Grievance File Nos.: 2013.014  
Under the Canada Labour Code, R.S.C. 1985, c. L-2  
B E T W E E N:  
(the “Company”),  
- and -  
(the “Union”),  
For the Union:  
Gordon F. Luborsky  
Marisa Pollock, Counsel  
Benjamin Katz, Counsel  
John Hockley, Business Agent  
Isabelle Miller, National Vice President  
Leighann Neal, Shop Steward  
Tracy Baker, Grievor  
For the Company:  
John D. R. Craig, Counsel  
Jackie VanDerMeulen, Counsel  
Deanah Shelly, Counsel  
Debbie Leclerc, Manager, TELUS  
Ronnie Olsen, Manager, TELUS  
Sofia Alonso, TELUS Labour Relations  
March 3, 6, 7, November 24, 26, December 1, 2, 3 and 5, 2014,  
June 9, 10 and July 29, 2015, January 12, 14, May 10, 11, 12,  
June 6, 28, 30, September 18 and 30, 2016  
Toronto, Ontario  
November 1, 2016  
January 9, 2018  
Page 2 of 196  
With the consent of the parties I issued my Decisionwithout reasons concerning three  
grievances filed by the Union on behalf of the Grievor, Ms. Tracy Baker, challenging as unjust:  
(i) a five-day disciplinary suspension without pay by letter dated November 12, 2012 for having  
allegedly “misappropriated company time, improperly “accessed [the Grievor’s] own personal  
account for non-work related reasons” and lack of professionalism when dealing with clients”  
(“Grievance No. 1”); (ii) the Grievor’s “first dismissalfrom employment effective January 11,  
2013 for alleged “refusal or neglect to report to work” (“Grievance No. 2”); and (iii) the  
Grievor’s “second dismissalfrom employment by letter dated March 11, 2013 addressed to the  
Union for alleged “inappropriate access and misuse of TELUS resources, breach of the corporate  
security policy, and failure to follow a management directive” (“Grievance No. 3”).  
The Decision was rendered in a “bottom line” fashion on November 1, 2016 after  
reviewing and considering the extensive oral and documentary evidence and submissions  
presented by the parties over the 22 days of hearings that extended some two and one-half years  
in order to provide an expedited result, with the partiesagreement that I would retain  
jurisdiction to issue my fulsome Reasons for Decisionat a later date.  
In my Decision I dismissed Grievance No. 1, the five-day suspension without pay.  
However, I allowed Grievance No. 2, the Grievor’s first dismissal effective January 11, 2013, as  
well as Grievance No. 3, the Grievor’s second dismissal by letter dated March 11, 2013. A copy  
of my Decision is attached hereto as Appendix A.  
I accordingly ordered the Company “to reinstate the Grievor forthwith to the position she  
held on January 11, 2013 with compensation to make her whole for all losses calculated from  
that date to the date of her reinstatementamong other forms of relief set out in paras. 13 17 of  
the Decision, reproduced below:  
Page 3 of 196  
¶ 13. Having regard to the foregoing, the termination letter dated January 11, 2013 shall be  
removed from the Grievor’s employment record.  
¶ 14. The Company is ordered to reinstate the Grievor forthwith to the position she held as of  
the date of her termination on January 11, 2013, with compensation to make her whole for all  
losses calculated from that date to the date of her reinstatement.  
¶ 15. The termination letter dated March 11, 2013 shall also be removed from the Grievor’s  
employment record.  
¶ 16. The remedy in allowing the March 11, 2013 termination grievance is encompassed within  
the reinstatement and compensation order concerning the January 11, 2013 termination dealt with  
by Grievance No. 2.  
¶ 17. In addition to retaining jurisdiction to deliver Reasons for Decision in accordance with the  
parties’ agreement recorded above, I shall remain seized to resolve any dispute concerning the  
interpretation and/or implementation of the relief ordered herein and calculation of the  
compensation payable to the Grievor, as requested by the Union at the outset of these arbitration  
The following are now my detailed Reasons for Decision in determining these three  
grievances that also addresses a post-Decision remedial dispute between the parties. I am  
grateful to the parties for their forbearance that permitted me the additional time required to  
provide a comprehensive explanation of my findings and conclusions on the evidence and  
arguments submitted over this lengthy case.  
General Background and Overview of Grievances  
The Company, interchangeably referred to as TELUS, is a Canadian national  
telecommunications provider of a wide range of telecommunications products and services  
including internet access, voice transmissions (landline and mobility), entertainment, healthcare,  
video and Internet Protocol Television (IPTV) having some 45,000 employees. Its Headquarters  
is located in Vancouver, British Columbia, but at all material times the events of the present  
grievances primarily arose out of the Company’s operations in Scarborough, Ontario, although  
there is a British Columbian involvement as well.  
At the time of the relevant events the Grievor, Ms. Tracy Baker, lived in the City of  
Oshawa, Ontario, in her parents’ house, just east of Scarborough. She began her career with one  
of the Company’s predecessors in or about November of 1998 which was her first full-time job  
upon completing college at the age of 19 or 20, working in a call centre environment where she  
Page 4 of 196  
interacted with customers in connection with their telecommunications services. The Company  
acquired that predecessor corporation about one year later and over the next 13 or 14 years, the  
Grievor held various positions in the call centre with growing responsibilities in matters that  
included: (a) “Mike Activation”, referring to the two-way dispatch networks for new corporate  
clients; (b) “Loyalty and Retention”, which is a functional unit intended to secure the continuing  
patronage of customers (often with offers of what were described as “free perks”), where the  
Grievor also handled “escalated calls” from dissatisfied customers (usually concerning billing  
issues); (c) “Channel Care”, where she provided support for dealers on system issues and was  
cross-trained to oversee corporate accounts of various sizes and complexities; to finally handling  
(d) cellphone and related services for the Company’s largest corporate clients such as major  
banks, heath care facilities and governmental agencies requiring special skill and attention. In  
her last position as a Corporate Support Agent” (or “CSA”) the Grievor received “in-bound”  
calls from very large corporate clients where customer service is key to the Company’s  
competitiveness, and as such the Grievor was given broad discretion to issue credits (up to $400)  
and to add users or features to a customer’s account on her own initiative to satisfy the  
customer’s immediate and ongoing needs.  
While the Grievor reported to the Company’s Scarborough office which is a call centre  
where hundreds work, she was permitted to work from her (parents’) home under the Company’s  
At Home Agent Program”, which is restricted to those employees who are felt to be trustworthy  
and able to work with minimum supervision. That Program is established under article 16 of the  
collective agreement which states in article 16.04 that in the event the Company decides to  
terminate the program: “The Company will normally provide sixty (60) days written notice to  
the participating employees and the Union…although it is recognized that in exceptional or  
unusual circumstances the Company may provide less than sixty (60) days’ notice.”  
Prior to the events leading to the Grievor’s five-day suspension without pay and her  
subsequent discharge the Grievor had been working as an At Home Agent for six years, and  
there was no suggestion that the Grievor received discipline from the Company at any time, but  
certainly there was none during the two-year sunset clauseunder article 10.03 of the collective  
agreement (reproduced below) that requires the removal of such discipline from an employee’s  
record if clear during that period.  
Page 5 of 196  
[10] However the situation changed quickly in the fall of 2012.  
[11] The first discipline issued to the Grievor arose out of alleged events that occurred from  
June 13, 2012 to November 12, 2012 (hereinafter “Period 1”) resulting in a five-day suspension  
without pay served from Friday, November 9 until Friday, November 16, for reasons that are  
described in the following letter from the Grievor’s then manager, Ms. Debbie Leclerc, dated  
November 12, 2012:  
Subject: 5 Day Suspension  
Dear Tracy,  
This letter is confirmation of our meeting on November 8, 2012, and serves as written notice of  
your five day suspension with respect to your recent misconduct.  
Over the past several months, you have repeatedly and deliberately misappropriated company  
time by call avoidance, having excessive call pick up times, and by queue surfing. You have also  
accessed your own personal account for non-work related reasons, and you continue to  
demonstrate lack of professionalism when dealing with clients.  
During our investigative meeting on November 8, 2012, you failed to take accountability for your  
behavior. Tracy, this behavior is unacceptable. Your actions have resulted in calls being  
abandoned and have created a poor customer experience. In addition, it impedes our ability to  
meet customer service level targets and provide consistent, high quality service to our clients.  
I would like to clarify my expectations that:  
During company-paid time, it is imperative that you be performing work-related activities.  
You are expected to wear your headset and turn the volume/ringer on so that you can  
hear calls coming in.  
Immediately upon completion of a client call and the follow-up work associated with that  
call, and immediately after scheduled breaks, you are to place yourself back into an  
available state to take the next waiting call.  
You are expected to answer calls as soon as they come into your line with minimal delay.  
You are not to access your personal account using Knowbility or Smartdesktop for any  
You are to conduct yourself in a professional manner with clients, using positive word  
choices and positive tone.  
The behaviors that you have been demonstrating are inexcusable and cannot be tolerated. Your  
conduct is contrary to TELUS’ expectations, and clearly acceptable (sic). In order to impress upon  
you the seriousness of this situation and convince you to take immediate steps to correct your  
behavior, you are suspended for five days as of Friday November 9, 2012. You are to report for  
work as scheduled on Friday November 16, 2012 at your scheduled start time. Please be advised  
that if the issues noted are not addressed, or if there are any other issues with performance or  
misconduct that arise, further disciplinary action will be taken up to and including dismissal.  
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[12] The Union consequently filed its grievance “2013.021” dated November 16, 2012  
(Grievance No. 1) alleging that the discipline was without just cause in violation of articles 8 and  
10 of the collective agreement in effect from June 9, 2011 to December 31, 2015, the relevant  
portions of which are set out below:  
Unless otherwise explicitly agreed to in this agreement, management retains the exclusive  
right to manage its operations in all respects including the direction of the working forces.  
The Company agrees that any exercise of these rights shall not contravene the provisions  
of this agreement.  
10.01 An employee who has successfully completed the probationary period, shall not, for  
disciplinary reasons, receive a written warning, suspension or be dismissed, except for  
just cause.  
An employee may request the presence of an available Union representative at a meeting  
between a manager and the employee if the purpose of the meeting is to impose  
discipline. The requested presence of a Union representative may be by way of  
teleconference where a Union representative is participating in either the At Home Agent  
or work styles program or any other situation where the parties mutually agree.  
Disciplinary action is to be confirmed in writing, with a copy to the Union  
10.03 Upon request from an employee, letters confirming disciplinary action of a written warning,  
or suspension of five (5) days or less, shall be removed from the employee’s file two (2)  
years after the date of the incident provided there are no incidents of a similar nature  
within that two year period. Upon request from an employee, all other letters confirming  
disciplinary action shall be removed from the employee’s file five (5) years after the  
incident provided there are no incidents of a similar nature within that five year period.  
[13] The Grievor’s “first dismissalwas issued to her by letter dated January 11, 2013 for  
“refusal or neglect to report to work” arising out of the Grievor’s absence from the workplace for  
alleged stress related illness beginning November 28, 2012 to that date (hereinafter “Period 3”),  
which was couriered to the Grievor’s home. The termination letter was signed by her new  
manager, Mr. Ronnie Olsen, who set out the following reasons for the Grievor’s termination:  
This letter is further to our correspondence dated January 7, 2013 and December 21, 2012, via  
letter regarding your absence from work since November 28, 2012.  
Page 7 of 196  
I have attempted to contact you via telephone and courier on the dates above. I specifically  
required that you contact me via telephone or report to work by today, Friday, January 11, 2013. In  
addition, several voice mail messages have been left for you by me and Health Services.  
The purpose of this letter is to inform you that we have terminated your employment with TELUS  
based on your refusal or neglect to report to work. To date, TELUS has not received any  
documentation which supports your absence from work. As well, you have not returned to work as  
Your failure to report to work or provide sufficient information to explain your absence is totally  
unacceptable. Therefore your employment is terminated immediately. Your record of employment  
and final earnings will be forwarded under separate cover.  
