to integrate a sales component into his work again, his performance had begun to decline, and that he had returned to engaging in inappropriate conversations with clients.
[56] She says that Mr. Campbell had been meeting his Call Quality target of 70% prior to reintroducing sales, when it dropped again. She notes that Call Quality is a reflection of using the AST to follow protocols and to answer client questions.
[57] Ms. Robinson says they discussed the targets that PBRs were required to meet and whether it would be reasonable to lower Mr. Campbell’s targets given the context of his barriers. Mr. Bona was of the opinion that the Quality target could not be reduced below 70%, and Ms. Robinson agreed, as quality is an extremely important target. However, Mr. Bona thought that productivity and sales could remain lower than target as an accommodation, as these two areas had already been lower for Mr. Campbell for quite some time. He could not say how low these targets could be set for Mr. Campbell’s circumstances, but Ms. Robinson agreed both of these targets should be lowered. Both Mr. Bona and Ms. Savage testified, and Mr. Campbell agreed, that these targets were eventually adjusted as a form of accommodation.
[58] The Report notes that Mr. Campbell was still asking his colleagues for answers to questions instead of finding them in the AST himself, which was distracting to some of his colleagues. While he was supposed to put clients on hold to look up the information in the AST himself, Mr. Campbell felt that putting a client on hold while he researched a topic interfered with his ability to build rapport with clients.
[59] Ms. Robinson concludes by saying that the strategies put in place for Mr. Campbell, if followed, will help him do his job successfully. Neither she nor Mr. Bona nor Mr. Campbell were able to identify any further strategies that he could use to help serve as reminders for him to do his job more effectively. She says, “We provided him with the facts relating to his work performance and advised him that his quality needs to get up to the minimum standard and that this is more important than building rapport with his clients.”
[60] Mr. Bona agreed to continue his meetings with Mr. Campbell every two weeks and Mr. Campbell agreed to continue with a responsive sales approach, although Mr. Bona expressed concern that, as in the past, Mr. Campbell would slide back into his past habits, thus decreasing his quality again.
G. Mr. Campbell’s performance following the Accommodation Assessment Reports
[61] While Mr. Campbell appears to have met the Quality target for a couple of months following Ms. Robinson’s last report, by January 22, 2013, Mr. Bona noted in the Coaching Log that a number of Mr. Campbell’s old habits seemed to be showing up, although he remained positive and encouraging towards Mr. Campbell.
[62] On April 26, 2013 Mr. Bona advised Mr. Campbell that, as it had been recommended that consideration be given to adjusting some of his targets as part of the accommodation plan, CIBC had decided that, commencing May 1, 2013, some of his Performance Management and Measurement targets would be adjusted. Specifically, his lending targets would be reduced, as would the requirement that he complete a certain number of calls per hour (called True Calls Per Hour or “TCPH”). The letter further states that the other targets, such as Accuracy and Call Quality would not be adjusted. He was still expected to achieve at least 70% for Call Quality.
[63] In June of 2013, CIBC compiled a list of areas of concern from Mr. Campbell’s phone calls from October 1, 2012 to May 25, 2013. The list includes concerns such as Mr. Campbell lacking confidence or appearing confused when providing information to a client, providing incorrect information to a client, failing to update important information about clients, not adequately handling client complaints, hanging up on clients when they were still speaking, not properly validating clients, and failing to listen to clients, so that they had to repeat themselves numerous times.
[64] There is also a Documented Verbal Warning signed by Mr. Bona and Mr. Campbell from June 25, 2013 confirming that they spoke about Mr. Campbell’s, “workplace behaviour and workplace avoidance”, including issues such as Mr. Campbell providing an unfair advantage to a team member, frequently spending too much time on non-work related conversations with customers, having to be told three times in two weeks that he is no longer allowed to eat at his desk, and having to be spoken to numerous times about using his cell phone at his desk, which he had already been warned about a year prior. The document states that, if Mr. Campbell’s performance improves they would continue with the coaching and feedback they had been engaging in and, if his unsatisfactory performance continues, the employer would issue an initial warning letter.
[65] In July of 2013, Ms. Savage received an email from the call centre manager Michelle Lockhart with Mr. Campbell’s first quarter results for that fiscal year, which reflected the amended lending and calls-per-hour targets. It was noted that, despite the amended targets, he was not meeting expectations. Ms. Lockhart says, “I do think given his brothers (sic) situation he has been distracted but wanted to give it some visibility.”
[66] Between July 6 and September 3, 2013, Mr. Campbell was granted compassionate care leave to spend time with his brother. On September 9, 2013,