[14] The Union responded to this first dismissal letter with its grievance “2013.014” dated  
January 21, 2013 (Grievance No. 2), claiming that the Company’s actions violated articles 4, 8,  
10 ET AL” and the terms of a Memorandum of Agreement set out at Appendix B East of the  
collective agreement under the title, “Team TELUS Flex Benefits”. The relevant portions of  
Article 4 and Appendix B East state:  
The Company and the Union shall not discriminate on the basis of race, national or ethnic  
origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability  
and conviction for which a pardon has been granted and as otherwise provided by the  
Canadian Human Rights Act, unless proper and just cause exists.  
It is agreed and understood that Regular full-time and Regular part-time employees covered by  
appendix B will participate in the Team TELUS Flex Benefits plan as it is described on the TELUS  
intranet (“Team TELUS Flex Benefits Manual – For regular full-time and regular part-time team  
members covered by Appendix B of the collective agreement with the TWO”). In addition,  
Temporary employees covered by Appendix B will continue to participate in the team TELUS Flex  
benefits plan as it is described on the TELUS intranet (“Team TELUS Flex Benefits Manual – For  
temporary team members covered by Appendix B of the collective agreement with the TWU”).  
[15] I was not told the specific details of the Team TELUS Flex Benefits as they relate to  
short term disability absence (except for the testimony of Ms. Bargen, considered below). The  
details of that plan are apparently set out on an internal Intranet feed available to all employees.  
However I was informed that it provides substantially the same benefits that regular full-time  
Page 8 of 196  
employees in Western Canada receive under Appendix A West of the collective agreement,  
the relevant portions of which are as follows:  
It is agreed and understood that Regular full-time and Regular part-time employees covered by  
Appendix A will be eligible to participate in the following benefit plans:  
Sickness or Non-Occupational Accident Disability Absence  
1. An employee who is unable to work because of sickness or non-occupational accident is  
eligible for short term disability benefits as provided for under the terms and conditions of the  
short term disability plan provided the employee’s absence meets the plan requirements in  
accordance with the following:  
Years of Service  
0 3 months  
Days at 100%  
Days at 70%  
4 months to 2 years  
3 years to 5 years  
6 years to 10 years  
11 years to 15 years  
16 years an over  
2. The Company agrees to expedite the payment of short term disability benefits providing the  
employee has followed the established claim procedures and the required documents have  
been received by the Company. Under normal conditions, the employee’s short term disability  
benefits payments will appear on their regular pay.  
3. An eligible employee will receive payment under the plan for the first two (2) weeks of absence  
pending receipt of the required medical documentation.  
[16] Also of some relevance in this case are articles 4.01 (Discrimination) and 8.01  
(Management Rights) that are set out below:  
The Company and the Union shall not discriminate on the basis of race, national or ethnic  
origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability  
and convection for which a pardon has been granted and as otherwise provide by the  
Canadian Human Rights Act, unless proper and just cause exists.  
Page 9 of 196  
Unless otherwise explicitly agree to in this Agreement, management retains the exclusive  
right to manage its operations in all respects including the direction of the working forces.  
The Company agrees that any exercise of these rights shall not contravene the provisions  
of this Agreement.  
[17] In the course of the grievance meetings between the parties to discuss the first dismissal  
grievance (Grievance No. 2), the Grievor was dismissed a second time by letter dated March 11,  
2013 for events that the Company alleged occurred between November 13, 2012 and November  
27, 2012 (hereinafter “Period 2”). That letter, written by Ms. Cheryl Fraser who is identified as  
the Company’s Senior Labour Relations Consultant was never delivered to the Grievor directly,  
but rather was addressed to the Union’s Business agent, Mr. John Hockley. It sets out the  
reasons for the Grievor’s second dismissal in relevant part as follows:  
T. Baker Dismissal for Cause  
I am writing to advise you of the company’s position with respect to the above employee, who was  
terminated for cause effective January 11, 2013. As I discussed with you in the Step 3 grievance  
meeting, on November 27, 2012 the Company conducted an investigative meeting with Ms. Baker  
regarding her inappropriate access and misuse of TELUS resources, breach of the corporate  
security policy, and failure to follow a management directive.  
As you are aware, Ms. Baker’s employment was terminated for reasons unrelated to the alleged  
inappropriate actions. These inappropriate actions were not included in the reasons for termination  
as Ms. Baker had not returned to the workplace for a sufficient length of time to allow for this matter  
to be concluded. Notwithstanding this, the Company maintains that we have sufficient evidence to  
demonstrate that Ms. Baker engaged in actions that were inappropriate and in violation of the  
TELUS’ Ethics and Security Policies.  
Without prejudice to the Company’s position on grievance 2013.014, should Ms. Baker be  
reinstated as a result of the parties arbitrating the above matter (2013.014), this letter serves to  
advise that a second dismissal will be deemed to have been initiated effective today. The cause of  
the second dismissal is Ms. Baker’s inappropriate access and misuse of TELUS resources, breach  
of the corporate security policy, and failure to follow a management directive.  
[18] After seeking clarification of the Company’s March 11, 2013 letter and being advised by  
Ms. Fraser on May 8, 2013 that the Grievor’s alleged misconduct during her five-day suspension  
until her November 27, 2012 investigative meeting, “remains a legitimate basis on which  
TELUS would be entitled to terminate Ms. Baker’s employment” and that, “TELUS reserves the  
right to rely on this misconduct in the future”, the Union filed its grievance “2013.123” dated  
Page 10 of 196  
May 23, 2013 challenging the Company’s “second dismissalof the Grievor as unjust in  
violation of articles “8, 10, ET AL and any other provisions and statutes” (Grievance No. 3).  
[19] The parties agreed at the outset of the hearings into these matters that I was properly  
appointed and had jurisdiction to determine all three grievances submitted.  
Overview of Conclusions  
[20] On behalf of the Company, which acknowledged it had the burden to prove just cause for  
disciplining and discharging the Grievor, I heard testimony from Ms. Debbie Leclerc, who as a  
Manager of Business Client Experience” or “BCX Care” was the Grievor’s immediate  
supervisor in the fall of 2012, Mr. Ronnie Olsen, who as a Manager of Business Client Care”  
became one of the Grievor’s supervisors in the late fall and winter of 2012 2013, Ms. Diane  
Bargen, a Registered General Nurse (and former Registered Psychiatric Nurse who allowed that  
registration to lapse in 2002) working as a “Case Consultant” for the Company’s “Health  
Services” (referred to as “TELUS Health”) based in Burnaby, British Columbia, Ms. Jenny  
Reynolds who identified herself as “a Manager in Business and Corporate Departmentsbut at  
the relevant time was an acting manager, Mr. Vince Marasco, who was a Manager, BCX Care –  
Business Client Experienceand Mr. Cory Wain, who as the Company’s “Director of  
Information Servicestestified in reply about a technical issue that arose in the evidence.  
[21] The Grievor was the only witness called by the Union, who began her testimony before  
me on June 10, 2015. Her examination-in-chief took approximately one-half of a hearing day to  
complete; following which she was extensively cross-examined during the next four and one-half  
hearing days that stretched over a period of 11 months to May 10, 2016.  
[22] Within that interval I issued a Preliminary Award dealing with the Company’s mid-  
hearing demand for the production of the Grievor’s cellphone telephone records that I allowed,  
reported in Re Telus Inc. and TWU (Baker) (2016), 269 L.A.C. (4th) 400 (Can. Arb.) (Luborsky),  
where I also made the following observations about assessing the Grievor’s credibility to that  
date at paras. 41 and 42:  
¶ 41  
After some three and one-half days of cross-examination at the hands of skillful counsel,  
one’s arguable perception of the Grievor at this point might be of a person who is obviously tense,  
confused at times, and who has often been visibly distraught. At least one of the stated purposes  
Page 11 of 196  
of the Company’s demand for the production of the Grievor’s cellphone telephone records is to  
challenge the veracity of the Grievor’s testimony on matters that I have concluded are not  
collateral, but rather within the broad factual matrix or at least surrounding circumstances of the  
case before me. However, in assessing credibility to the extent it may be relevant to the  
issues in dispute, whether any deficiencies in the Grievor’s testimony are reflective of her  
general lack of sincerity in the sense of a deliberate attempt to mislead, which is what the  
Company apparently seeks to establish in part by its production demand herein, or reveals  
the discordant workings of an emotionally troubled mind that becomes exacerbated by  
various levels of stress now arguably on full display after several days of comprehensive,  
exacting and at times relentless cross-examination, which may be consistent with the  
Union’s apparent theory of the Grievor’s case, has yet to be determined.  
¶ 42  
That determination must obviously await the parties’ submissions in the fullness of time,  
when all of the evidence is finally before me.  
[Emphasis added]  
[23] While the Grievor’s cross-examination was certainly comprehensive, exacting and long,  
it was illuminating on the issue flagged in the foregoing excerpt of my Preliminary Award. By  
that point it was apparent that the overarching theory of the Company’s case was that the Grievor  
demonstrated she was a dishonest employee, who the Company described as “calculating and  
strategic”. The Company asserted that the Grievor acted in deliberate disregard of Company  
policies and reasonable expectations, whose claim of illness to the point of being incapable of  
attending work when instructed to do so could not be believed but rather was more consistent  
with an individual attempting to “flee” or “escape” the disciplinary consequences of her past  
misconduct. The Company stated I could give no weight to the Grievor’s testimony that was  
subject to serious credibility deficiencies, and thus it submitted it had just cause to terminate the  
Grievor’s employment in all of the circumstances of this case.  
[24] The Union’s broad theory of its case was that the Grievor had been a long-term employee  
with increasing responsibilities and a clear disciplinary record when she began exhibiting  
physical and then emotional difficulties amounting to a disability that snowballed and eventually  
culminated in her inability to attend work for medical reasons as substantiated by her physicians.  
The Union accordingly presented the Grievor as a person who had become deeply troubled and  
was subject to confusion, particularly where the Company’s instructions were unclear and its  
treatment of the Grievor unjust, that the Union claimed had occurred in this case. And to the  
extent the Grievor exhibited such confusion in actions during her employment or in her  
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testimony before me, they were more consistent with and confirmatory of her general troubled or  
ill state of mind as a result of her ongoing mistreatment and reactive disability than a deliberate  
attempt to mislead the Company or me, which did not constitute just cause to terminate the  
Grievor’s employment while in a demonstrably vulnerable state.  
[25] This was one of those rare cases in which the Grievor’s exhaustive cross-examination by  
the Company, although at times excruciating, nevertheless assisted me in recognizing and  
accepting the Union’s submissions that the Grievor was exhibiting signs of a deeply troubled  
individual during her employment (and continuing afterwards) with ongoing physical and  
emotional disabilities consistent with her physiciansmedical certificates, whose actions and  
testimony before me were more reflective of an employee who did not intend to mislead or to be  
dishonest with either the Company or before me, particularly where I also found that much of the  
Grievor’s confusion was contributed to by the Company.  
[26] While the factual circumstances said to support the issuance discipline are intertwined,  
for analytical purposes it is convenient to divide the continuum of the many events leading to  
each instance of the Company’s discipline of the Grievor and the grievances from the Union that  
followed into three temporal periods that are referred to hereunder as: Period 1being the  
events leading to the Grievor’s five-day disciplinary suspension and the Union’s Grievance No.  
1; Period 2” leading to the Company’s March 11, 2013 “second dismissal” and the Union’s  
Grievance No. 3 (which was issued out of temporal order); and Period 3” corresponding to the  
events largely based on extensive medical documentation filed in this case that chronicle the  
Grievor’s physical and mental health from November 28, 2012 leading to the Grievor’s “first  
dismissalof January 11, 2013 which was disputed by the Union’s Grievance No. 2.  
[27] Thus as indicated by my Decision dated November 1, 2016, for the reasons set out below  
on all of the evidence and submissions before me, I ultimately came to the conclusion that in  
connection with Grievance No. 1, the Grievor was displaying physical and likely developing  
mental health problems during Period 1 of the narrative in this case leading to her first discipline,  
the five-day suspension without pay. Although I found that many of the Company’s allegations  
of misconduct during this timeframe were not proven or could not be relied upon for various  
reasons described below, the one area of misconduct that was shown on the evidence to have  
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occurred on a balance of probabilities standard, were incidents of “call avoidance” that  
notwithstanding the Company’s inability to prove the other claims of inappropriate behavior in  
Ms. Leclerc’s letter of November 12, 2012, I concluded was sufficient to justify discipline at the  
level of sanction imposed on that occasion. This was the case even though it was also apparent  
on the evidence that the Grievor was showing the beginnings of physical and/or mental disability  
that she hadn’t clearly alerted the Company to, which the Company might have otherwise had  
the obligation to consider in modifying its response and offering reasonable accommodations.  
Nor could I find sufficient mitigating circumstances justifying the reduction in the quantum of  
discipline issued in that instance, even though I determined the quantum to be at the high end of  
an appropriate proportional response.  
[28] However the evidence supports the conclusion that the Grievor’s physical and developing  
mental distress was continuing, and that her disability was exacerbated during the “Period 2”  
events commencing on or about Tuesday, November 13 (which was during her five-day  
suspension) to Tuesday, November 27, 2012, which I also found that the Company contributed  
significantly to in ways described below and was too ready to jump to the worst conclusions  
about the Grievor’s motives and behavior without justification. On the evidence I concluded that  
the Grievor did not violate the collective agreement during this timeframe, and that any mistakes  
by the Grievor were mitigated by the Company’s contribution to the understandable confusion in  
her mind. But if the Company had grounds to discipline the Grievor for her actions during this  
period, which I would have assessed at the lowest in the range of acceptable sanctions, it chose  
not to exercise the right before discharging the Grievor for other reasons on January 11, 2013.  
Thus there is a valid argument that the Company’s attempt to assert separate alleged cause to  
terminate the Grievor’s employment two months later in its March 11, 2013 letter for events that  
the Company was aware of prior to terminating her on other grounds, constituted an improper  
attempt to expand or change its reasons for termination, rendering any legitimate discipline for  
proven misconduct during that period ineffective. Even if the Company had just cause to  
discipline the Grievor for any of the events of Period 2 from November 13 to 27, 2012, I found  
that discharge was not a proportionate response.  
[29] During Period 3 of the relevant events from November 28, 2012 to the Grievor’s first  
dismissal on January 11, 2013, I concluded on the evidence that was particularly drawn from the  
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Grievor’s extensive cross-examination and the medical documentation filed in these proceedings  
by the Company, which was also in the possession of and thus known to the Company before it  
made its decision to dismiss the Grievor, that the Grievor was either legitimately ill or certainly  
believed she was as supported by her physiciansreports and incapable of attending work, which  
rendered the Company’s actions in terminating her employment for alleged “refusal or neglect to  
return to work” as unjust in all of the circumstances of this case.  
[30] For reasons that I will also explain below, I could only give limited weight to the  
opinions of the Company’s Case Consultant from TELUS Health, Ms. Diane Bargen, whose  
purported independence in evaluating the medical documentation provided by the Grievor’s  
physicians to support the Grievor’s ongoing absence as a person who was “totally disabled” was  
undermined by contacts from the Grievor’s new supervisor, Mr. Olsen, at the beginning of the  
Grievor’s appeal for short term disability (“STD”) benefits. Mr. Olsen told her that the Grievor’s  
reported medical problems were really improper attempts to avoid her termination that she knew  
was coming, which the evidence showed had tainted the reasonable assessment of her claim by  
TELUS Health from the outset. The revelations from Ms. Bargen’s cross-examination  
(doubtlessly unintended by the Company), were among the key considerations in my decision to  
allow the Union’s Grievance No. 2.  
Overview of the Organization of these Reasons  
[31] To appreciate the reasons for my Decision on the grievances before me, it is necessary to  
go through the evidence of the events leading to my factual findings during each of the three  
temporal Periods itemized above in some detail. As the parties could see throughout their  
presentation of this case, in accordance with my usual practice I was typing a detailed transcript  
of the testimony and submissions (although not always verbatim) that by the end had  
mushroomed to over 500 pages in length. The documentation supporting the transcript and the  
extensive authorities later relied upon by the parties in argument, increased that size three-fold.  
[32] In order to marshal this considerable volume of material, I asked the parties to provide  
me with a point-form timeline of what they regarded to be the key events and documents as  
revealed by the evidence that I could then follow as a guide in dealing with the evidentiary  
disputes and issues submitted to me for determination in this case. In due course I received an  
Page 15 of 196  
outline from the Company listing 76 key factual events (that were cross-referenced to the  
essential documentation and oral testimony), and one from the Union listing 228 key events and  
documents. Thus in focusing on what the parties themselves considered to be the most important  
factual assertions and supporting documentation, I substantially adopted the Company’s timeline  
as supplemented by the Union’s contribution, which overlapped with the Company’s list in  
providing more detail that I incorporated as appropriate. Also, in arriving at my factual findings  
concerning each of these key events, I have explained my assessment of the evidence and the  
weight, if any, that I could give to it in arriving at my findings of fact to the extent possible as I  
recount the evidence surrounding each of these events, rather than deferring that explanation to  
the end of these lengthy Reasons when I consider the parties’ submissions in detail. In so doing I  
had the advantage of considering the specific evidence under consideration in the context of all  
of the evidence that was presented to me that may not have been apparent until I had heard all of  
the evidence and considered the parties’ submissions in this case.  
[33] For the most part, the events presented to me were well-documented that is a window  
through which the relevant facts may be recounted; although there was a hearsay character to a  
number of the assertions in some of this documentation that while admissible, became an factor  
in my later evaluation of the weight that I could give to certain allegations of fact that the  
Company relied upon to support the discipline. Moreover, all of the medical reports relied upon  
by the Grievor to substantiate her claims of illness (primarily during Period 3) were submitted  
into evidence by the Company from the Grievor’s records on file with TELUS Health with the  
Grievor’s (and the Union’s) consent.  
[34] These medical notes and opinions provided by the Grievor’s physicians were accepted  
into evidence for the truth of the information reported therein by the Grievor’s physicians, on  
which the Grievor was exhaustively cross-examined. It was never suggested that the medical  
documentation was other than what it purported to be; namely, the professional opinions of the  
Grievor’s physicians based on their consultations with and examinations of the Grievor at the  
time that the relevant events in the Grievor’s employment were unfolding. Nor was there any  
demand made by the Company that the Grievor’s physicians be required to testify in order to  
prove their medical observations and opinions as reflected in their reports. Rather, the Company  
disputed the sufficiency of this medical documentation to support the Grievor’s claims of  
Page 16 of 196  
underlying “total disability” justifying her absence from work (primarily during Period 3),  
arguing that they were insufficient for the Grievor to satisfy her onus to prove that she had a  
disability at all, amid the Company’s charges of improper “doctor shopping” for the medical  
opinions she wanted.  
[35] Also, I considered the Company’s general policy in responding to what it has referred to  
as “gaps” in performance of employees as part of the backdrop that has relevance to all three  
temporal periods under consideration, which provided me with an organizational perspective on  
which to view the expectations of the parties. In that regard the Company filed a document dated  
October 29, 2006 entitled, “Responses to Performance Improvement Gaps”, which is not  
disputed to be the Company’s “guideline” to the way it is expected to handle incidences of  
culpable misconduct, non-performance and absenteeism in the workplace. It constitutes a form  
of notice to employees and the Union of the Company’s practice in administering discipline in  
such matters through a progressive approach, while reserving the Company’s right to skip or add  
to the sequence of performance or discipline administration as circumstances dictate. It clearly  
makes a distinction between “culpable” and “non-culpable” performance issues requiring  
different corrective approaches, which as circumstances would later show the Company didn’t  
follow in its actions towards the Grievor.  
[36] In the normal course, the Company’s policy in the case of conduct deemed to be  
“culpable”, is to follow progressive discipline beginning at what it calls, “Step 1” which is a  
“Meeting of Concern, Coaching and Counselling”, all of which is acknowledged not to be  
disciplinary in nature, but rather is intended to alert the employee to the Company’s requirements  
with assistance in meeting those expectations. As a non-disciplinary meeting the parties also  
acknowledged that the specific criticisms about the employee’s performance raised in such  
meetings was not to be relied upon later as independent grounds supporting future discipline.  
The Company’s policy document goes on to announce a standard progressive disciplinary  
response in the event that the Meeting of Concern does not achieve the desired results, beginning  
at “Step 2” with a “Written Warning”, at “Step 3” with a “1st Suspension”, “Step 4” with a “2nd  
Suspension” that is finally dealt with by “Dismissal” where the required improvement in  
performance or conduct has not been accomplished, which is categorized as “Step 5” in the  
Company’s progressive disciplinary regime. Similar steps are documented by the Company in  
Page 17 of 196  
its policy for non-performance issues determined to be “non-culpable”, in circumstances where  
the employee is “Not Performing to Standard” and for “Absenteeism”, based on the issuance of  
escalating “Letters of Concern” to the employee that, if not satisfactorily addressed, may result in  
the non-culpable dismissal of the employee for inability to perform to the expected standards.  
And if an employee’s attendance fails to meet a reasonable expectation, dismissal may follow  
under the Company’s policy where an initial Meeting of Concernand four subsequent “Letters  
of Concern” have not resolved the matter, after the Company considers (and applies where  
appropriate) measures to reasonably accommodate any disabilities revealed by the  
[37] On this latter point, the Company’s policy expressly states that, “If the cause of the  
absenteeism is due to a disability, TELUS will have to meet the duty to accommodate test prior  
to proceeding to dismissal” and also that, “The search for a suitable position (to accommodate  
the employee) may require a period of time.” Although the Company’s document also states that  
(as of 2006) its “Absenteeism Program is currently being developed”, any development in that  
regard was not identified in the evidence.  
[38] The Union’s eventual submission before me was that the Company failed to follow its  
own published policies in handling the Grievor’s alleged non-performance, culpable misconduct  
and absenteeism by the Company’s inexplicable “rush to judgement” of such a long-service  
employee in this case, by supervisors who had barely worked with her before. I ultimately  
concluded that the Union was substantially correct in that assessment.  
Period 1: June 13, 2012 November 12, 2012  
[39] My findings of fact concerning the events during this first temporal period are derived  
primarily from the testimony of Ms. Leclerc and Mr. Olsen, with support from Ms. Reynolds,  
Mr. Marasco and Mr. Wain for the Company, as documented by a cache of e-mails, memoranda  
and reports, and from the Grievor’s explanations at the time the events were unfolding and as  
offered in her testimony. Those findings may be summarized as follows.  
[40] Ms. Leclerc was a manager in two periods during 2012 from the beginning of January to  
the last week of March and then from July 1 to November 26 with spotty attendance in her last  
Page 18 of 196  
two weeks before she was off a second time until June 4, 2013 (which was after the Grievor had  
been dismissed). She was responsible for front-line Corporate Support Agents (or “CSAs”)  
handling service calls for large corporate clients identified as multimillion dollar companies,  
government agencies and health care systems, which she characterized as among “the most  
valuable that TELUS has and we have to keep them with us.” In describing the importance of  
this clientele (referred to as “platinum accounts”), Ms. Leclerc emphasized that, “At any time  
there are competitors that want to take that business, so it is imperative that our level of service is  
impeccable”. Providing exemplary customer service for these accounts is the expectation and  
goal of the Company.  
[41] The Grievor was one of those CSAs who was first assigned to Ms. Leclerc’s “Team” in  
May of 2012. However, since Ms. Leclerc was absent from work at the time until July 1, 2012,  
the Grievor initially reported to Ms. Jenny Reynolds who was the “acting team manager”,  
although she was also a member of the Union’s bargaining unit. Thus the evidence shows that  
Ms. Leclerc’s contact with the Grievor was limited to the four and one-half months from July 1  
until her discipline and events immediately following November 12, 2012 over the Grievor’s  
some 14 years of service to the Company, and even then there was little face-to-face contact  
between them. That is because the Grievor was one of only nine “At Home Agents” (hereinafter  
“AHA”) who were considered sufficiently reliable and competent to be permitted to work from  
their own homes with minimal supervision instead of working out of the Company’s  
Scarborough call centre with the remainder of Ms. Leclerc’s employees. These are regarded “the  
best of the best” or “elite” employees, and by that time the Grievor had been an At Home Agent  
for six years.  
[42] While I was provided with much information on how the Company connects the AHAs to  
its call centre operations (requiring that I digest a great amount of cyber-electronic terminology  
and what was loosely referred to as “TELUS-Speak”), it is sufficient to note that the AHA’s  
home working area is automatically connected to the call centre through appropriate electronic  
and computer equipment supplied by the Company in a manner making it virtually  
indistinguishable from a physical desk within the call centre itself. For purposes of this narrative  
I have avoided using the technical jargon and TELUS-Speak extensively pressed upon me except  
in a limited number of instances.  
Page 19 of 196  
[43] Consequently, a supervisor located in the Company’s Scarborough office can listen in  
real time to the AHA’s telephone conversations with clients and watch exactly what the AHA is  
seeing and doing on the computer screen (although apparently not in real time but rather via a  
“screen shot” record utilizing a computer software program known as “e-QUALITY) at the  
AHA’s location in handling a customer’s call. The Company provides all of the necessary  
computer hardware, software and connections to the AHA’s office through what is referred to as  
a “Virtual Private Network” or “VPN” line that is intended to allow the AHA to interact  
seamlessly with the call centre. Telephone calls are routed to the AHA’s location in the same  
way that such calls are distributed to CSAs working out of the Scarborough office. If the  
supervisor wishes to interact directly with the AHA, even while the AHA is dealing with an  
inquiry, there is a separate communication system (referred to as “MOC” which the Grievor  
called, “Communicator”) that electronically substitutes for physically standing beside and  
listening to the Corporate Support Agent while speaking to the customer.  
[44] As with all telephone agents (generally referred to as “Customer Service Agents”)  
working in the call centre, the AHAsactivities are contemporaneously recorded on a  
computerized log that documents every incoming and outgoing call, dropped call, hang-up, etc.,  
as well as tracking when the AHA is doing follow-up office work associated with the call, has  
technical problems requiring the cessation of service for a period of time or while taking a break  
for personal reasons. The AHAs typically wear a Company supplied headset and when a call  
comes in they will hear a “beep” in their ear that is also associated with an audible ring and  
flashing light on a display monitor (known as a “Plantronics” dial pad or “box” connected to the  
headset), and the customer’s account which is apparently identified through the telephone  
number immediately pops up on the AHA’s computer screen through a software facility known  
as “COSMO” that was described as the “application used to answer calls”. There are a number  
of additional software applications referred to in the testimony of witnesses and the  
documentation that were reviewed with me in some detail (including one called SMART  
DESKTOP) that are unnecessary to describe for purposes of the present narrative. It is sufficient  
to note that through COSMO and other application software the AHA has the relevant account  
information required to immediately address the customer’s inquiry or concern.  
Page 20 of 196  
[45] Like all Customer Service Agents generally, the AHA is expected to answer the call  
promptly (with a five second goal), and whenever a call is finished or dropped for different  
reasons (including a hang-up) and all work associated with that call has been completed (which  
typically involves making a notation to the customer’s account file of the outcome of the call),  
the AHA is marked as available for receiving the next telephone call from a customer and placed  
at the bottom of the electronic queue for receiving such calls, which can result in the Customer  
Service Agent sitting beside the telephone and computer screen for a period depending on call  
volumes at the time. Having a record of the AHA’s activities enables the Company to compile  
statistics on the employee’s performance (in terms of number of calls answered, “dead air calls”,  
time taken to deal with calls and supporting record-keeping work, personal time off, etc., referred  
to as Key Performance Indicators or “KPI”), which is judged against the standards established by  
the Company that are reviewed with the employee on a regular basis. In this regard Ms. Leclerc  
testified the Company’s productivity target for the CSAs was 32 calls per day.  
[46] Ms. Leclerc’s evidence is that of all of the Corporate Support Agents she managed during  
2012, the Grievor was the only one she ever received complaints about, which Ms. Leclerc  
responded to by providing additional coaching to the Grievor, although the evidence before me  
of such actual coaching was limited. This was in addition to the normal two coaching sessions  
per month and telephone monitoring provided by the manager for all agents on a regular basis,  
which Ms. Leclerc acknowledged are non-disciplinary.  
[47] Over the Union’s objection I permitted Ms. Leclerc to elaborate, as part of the general  
background to the present dispute based on her experience with the Grievor prior to the events  
leading to the Grievor’s five-day suspension without pay, on why Ms. Leclerc had developed “a  
poor opinion of the level of customer service” that the Grievor was providing which included,  
she claimed, “many instances of complaints”.  
[48] In explaining further, Ms. Leclerc offered her assessment that the Grievor, “had a very  
laid back approach when dealing on the phones she seemed as though she was uncaring when  
dealing with actual clients as opposed to a dealer (who may be more accepting of the internal  
jargon).” Ms. Leclerc also expressed the view that, “The way (the Grievor) conducted herself on  
the phone made (the clients) fell stupid” and consequently Ms. Leclerc said she noted, “There  
Page 21 of 196  
was frustration on the call that sometimes arose between (the Grievor) and clients”, prompting  
Ms. Leclerc to coach the Grievor “about (her) tone of voice”. It was not clear from the evidence  
whether Ms. Leclerc had come to these conclusions by actually listening to the Grievor, or on the  
basis of the reports of others considered below.  
[49] Notwithstanding these concerns, as well as the claimed importance of the Grievor’s role  
in dealing with what the Company considered to be its “platinum” clientele for which Ms.  
Leclerc testified “it is imperative that our level of service is impeccable”, the Grievor was not  
disciplined at that time for misconduct arising out of Ms. Leclerc’s stated observations (which on  
the evidence presented to me could only have occurred after July 1, 2012 when Ms. Leclerc  
returned from leave).  
[50] Moreover, no steps were taken by the Company to remove the Grievor’s privilege of  
working from her home under the AHA program as a trusted employee who required minimal  
supervision prior to the Grievor’s suspension on November 12, 2012, which the parties agreed  
the Company had the right to do at any time in the reasonable exercise of its managerial  
June 26, 2012 Meeting of Concern  
[51] The first substantial notation of any complaint regarding the Grievor’s performance is an  
e-mail memorandum dated June 13, 2012 from Mr. Eric Mantha, who is identified on the e-mail  
as a “Client Service Manager”, which is addressed to Ms. Leclerc. Ms. Leclerc’s evidence is that  
she was on leave from the Company from the end of March 2012 until July 1, and Ms. Reynolds  
testified that she severed as acting manager for Ms. Leclerc from May 7 to July 1 of that year and  
then again for the second extended absence by Ms. Leclerc starting November 26, 2012.  
[52] Thus Ms. Reynolds, who was still in the bargaining unit at the time and didn’t become a  
member of management until June of 2014, was nevertheless directly responsible for the  
Grievor’s day-to-day supervision on June 13, 2012. Ms. Leclerc testified that Ms. Reynolds  
eventually received Mr. Mantha’s e-mail memorandum and provided it to Ms. Leclerc when the  
latter returned to work in July.  
Page 22 of 196  
[53] Over the Union’s objection, I permitted the Company to admit this memorandum into  
evidence for the limited purpose of setting the background circumstances in the same way that  
Ms. Leclerc’s earlier testimony of alleged complaints respecting the Grievor’s conduct prior to  
Ms. Leclerc’s second leave in 2012 had been admitted into evidence. I did not accept this  
document as proof of the allegations therein in the absence of testimony from Mr. Mantha to the  
extent it might have been relevant to the grievances before me (having noted that the information  
in Mr. Mantha’s memorandum was partially based on certain hearsay allegations of fact by the  
customer and thus in Ms. Leclerc’s hand constituted “double hearsay”). And the Company never  
provided me with the direct evidence to prove Mr. Mantha’s assertions in that e-mail, while as  
indicated later in this narrative it apparently relied upon those allegations of the Grievor’s  
misconduct as part of the grounds supporting the five-day suspension issued to the Grievor on  
November 12, 2012.  
[54] The e-mail from Mr. Mantha complains about the Grievor’s alleged mistreatment of a  
platinum account customer on June 12, 2012 and the Grievor’s subsequent conversation with the  
customer and Mr. Mantha (along with another TELUS representative identified as “Mike”) that  
Mr. Mantha claimed was, “arrogant, rude and uncooperative” and which he deemed to be  
“totally unacceptable”. It appears from Mr. Mantha’s memorandum that a dispute arose during  
the call when the Grievor asked Mr. Mantha and the other TELUS employee on the line to  
identify themselves and provide their employee numbers which they did, but when asked to do  
the same by Mr. Mantha the Grievor refused to reveal her name and TELUS number. Mr.  
Mantha’s memorandum also states that he contacted both the customer representative (who was  
on the call) and Mike the next morning, “To ensure I was not the only one having a bad  
perception of (the Grievor)” who “both confirmed they had the same perception”.  
[55] Responding to that alleged incident, Ms. Reynolds convened what the Company later  
characterized as its “First Meeting of Concernwith the Grievor on June 26, 2012, in accordance  
with its published guidelines in addressing such issues. Ms. Reynolds documented this meeting  
in an e-mail record she sent to herself that day but which the Exhibit submitted into evidence by  
the Company indicates she didn’t forward to Ms. Leclerc until November 2, 2012, nor was there  
any evidence that a record of this Meeting of Concern was provided to the Grievor who I  
consequently found didn’t receive it. Mr. Mantha’s allegations were discussed with the Grievor,  
Page 23 of 196  
who testified that she wasn’t given any documentation concerning the matter in advance and had  
little recollection except to remember her discussion with Ms. Reynolds that was not a face-to-  
face meeting but rather conducted over the telephone.  
[56] Ms. Reynoldsnotes confirmed by her testimony indicate an apparent dispute between  
the Grievor and Mr. Mantha on their call who the Grievor is reported to have described in those  
notes as “irritating her”, with the Grievor expressing security concerns (apparently over  
disclosing her name on the call) and the view that she did nothing wrong. Ms. Reynoldsnotes  
also record that she advised the Grievor to please provide (her TELUS identification number) to  
internal employee if they ever ask it” (sic) and that if the Grievor didn’t feel comfortable with  
something, to “keep (her management) in the loop so that if a complaint comes down the pipe we  
understand what is going on.” Then Ms. Reynoldsnotes indicate she told the Grievor that, “If  
someone asks (you) for (your TELUS number) or some type of information, please tell them to  
speak to your support person” and that the Meeting of Concern ended with Ms. Reynolds asking  
for and receiving the Grievor’s agreement that going forward” she would give her “support  
person a heads up if there is an issue”. (I was told that a “support person” is the TELUS-Speak  
terminology for an employee’s direct supervisor).  
[57] I found on the foregoing evidence that there was nothing about this specific incident or  
subsequent Meeting of Concern placing the Grievor on notice that she had done anything wrong  
and explicitly warning her of the possibility of discipline for repeating such conduct in the future.  
Rather, the message provided to the Grievor was confusing in that it suggested both that she  
should disclose her TELUS identification number to an internal TELUS employee when asked  
(without considering there was an outside customer on the call under review that might cause  
legitimate security concerns), while at the same time advising the Grievor that in the future she  
should keep her management “in the loop” and instruct people asking for her TELUS  
identification number to contact her support person. The evidence would later show that there  
was much confusion in the messages and in the way that management dealt with the Grievor  
over the ensuring four months, most if not all of it being of its own making.  
Evidence of Developing Medical Issues  
Page 24 of 196  
In the period after June 26 but before what the Company has characterized in its  
timeline as the “Second Meeting of Concern” with the Grievor convened on October 5, 2012, the  
evidence before me also shows there were things beginning to happen in the Grievor’s life that  
the Union points to as part of its “key events timeline” not only having a material impact on the  
Grievor’s performance and behavior during Period 1, but which later had a cascading effect on  
the circumstances leading to the Grievor’s “first dismissal” on January 11, 2013 by the end of  
temporal Period 3 in the narrative surrounding the three grievances in this case.  
[59] While working as an AHA the Grievor was in regular e-mail contact with Ms. Leclerc  
concerning her day-to-day activities (that was directly connected to the TELUS call centre  
through the VPN at the Grievor’s home), and those e-mail records indicate that the Grievor  
advised Ms. Leclerc of her need to be absent from work to attend medical appointments on  
September 14 and September 24, 2012.  
[60] This is substantiated by a medical record (under the title, “Patient Encounter History”)  
prepared by the Grievor’s family doctor, Aliya Adil, who reports that the Grievor was consulted  
on matters related to the results of a recent colposcopy examination, which is a procedure for the  
investigation of cervical cancer. The Grievor testified that this examination was prompted by the  
discovery of abnormal cells that need to be regularly checked for the risk of cancer; which was  
naturally concerning to a relatively young woman contemplating the possibility of having  
children. (As discussed below, she later had surgery for the removal of three large uterine  
fibroids approximately four months after her first dismissal).  
[61] The medical record also indicates the Grievor was complaining about “a bit of urine  
incontinence if coughs”, which the Grievor testified in the course of cross-examination was  
becoming an issue requiring her to be absent from her desk more often than usual for personal  
hygiene breaks, and was generally upsetting as a developing problem before the events at work  
precipitating what she claimed to be a major stress reaction, described below. The medical  
documentation submitted into evidence by the Company indicates that the next time the Grievor  
saw Dr. Adil was on November 15, 2012, which was during her five-day disciplinary suspension,  
and by then was complaining to Dr. Adil that she was urinating two to three times per hour.  
Page 25 of 196  
[62] I was cognizant of the need to be careful when scrutinizing such medical documentation,  
since outside of the reports of the objective results of clinical procedures, to the extent there may  
be a legitimate presumption that the patient is being truthful in self-reporting symptoms to the  
physician, which is then relied upon by the physician in diagnosis and treatment, that  
presumption is a rebuttable one that must only be accepted with care. This is particularly the  
case when claims of stress related illness are asserted, where there may be a tendency to question  
the reliability if not veracity of such claims in the context of an ongoing employment dispute.  
The Company expended a great amount of its cross-examination of the Grievor challenging the  
medical problems she reported to her physicians (as documented by their records) and alleging  
“doctor shopping” in further efforts to discredit those reports, which in my opinion were not only  
unsuccessful but tended to support the view of the Grievor as a very confused and troubled  
individual, that I will address later in these Reasons.  
[63] The significance of the September 24, 2012 medical report at this juncture is that it shows  
the Grievor’s later medical claims did not suddenly arise, but rather the emergence of problems  
related to what the Grievor testified was increasingly requiring her to be absent from her desk  
before any discipline was issued, sets the framework for the growing anxiety and distress that  
was in harmony with the Grievor’s descriptions of her medical problems that followed in the  
course of her lengthy cross-examination. And it is also consistent with the explosion of the  
reported symptoms developing as a result of the extreme stress she claims to have later been  
experiencing in the workplace, largely as a consequence of the confusing and inconsistent  
actions of management, described below.  
[64] In short, the medical documentation to this point as elaborated upon by the Grievor,  
discloses an individual who was, as of the end of September of 2012, already exhibiting some  
fragility in at least her physical condition and a certain confusion about and preoccupation with  
her developing medical problems, as corroborated by that documentation. It also forms the  
backdrop for assessing the veracity of the Grievor’s later statements to Ms. Leclerc, described  
below, and the Grievor’s actions in connection with Ms. Leclerc’s concern that by the end of  
October the Grievor seemed to be taking an inordinate amount of personal time off during the  
workday that the Grievor indicated was related to health issues requiring frequent bathroom  
Page 26 of 196  
breaks, as later borne out by the medical documentation in which she reported that she needed to  
urinate two to three times per hour.  
October 5, 2012 Second Meeting of Concern  
[65] In the sequence of key events, the Company then points to what it characterizes as the  
“Second Meeting of Concern” with the Grievor more than three months after the First, that was  
documented in an e-mail from Ms. Leclerc to the Grievor dated October 12, 2012 confirming the  
details of their discussion on the matter that occurred the week before on October 5, 2012, which  
both Ms. Leclerc and the Grievor testified about. There is no suggestion that in the lead-up to  
their October 5 meeting that the Company had raised any criticisms of the Grievor’s quality or  
quantity of work during any of the regular bi-monthly meetings between Ms. Leclerc and the  
Grievor to review her “KPI numbers” as tracked by the Company’s activity log. On Ms.  
Leclerc’s testimony there should have been at least six such meetings in that timeframe.  
[66] However, Ms. Leclerc testified she received a complaint on October 4, 2012 regarding  
the Grievor’s interaction with a representative of one of the Company’s corporate clients named  
Robert Wong. Mr. Wong asserted by e-mail that in dealing with the Grievor on a billing issue,  
he didn’t appreciate what he alleged to be the Grievor’s, “attitude in handling my call and her  
laughing at me a couple of times while I tried to understand Telus Air Card contract and what  
happens to those Air Card when they are placed on Vacation Discount when their contract ends”  
(sic). Ms. Leclerc confirmed in her testimony that she never spoke directly with Mr. Wong; nor  
was there any evidence to suggest that Ms. Leclerc listened to a recording of that alleged  
telephone conversation, if one existed. (On this latter point I was led to believe on the evidence  
that such recordings were frequently preserved).  
[67] When Ms. Leclerc forwarded the customer’s e-mail to the Grievor on October 4 asking  
for comment, the Grievor responded within 15 minutes by return e-mail that she vaguely  
remembered the calland was sure that she tried to help Mr. Wong but that, “there might have  
been an English barrier because I kept repeating myself. As well I believe he couldn’t give me  
the aircard details or pin on the acct so therefore told him I was limited on what I could discuss.  
He was not satisfied.  
Page 27 of 196  
[68] Ms. Leclerc testified that in reviewing her records she then discovered (apparently for the  
first time) that there was another e-mail complaint about the Grievor more than three months  
earlier on June 25, 2012 (received while Ms. Leclerc was on leave) that was written by a TELUS  
employee concerning the alleged conduct of the Grievor in transferring a customer call that this  
TELUS employee did not consider appropriate. The e-mail charged that, “This is not the first  
time Tracy tries to push calls our way for stuff we have nothing to do with, but she also literally  
lied about it!” There was no indication that the Grievor was given any opportunity to answer  
these allegations, or, again, that Ms. Leclerc ever listened to a recording of the call to satisfy  
herself of the legitimacy of the complaint, if one existed.  
[69] Ms. Leclerc consequently convened a “Meeting of Concern” on October 5, 2012 with the  
Grievor that Ms. Leclerc documented in the following e-mail addressed to the Grievor a week  
later on October 12, 2012:  
This email is to outline our discussion that took place on Friday Oct 5. I have received complaints  
from clients advising you were argumentative and negative during their interactions with you. I  
understand there are always two sides to every story; however, you now understand the  
importance of tone and position word choices and how they can impact your call flow. This email is  
to outline my expectations of you going forward and should these behaviours arise again, I will  
have no alternative but to move to disciplinary action.  
Be aware of your tone – that’s all the client has to go with when dealing with clients over the phone.  
Project a happy helpful tone of voice.  
Use positive word choices. Just because you can’t give the client what they are asking for doesn’t  
mean we can’t position it in a positive way so they understand why we’re saying no.  
Any further complaints with regards to your interactions with clients, may result in disciplinary  
action being taken. Please be aware of tone and word choices and let’s ensure you IVR survey  
results and internet quality scores reflect this.  
[70] There are three issues that I noted from this evidence that was relevant to my  
consideration of Grievance No. 1 challenging the Grievor’s five-day suspension without pay.  
[71] First, in the face of the Grievor’s denials of any wrongdoing, all of the assertions of fact  
underlying this Meeting of Concern (as with the previous one handled by Ms. Reynolds) where  
not accepted as proof of the allegations; but rather were allowed to establish the background  
context of the discussions between the Grievor and Ms. Leclerc at that time. To the extent the  
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Company later relied upon these alleged “customer complaints” as one of the grounds for issuing  
discipline to the Grievor, no direct evidence of such malfeasance was presented to me.  
[72] Second, the Meeting of Concern was non-disciplinary, and in preparing for the Meeting  
of Concern Ms. Leclerc reviewed her files to be in a position to discuss all reported instances of  
inappropriate conduct with the Grievor, with the express warning that, “Any further complaints  
with regards to (the Grievor’s) interaction with clients, may result in disciplinary action being  
taken”, indicating to the Grievor that she was in jeopardy for future alleged misconduct of this  
nature, but not at risk for being disciplined for the past alleged misconduct that was the subject of  
the Meeting of Concern.  
[73] To the extent the Company later, in its five-day suspension without pay to the Grievor  
dated November 12, 2012, appears to base the discipline in part on the past alleged “rudeness  
and unprofessional conduct”, any reliance on those past alleged events had already been spent as  
part of the Company’s published policy on the administration of culpable and non-culpable  
performance “gaps”, which I concluded the Company was not entitled to resurrect as separate  
incidents justifying discipline.  
[74] Lastly, as bad as Ms. Leclerc painted the Grievor’s tone and conduct with its highly  
valued platinum customers, there remained no suggestion at least until the Grievor’s five-day  
disciplinary suspension that it had lost confidence in the Grievor’s continuing ability to work in  
the privileged position as one of a handful of At Home Agents, which in my opinion undercuts  
the seriousness with which the Company professed to take the Grievor’s alleged “rude and  
unprofessional conduct” at the time, if not the veracity of those claims.  
Allegations of Continuing Rude and Unprofessional Conduct  
[75] The only evidence I received on the issue of alleged rude and unprofessional conduct”  
by the Grievor after the October 5, 2012 Meeting of Concern, which is the period for which the  
Grievor was on notice of potential disciplinary consequences of such conduct, arises out of  
another e-mail communication dated October 30 ,2012 under the heading, “Employee Mentoring  
System” from a TELUS employee to Ms. Leclerc concerning the Grievor on what was identified  
under the “subject” line as, “Rude behavior with a client”. The reporting TELUS employee  
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indicated he had “recently encountered a very angry and frustrated client” who was apparently  
raising a difficulty with retrieving data from her wireless device with a concern that all of the  
data on her device would be lost (which is a prospect that would be understandably upsetting). In  
the course of addressing the problem with the client, the reporting TELUS employee commented  
that the client said she asked to be transferred back to “Corp Billing as she wanted to officially  
complain about the last billing agent who was rude to her”, who was identified through the  
Company’s monitoring records as the Grievor. The TELUS writer of this e-mail then recounts  
what he claims the client told him of being, “almost in tears and very frustrated as she could not  
get a straight answer from (the) billing agent(emphasis added).  
[76] Ms. Leclerc did not confront the Grievor with these allegations at the time, but rather  
waited more than one week until the investigative meeting(as contemplated under the  
collective agreement) convened with the Grievor and her Union representative on November 8,  
2012 that will be described below, where in the course of telling the Grievor that Ms. Leclerc  
had, “listened to many calls where the conversations went sour because of word choices”, she  
stated: “And I’ve received many complaints where – one on October 30th where the client was  
in tears” (emphasis added). The Grievor denied that this was caused by her, stating further: I’d  
like to see that one because I have no idea what that’s about”. In the course of her discussion at  
the investigative meeting with the Grievor and her Union representative, Ms. Leclerc admitted  
that she “didn’t listen to the transaction” (which I infer from their reported discussion on the  
matter, was likely available for her review).  
[77] This was one of the incidents of “rude and unprofessional conduct” later relied upon by  
the Company in issuing the five-day suspension without pay in its November 12, 2012 letter of  
discipline and the only one that was after the meeting of October 5 that the Company identified  
as the “Second Meeting of Concern”. Aside from mischaracterizing the contents of the  
Employee Monitoring Service” e-mail by telling the Grievor that as a result of her actions the  
client “was in tears” when the term “almost in tears” was reported (and which is subject to a  
number of interpretations), I was asked to accept what amounted to double hearsay on a matter  
of some importance respecting the Grievor’s professionality, which in the face of the Grievor’s  
denials I could give little, if any, weight. That was particularly the case where the evidence also  
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indicated the potential availability of a recording of this encounter that the Company neither  
provided nor explained why it couldn’t.  
[78] But even more importantly, it was clear that Ms. Leclerc who hadn’t listened to the  
impugned interaction herself, was nevertheless quick to condemn the Grievor on the strength of  
what others had alleged and without taking into account the contextual circumstances and maybe  
the reasonableness of the client’s conduct at that time. Indeed, throughout Ms. Leclerc’s  
consideration of allegations of rude and unprofessional conduct by the Grievor, it is clear on the  
evidence that although critical of the Grievor’s “tone” and her “word choices”, she never  
testified that the actually heard (either at the time of the alleged misconduct or afterwards via  
recordings) the Grievor speaking rudely or unprofessionally to any customer, that she dealt with  
by issuing any discipline in accordance with the Company’s progressive disciplinary policy at  
the time to address a “gap” in the Grievor’s performance for “culpable” misconduct.  
[79] What both parties point to as the next event in the narrative occurs on October 31, 2012.  
Ms. Leclerc confirmed in cross-examination that the Company introduced a new method of  
“scoring” the performance of Customer Service Agents in October 2012 that Ms. Leclerc utilized  
in compiling what amounted to a performance appraisal on the Grievor that she forwarded to the  
Grievor on October 31. The form (referred to as a “QCE Evaluation”) indicates that based on  
Ms. Leclerc’s recent listening to the Grievor’s interaction with an unidentified client caller, her  
performance was considered insufficient because of her “very low, quiet, non-engaging voice”  
that further criticized her “tone” as “completely low and unengaged; as well as not showing  
appropriate “empathy” with the client’s situation, that when consolidated with other measures of  
performance resulted in an overall score of only 60%. (Given my earlier observation, the fact  
that Ms. Leclerc didn’t take this opportunity to refer to any past “rude and unprofessional  
conduct” at the same time, undermines the veracity of those claims, at least to October 31).  
[80] Ms. Leclerc conceded that this document was not intended to be disciplinary in nature,  
but rather identified areas for future coaching and that it set out expectations on the matters  
criticized for follow-up purposes. That it achieved some of this goal seems apparent from the  
Grievor’s response to the QCE Evaluation, where she constructively asks Ms. Leclerc about  
certain technical elements that Ms. Leclerc replies to with further direction on the matter of her  
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inquiry. However it did raise the question by Union counsel as to whether Ms. Leclerc found it  
odd that the Grievor, who had to that point been considered sufficiently trustworthy and  
competent to work as an At Home Agent for six years would suddenly have such difficulties,  
which Ms. Leclerc (not unreasonably) could not answer, although it was a fair observation.  
Subsequent Events Leading to the Disciplinary Suspension  
[81] The next day, November 1, 2012, the Grievor asked Ms. Leclerc to provide her with a  
“Practitioner’s Assessment Form” referred to as “PAF”. In cross-examination, Ms. Leclerc  
confirmed that she had an earlier undocumented conversation with the Grievor during October,  
where Ms. Leclerc asked the Grievor about what appeared to Ms. Leclerc to be an inordinate  
amount time away from work that the Grievor was taking during the day (which is marked on the  
electronic log as “PERSONO AUX” for “Personal Auxiliary Time”, and also referred to as  
personal AUX”). In response, the Grievor referred to medical issues requiring additional  
personal AUX, and was advised by Ms. Leclerc that employees who needed more time off “to go  
to the bathroom” should have their doctor fill out a PAF, that Ms. Leclerc acknowledged saying  
in her testimony. I took from Ms. Leclerc’s reference to ‘going to the bathroom’ as knowing  
about the general claim by the Grievor of a problem in that area, although at a very base and  
vague level of comprehension at that point. The Grievor testified she had also raised the matter  
of her need for additional bathroom breaks with Mr. Mark Plumber, who was a management peer  
of Ms. Leclerc’s (and apparently former supervisor of the Grievor), who suggested that she get a  
PAF to authorize more time off for that purpose, as well.  
[82] The Practitioner’s Assessment Form is signed by the TELUS employee (referred to as a  
“Team Member”) authorizing his or her physician to answer a series of detailed questions  
identifying the employee’s, “Medical Condition” under subheadings that include, “Diagnosis”,  
“If providing a psychological diagnosis please complete DMS IV”, and “Describe signs and  
symptoms of the illness/injury of the Team Member”, along with particulars of the employee’s  
“Treatment” and “Rehabilitation”.  
[83] The form is intended to elicit short-form answers to specific questions designed to assess  
the employee’s “eligibility for benefits”. In singing the form, the employee expressly authorizes  
“TELUS Health Services to contact the practitioner in writing for any additional relevant  
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information that they may require for this purpose.” It will assist the future discussion of the  
Grievor’s subsequent claim for disability benefits under the “Team TELUS Flex Benefits” plan,  
by setting out this authorization that must be signed by the Team Member, as follows.  
I authorize the Practitioner identified below to release information about me that is relevant for the  
purpose of considering my eligibility for benefits and to establish my fitness for work and/or level of  
disability. This form may be released to TELUS Health Services situated in any province of  
Canada. I also authorized TELUS Health Services to contact the practitioner in writing for any  
additional relevant information that they may require for this purpose, provided a copy of the  
information request is sent at the same time to myself. It is understood that health information  
received by TELUS Health Services department will be kept in strict confidence. These consents  
are valid for six months or until I return to full-time employment, whichever shall first occur, unless I  
revoke them in writing.  
[84] Ms. Leclerc’s reaction to the Grievor’s request for a PAF in her testimony was equivocal;  
at one point referring to it as “coincidental” to the events that were happening with the Grievor’s  
employment but at another point in cross-examination conceding that she regarded it with some  
“suspicion” at the time. If that was the case, no evidence for the basis of any suspicion was  
expressly presented by the Company.  
[85] On the same day that she requested the PAF, the Grievor also informed Ms. Leclerc on  
November 1, 2012 that the Grievor had applied for an internal job posting in another TELUS  
department for a position as a “Business Analyst II”. Ms. Leclerc regarded this, too, a  
coincidence” as related to the ongoing employment issues with the Grievor. However I took  
this as evidence consistent with the actions of an employee, before the subsequent events leading  
to the discipline issued in this case, attempting to remove herself from a situation of potential  
future conflict with her supervisor.  
[86] On November 7, 2012, in preparing for the upcoming November 8, 2012 investigative  
meeting described below, Ms. Leclerc testified that she noticed from the review of screen shots  
of the Grievor’s computer through the e-QUALITY program, that the Grievor had accessed her  
personal TELUS mobility account on one occasion. This, according to Ms. Leclerc, was strictly  
forbiddenand in violation of the Company’s Ethics Policy that employees know about through  
taking an on-line “Integrity Course”, which the Company’s records indicated the Grievor  
completed on September 27, 2012. Since Corporate Support Agents had the ability to provide  
account holders with generous discounts, give free features and change rate plans, Mr. Leclerc  
testified that “from the temptation alone it is frowned upon by the Company” and she asserted in  
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evidence it was the Company’s policy that, “under no circumstances can you access your own or  
family’s accounts”. In this case it is not suggested that other than accessing her account the  
Grievor in fact did anything to change the account.  
[87] When the Grievor was later confronted about this in the November 8, 2012 investigative  
meeting described below, and asked specifically what her understanding “of accessing  
Friends/Families or your own account was”, the Grievor responded that she “didn’t really know  
much about it”. While acknowledging that she did look at her own account on that occasion, she  
said she “didn’t change anything” on her account, and denied knowing about what Ms. Leclerc  
told her was the Company’s policy that such access was “a breach of security or ethics”. I  
concluded that this answer was entirely reasonable in the circumstances; although it is clear that  
Ms. Leclerc considered it “evasive”.  
[88] The Company’s “Ethics Policy” in effect as of February 2012 is a 33-page booklet that  
was entered into evidence, as was the on-line “Integrity in all Things” course that the Grievor  
completed on September 27, 2012, which is a 179-page document that employees access on-line  
(referred to as e-learning). When asked in cross-examination to point out the specific policy  
prohibiting an employee from looking at his or her own account, Ms. Leclerc couldn’t do so;  
although she indicated that there was a “case study” in the documents that clearly prohibited  
such conduct and that handling accounts for family or friends was also forbidden by the  
Company’s ethics. I was not shown the case study she referred to, nor was I given a copy of the  
specific policy (or page number in either of these documents) that expressly proscribed all  
contact for any purpose by an individual Customer Service Agent with his or her own account.  
[89] While there was reference in the Company’s Ethics Policy to prohibitions on employees  
self-dealing on matters for themselves or their friends and relatives under the heading, “Conflict  
of Interest” (on pages 27 – 32), which I carefully reviewed, it consists of six-pages of text  
(towards the end of a 33 paged document) on the general topic of conflict of interest that does  
not, in my assessment, express a clear rule to satisfy the test in Re KVP Co. and Lumber and  
Sawmill Workers’ Union, Loc. 2537 (1965), 16 L.A.C. 73 (Robinson), that affirms an employer’s  
right to unilaterally impose rules of conduct, provided they are: (1) not inconsistent with any  
collective agreement, (2) not unreasonable, (3) clear and unequivocal, (4) brought to the attention  
Page 34 of 196  
of the employee affected before acted on, (5) that warn the employee of the possible  
consequences of discharge from a breach of the rules, and (6) are consistently enforced. As I  
shall discuss later in these Reasons, in the absence of such clarity I could not find on the  
evidence before me that the Grievor knew or reasonably should have known about a Company  
rule ‘strictly forbidding’ such conduct at the time. And in any event, there was no allegation that  
the Grievor ever engaged in any form of “self-dealing” by merely viewing her own TELUS  
mobility account. This is not to suggest that the Company would not have legitimate concerns  
about a Customer Service Agent viewing his or her own account for the very reasons that Ms.  
Leclerc identified. But if the Company is going to discipline an employee for such conduct it has  
the onus to show a clear rule prohibiting such conduct that is consistently followed, which was  
not demonstrated on the evidence presented to me.  
[90] On November 2, 2012 the Grievor sent an e-mail to Ms. Leclerc alerting her to a problem  
related to her At Home system, in which the Grievor wrote that: “in COSMO I am getting two  
calls in at a time. So when I go into state after call work another call is waiting in my COSMO.  
Most of the time this ends up as a drop call.” As she explained in her testimony, the Grievor  
claimed she was experiencing a number of technical problems with her At Home office VPN  
connections and the laptop computer provided by the Company, and in this e-mail she alerted her  
manager to a problem that she believed was causing a high incidence of “dropped calls”.  
[91] Dropped calls occur when a telephone call waiting in the electronic queue isn’t there  
when the CSA answers (creating a situation of “dead air”), which Ms. Leclerc testified might  
happen on average once or twice per shift for a variety of reasons. In most instances of dropped  
calls the Corporate Support Agent doesn’t know if the customer is on the line, and so is  
instructed to wait several seconds while inviting an answer with a set script that is to be read  
before releasing the call (which is recorded on the electronic log as a gap in time).  
[92] In the responding e-mail from Ms. Leclerc, the Grievor was asked to “log out” and  
“reboot”, which the Grievor did and later reported that, “so far it looks okay! But just wanted to  
make sure you are aware of this!” This was the first record of a number of problems the Grievor  
would later claim she experienced with the systems in her At Home office. The Grievor testified  
that she brought a number of such concerns to Ms. Leclerc’s attention during this timeframe, and  
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may have sought assistance from the Company’s technical resources (described below) but  
received no response to her concerns.  
[93] Ms. Leclerc testified that the technical difficulties raised by the Grievor were not  
common, but she acknowledged they did happen from time to time and that there were ways to  
remedy these problems, such as shutting down and rebooting the system. However, Ms. Leclerc  
also testified that if rebooting didn’t work there was an internal TELUS service known as  
“Single Point of Contact” which was referred to as “SPOC” that was available to effect repairs or  
provide technical assistance where the system was operationally slow or when there was a  
problem with the “Virtual Private Network” or “VPN” line connection. Ms. Leclerc confirmed  
that when the VPN went down the At Home Agent was unable to receive any calls or e-mails  
which typically required help from SPOC to reinstate. SPOC was also available to remedy  
malfunctions with one of the many computer software applications as well as being the source  
for replacements, repairs and upgrades in hardware and other equipment required by the AHA to  
perform his or her work, including the Grievor’s laptop computer she used as an At Home Agent.  
[94] To highlight a developing issue that will become apparent in the description of events  
during Period 2 of the narrative in this case, aside from hearing much evidence from the Grievor  
about the problems she claimed to be having with her At Home office systems, Ms. Leclerc  
wasn’t asked whether in dealing with SPOC the CSA had to go through his or her manager, or  
was permitted to approach SPOC directly for the technical assistance considered necessary.  
Certainly there was no clear Company rule or policy on the matter ever identified. And as the  
evidence before me later demonstrated, the SPOC personnel did not seem to hesitate in dealing  
directly with an At Home Agent in the absence of express written or verbal authorization from a  
supervisor when approached by the AHA for technical assistance. Rather as Mr. Olsen later  
confirmed in his testimony, the SPOC technicians accept telephone calls from Customer Service  
Agents and issue a “ticket” that is logged as a point of reference for all work done by the SPOC  
technician in response to the request, and the usual practice is for the CSA to contact SPOC  
directly. Thus the Grievor testified she didn’t think there was anything wrong with personally  
dealing with SPOC on any issues related to the operational functionality of her At Home  
systems, and the supporting circumstances substantiated that view. Certainly there is no  
evidence before me indicating that Ms. Leclerc made it clear to the Grievor that she was either  
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not to contact SPOC on her own, or only to do so with the express advance permission of her  
supervisor. Moreover, to the extent that Mr. Olsen was later critical about the Grievor’s conduct  
in addressing her concerns with SPOC directly instead of first bringing those concerns to him,  
there was no evidence before me to show that Mr. Olsen (or any other supervisor) had expressly  
directed the Grievor to do so before the events for which she was later criticized and disciplined.  
Allegations of “Call Avoidance”  
[95] While the foregoing events were occurring, a separate investigation was ongoing to  
determine whether the Grievor was engaging in the improper practice of “call avoidance”, which  
in the Grievor’s five-day disciplinary suspension letter dated November 12, 2012 is referred to as  
“misappropriated company time”. The investigation began with an incident on October 25, 2012  
involving Mr. Ronnie Olsen, who was a Manager of Business Client Care and a peer of Ms.  
Leclerc, supervising a similar unit of about 20 employees at the Scarborough call centre.  
[96] Mr. Olsen doesn’t know the Grievor at this point in time except to possibly notice her  
name on e-mail chains going out to the CSAs generally or when Ms. Leclerc directed her staff of  
some 20 individuals on October 23, 2012 to contact Mr. Vince Marasco (another peer manager)  
or Mr. Olsen if they required assistance while Ms. Leclerc was absent from work for personal  
reasons. The Grievor likewise didn’t know Mr. Olsen except maybe to see him around the call  
centre and his name on e-mails (or to receive a request from him as a supervisor for her home  
address in order to arrange for upcoming annual home visits of an At Home Agent which was  
apparently standard Company procedure). The records indicate that Ms. Leclerc was directing  
her staff to contact different supervisors (sometimes listing Mr. Olsen as one of several managers  
but not to any exclusive degree) on other matters that included the need to schedule overtime to  
handle an anticipated heavy workload after October 23, in Ms. Leclerc’s absence.  
[97] Beginning at least by the first week of November (if not earlier) I found on the evidence  
that Ms. Leclerc’s attendance had become understandably spotty due to the illness of her father,  
and there appeared to be some confusion as to who was responsible for the Grievor’s day-to-day  
activities at different times. As described further, Mr. Olsen testified that he became responsible  
for Ms. Leclerc’s employees on November 6, 2012, yet the only record of an announcement to  
that effect was an e-mail from Mr. Olsen himself dated November 13, 2012, in which he wrote to  
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Ms. Leclerc’s team: “As most of you know, Deb will be out of the office for the next week or  
two. While Deb is away please reach out to myself for any support you may need. Please free to  
message, email or call me.” (I came to the conclusion that Mr. Olsen was in error when he  
testified he began supervising Ms. Leclerc’s employees on November 6 because on all of the  
evidence presented to me Ms. Leclerc in fact conducted the subsequent disciplinary meeting with  
the Grievor on November 8 and thus was in the workplace at that time). Ms. Reynolds testified  
that she was acting manager in place of Ms. Leclerc from November 26, 2012. In addition, it is  
apparent from the record of e-mails sent by Ms. Leclerc to her staff that she was alerting them to  
her unavailability at different junctures in this timeframe with directions to seek the “support” of  
a number of different supervisors that did not identify a clear singular replacement for her, until  
Ms. Reynolds was identified as the “acting manager” for the Grievor’s “team”.  
[98] It wasn’t apparent to me that when Mr. Olsen stated in his November 13 e-mail, “While  
Deb is away please reach out to myself for any support you may need” (emphasis added), that  
this was intended as a clear managerial instruction that Ms. Olsen was now the only supervisory  
authority for all of Ms. Leclerc’s employees, including the Grievor. Rather, I concluded on a  
plain reading of those words that this was a general offer of assistance, to be used or not as the  
team member considered necessary, as opposed to what Mr. Olsen later asserted to be a directive  
that all matters pertaining to anything in the Grievor’s employment was to be referred to him, to  
the exclusion of all others.  
[99] Mr. Olsen, who made the decision to discharge the Grievor by November 28, 2012 for  
alleged misconduct after just over two weeks of dealing with her directly, and later wrote the  
discharge letter dated January 11, 2013 leading to Grievance No. 2, joined the Company in 2001  
selling telephones in one of the Company’s corporate stores, eventually becoming a front-line  
supervisor in 2005 and after “Leadership Training”, as a Manager of Business Client Care at the  
Scarborough call centre in February of 2012. He testified he knew Ms. Leclerc was experiencing  
personal issues prior to November 12, 2012 and that he was going to be “supporting her team”  
while she was away from the office. In that regard, Mr. Olsen was monitoring the queue of  
incoming calls to the centre at 8:30 a.m. on October 25 (apparently from a computerized station  
inside the call centre) when he noticed that three Corporate Support Agents were shown on the  
system as available but hadn’t received any calls for up to 30 or 35 minutes, which included the  
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Grievor, and he was concerned there might be a technical problem in properly routing incoming  
telephone calls to them.  
[100] Thus in an effort to test the system, Mr. Olsen called into the queue from an outside  
telephone number as if he was a customer. Since the Grievor was shown by the system as  
having waited the longest of the three CSAs at 35 minutes (and she was the only At Home Agent  
in that group), Mr. Olsen anticipated his call would be routed to the Grievor if the system was  
working properly. He noted through his monitoring of the system that he was connected to the  
Grievor’s VPN telephone line, and he could hear the telephone ringing from his end indicating  
that the call had gone through, but then after the telephone rang for 29 seconds the call was  
disconnected. This was far in excess of the goal of five seconds that Customer Service Agents  
were expected to answer each call, and there seemed to be no reason for the call to have been  
disconnected outside of the Grievor deliberately releasing the call.  
[101] Mr. Olsen anticipated the Grievor should have heard his call “beep” in the Grievor’s  
earphone along with an audible ringing sound and flashing light from the Plantronics box. At the  
same time the Grievor should have received through the COSMO application on her computer  
screen details of the telephone number and account that went with it, which Mr. Olsen could see  
from his call centre vantage-point, was populating the Grievor’s computer screen. When his  
telephone call was disconnected he could see by monitoring the system that the Grievor was  
reported doing “after-call work” (during which time she was not available for any new incoming  
call), following which she indicated by pressing a key on her computer (or some other device)  
that she was available for another call. When Mr. Olsen then tried to contact the Grievor through  
the independent office communicator referred to as “MOC” at 8:40 a.m. inquiring whether the  
Grievor was “available for a moment”, he received no reply to that and to his follow-up message  
at 8:47 a.m. asking: “Are you there?”  
Mr. Olsen reported these observations in an e-mail to Ms. Leclerc, and the decision  
was made (apparently by both Ms. Leclerc and Mr. Olsen, although the evidence is vague on that  
point) to conduct what was referred to as an “AVAYA trace report”. The AVAYA trace report  
is a computer-generated record of the Grievor’s second-by-second activities from the beginning  
of each workday (usually between 8:00 a.m. and 9 a.m.) until the end of her scheduled shift  
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(often 4:00 p.m. to 5:00 p.m.). Ms. Leclerc and Mr. Olsen decided to commence their trace of  
the Grievor’s activities going back to Friday, October 19 that continued until mid-day of  
Wednesday, November 7, for a total of 13 ½ shifts (during which time the Grievor worked 12 ½  
shifts from her home and one day from the call centre on November 6, 2012).  
[103] The concern raised by Mr. Olsen’s observations was that the Grievor might be engaging  
in the practice known as “call avoidance” (although, again, it was unclear in the evidence  
whether Ms. Leclerc, who had been supposedly monitoring the Grievor and having bi-monthly  
meeting with her, shared that concern). Call avoidance is typically revealed by the CSA hanging  
up on customers after only a few rings (resulting in the CSA going to the bottom of the queue for  
the next call which could take some time depending on call volume, which is also referred to as  
“queue surfing”), or taking too long to answer causing an unusual number of “dropped calls”  
when the client hangs up, or taking an inordinate amount of personal time off during the shift  
which under the Company’s standards should be no more than six minutes per day. Every time  
a call is dropped by the customer or released by the Grievor, the Grievor would be placed at the  
bottom of the queue and thus there might be some time again before another call is routed back  
to her. Such conduct has two immediate consequences: First, the customer is likely annoyed  
and dissatisfied with the level of service that is understandably concerning to the Company in a  
competitive environment. Second, it usually results in the customer calling back who is then  
placed into the queue to be serviced by a different CSA, thereby stretching the Company’s  
resources that may impact the Company’s capacity to deal with the customer demand.  
[104] It was in this timeframe that Ms. Leclerc had the discussion with the Grievor regarding  
her excessive personal AUX time off during her shift that prompted their conversation about the  
Grievor’s purported medical issues and the Grievor’s later request for a PAF to apparently  
substantiate her ‘need to go to the bathroom’.  
[105] I was taken through each day of the AVAYA trace report, along with being provided  
explanations of the various ways that the Grievor’s activities were coded by the system in some  
technical detail, which showed every second that she was on the system and available for a call;  
how long it took her to answer a call; the number of dropped calls; the number of “hang ups” by  
the Grievor; the amount of time she spent doing after-call work; and how much she spent on  
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personal AUX time off (that was in addition to the unpaid meal break and two 15-minute paid  
breaks during each shift). Ms. Leclerc and Mr. Olsen reviewed the data from the AVAYA trace  
report which was summarized in a “statistical analysis” that was also entered into evidence.  
[106] It is not necessary to go through all of the data presented to me. My general assessment  
of that data, without including the November 6 date when the Grievor worked from the  
Scarborough call centre, indicates that the Grievor rarely achieved the goal of answering  
incoming calls within five seconds of the ring (being just over 10% of the time); with about 22%  
of the calls answered between five and nine seconds; 40% answered between 10 and 19 seconds;  
almost 20% between 20 and 29 seconds and just over 9% not answered until the ringing  
extended more than 30 seconds. Ms. Leclerc testified the data revealed 156 instances of the  
Grievor not responding to telephone calls for 15 seconds or more over 12 ½ shifts. The data also  
showed that the longest ring times occurred on October 23 (which is recorded as 1 minute),  
October 30 (2 minutes 39 seconds), October 30 (1 minute 35 seconds) and November 1 (at 1  
minute 6 seconds). This was while the system indicated the Grievor was at her desk and marked  
as available to take a call. There were also seven “customer hang ups” during this interval and  
the Grievor hung up on 25 occasions before answering a call, usually within 30 seconds of a ring  
representing a significant departure from the expected norm of only “two or three per shift” that  
was the experience of Ms. Leclerc in such matters. The Grievor’s personal AUX time off  
outside of permitted meal and rest periods was also excessive when compared to the expected  
target of six minutes. Over the 12 ½ shifts that she worked as an At Home Agent the data  
indicates the Grievor took an average of 14 ½ minutes per day for personal time ranging from a  
low of 3.27 minutes on the full shift of October 25 to a high of 21.5 minutes on October 26.  
[107] I concluded from this data and the explanations provided by Ms. Leclerc and Mr. Olsen  
that ring times were much higher than what would normally be expected, as were the incidents of  
“hang ups” and “dropped calls” by the both the AHA and the customer. The data also supported  
the conclusion that the Grievor’s personal AUX time was significantly above the six minute  
expectation that AHAs would generally take in the course of a normal shift.  
[108] When confronted with the results of the AVAYA trace report in her examination-in-  
chief, the Grievor testified that as she had previously advised Ms. Leclerc, the Grievor was  
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experiencing a number of “system issues” that included an apparent problem with her  
Plantronics device causing her to lose calls when two came into her station at the same time.  
However, she admitted that because she started work early in the morning and didn’t want to  
disturb the other occupants of her house, she turned the ringer off (which she claimed was loud)  
that she testified she knew was against Company policy, with the result that she either missed or  
didn’t respond to calls as quickly as she should. While she apologized for that in testifying, it is  
clear she did not admit her misconduct or apologize at the time. In addition, she claimed to be  
having ongoing problems with her Virtual Private Network (“VPN”) crashing and requiring her  
to frequently “reboot” to get it running again (and later developed a problem with her laptop  
computer requiring its replacement), which she told Ms. Leclerc about but which Ms. Leclerc  
denied in her testimony.  
[109] Moreover, because of her increasing need to use the bathroom over this period, and  
anticipating that there would be enough time between calls to attend to those needs, the Grievor  
testified that, “I just thought it would be ok to go to the washroom” without specifically  
indicating her unavailability on the system for personal time off, which the Grievor also knew  
was against the Company’s policy. She conceded in her evidence-in-chief that: “I should have  
put myself into personal AUX and I know that was wrong.” In cross-examination the Grievor  
estimated each washroom break took “two to three minutes”, which viewed with the medical  
documentation later provided to the Company supports the finding that she was leaving her post  
for that duration at least “two to three times per hour”.  
[110] The Grievor denied that she was purposely trying to miss calls, stating: “That was not  
my intention at all. I got too relaxed I think working from home and I slacked a bit; and I am  
sorry”. When asked why she didn’t respond to Mr. Olsen’s MOC message at 8:40 a.m. on  
October 25, the Grievor testified she didn’t know who it was calling and didn’t use that system  
(which she referred to as “Communicator”) very often, indicating that she usually has that  
system closed because she gets messages from British Columbia for another employee also  
named Tracy Baker in error, and that the Communicator causes other operating systems to “lag  
(and) take longer for things to open”. (As an aside, the Company filed a number of e-mails that  
name the Grievor along with Mr. Olsen as one of at least 20 and sometimes double that number  
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of individuals copied on the e-mail, to support the Company’s position that the Grievor should  
have known who Mr. Olsen was at the time).  
[111] In re-examination, Mr. Wain who is the Company’s Director of Information Services,  
disputed the Grievor’s allegations of difficulties with the Plantronics box resulting in the dropped  
calls claimed by the Grievor, amid much technical backup and obvious expertise on the matter,  
causing me to doubt the reliability of the Grievor’s observations in that regard on a balance of  
probabilities standard.  
[112] Rather, as I shall elaborate upon later in these Reasons, I concluded from this evidence as  
corroborated, in my view, by the effect of her intense cross-examination, that the Grievor was  
taking chances with her timekeeping in response to a developing medical problem requiring  
frequent bathroom breaks, which she failed to report to her supervisor with sufficient clarity of  
detail to reasonably put the Company on notice of the possible need to accommodate an  
employee with a disability.  
[113] While she may not have intended to avoid calls, the effect of her timekeeping conduct  
that she knew to be against Company policy, coupled with her decision to disable the ringer on  
her Plantronics device so not to disturb others in the morning that she also knew to be against  
Company procedures, caused the Grievor to miss calls and inconvenience customers that  
justified a disciplinary response.  
[114] As I elaborate upon below, even employees who have a disability are required, in my  
opinion, to alert the employer about the disability in a clear and timely manner so to allow the  
employer to assess and if appropriate, accommodate the situation short of undue hardship. The  
fact that an employee has a developing disability affecting the employee’s work is not license for  
the employee to disregard the rules on his or her own initiative (or to be “slack” as the Grievor  
described about timekeeping issues), and in doing so in this case the Grievor placed herself at  
risk of receiving legitimate discipline, particularly given the lack of supervision and trust placed  
in the Grievor by the Company to perform to its reasonable standards, which the Grievor was  
aware of at the time.  
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[115] Whether the quantum of the penalty is affected by the disability (where the employee  
might be understandably embarrassed to discuss such personal matters with the employer and/or  
the problem develops gradually over time and may not be immediately apparent) is a matter to be  
considered when questions of mitigation arise as part of that determination.  
Investigative Meeting of November 8, 2012 and Immediate Aftermath  
[116] Nevertheless, to Ms. Leclerc and Mr. Olsen the AVAYA trace data demonstrated classic  
call avoidance behavior. Thus Ms. Leclerc convened an investigative meeting with the Grievor  
and her Union representative, Mr. Brian Turner on Thursday, November 8, 2012. Mr. Morasco  
attended the meeting as a second member of management who kept notes that were entered into  
evidence. Since Mr. Marasco’s sole purpose in attending the meeting was to act as a Company  
witness and recorder of the discussions, both Ms. Leclerc and Mr. Marasco testified that his  
notes are considered “accurate”. The Grievor was given no advance notice of the specific items  
to be discussed and thus testified she was “very shocked that this was happening and I was very  
defensive” when she was unexpectedly confronted with a number of events going back several  
months (recognizing she was handling some 32 calls per day). Ms. Leclerc had prepared for the  
meeting with a number of typed questions covering her areas of concern under the headings,  
“Professionalism”, “Call Avoidance/Short Calls”, “Ring Time” and “Ethics”.  
[117] As their discussions around “Professionalism” and “Ethics” have already been dealt with  
above, it need not be repeated in detail except to note that the Grievor testified the reason she had  
accessed her own mobile phone account was to test the system as she was having difficulties  
with one of the software applications and wanted to see how it operated when she put in her own  
telephone number (which is cross-referenced to her account). While she didn’t say that  
expressly to Ms. Leclerc, the Grievor did tell her that she didn’t know that she was doing  
anything wrong and didn’t try to change anything in her own account.  
[118] Ms. Leclerc also went through the June 13, June 25 and October 4 incidents of alleged  
rude and unprofessional conduct before confronting the Grievor with the new allegations of such  
behavior on October 30, where Mr. Marasco’s notes indicate that the only thing that Ms. Leclerc  
said to the Grievor in relation to that incident was that the customer “was in tears” because of the  
Grievor’s behavior, which the Grievor stated was, “Not from me”. (I noted that Ms. Leclerc  
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provided none of the context of that October 30 event as disclosed by the more detailed e-mails  
and records filed with me, nor does it appear that this e-mail complaint was ever shared with the  
Grievor). Based on their discussion on the issue of Professionalism and Ethics, Ms. Leclerc  
concluded that the Grievor had breached Company’s “strict” policy prohibiting looking at her  
own account and, significantly to Ms. Leclerc, the Grievor was not prepared to acknowledge and  
take responsibility for her unprofessional and rude conduct.  
[119] When it came to details of the AVAYA trace report suggesting call avoidance, the  
Grievor had no recollection of Mr. Olsen sending her a MOC message on October 25, but did  
repeat the information in the prior e-mail to Mr. Leclerc complaining about technical difficulties  
with receiving two calls at the same time, causing her to lose calls. Except for the problem the  
Grievor claimed to be having with the Plantronics box, Mr. Marasco’s notes do not show that she  
told them about the additional technical issues that she later testified about, which is consistent  
with Ms. Leclerc’s evidence on the matter. Nor do they reflect the Grievor’s further testimony  
that she claimed to have reminded Ms. Leclerc about the problems she had already reported  
concerning her “VPN going down”, that Ms. Leclerc never responded to. Near the end of the  
investigative meeting, the Grievor’s evidence is that she asked Ms. Leclerc, ‘if it was OK to call  
SPOC to go over the issues and problems she was having with her systems’ so that Ms. Leclerc  
would know that “these were the issues (the Grievor) was having.”  
[120] The evidence before me does not reveal a clear or any answer to that question, and it is  
not reflected in Mr. Marasco’s notes; however those notes were limited to recording the answers  
to the specific questions that Ms. Leclerc asked, not to anything else discussed or independently  
raised by the Grievor. Rather, in response it appears the Grievor was advised that she was not to  
work for the rest of that day and on the following, Friday, November 9.  
[121] The Grievor returned with Mr. Turner, her Union steward, for a disciplinary meeting with  
Ms. Leclerc on Monday, November 12 to receive the letter of that date, reproduced above,  
imposing a five-day suspension for having “misappropriated company time”, improperly  
“accessed [the Grievor’s] own personal account for non-work related reasons”, and for “lack of  
professionalism when dealing with clients”. On this occasion Mr. Mark Plumber witnessed the  
issuance of discipline as the second member of management but was not called to give evidence.  
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Ms. Leclerc testified that she considered terminating the Grievor’s employment at that time  
given the seriousness of the Grievor’s misconduct, but decided upon a five-day suspension  
instead because of her length of her service and clear disciplinary record.  
[122] Thus Ms. Leclerc testified that the Grievor was advised she was suspended without pay  
for five working days effective Friday, November 9, 2012, returning to work on Friday,  
November 16, 2012. Ms. Leclerc also testified she told the Grievor that “at the end of the five-  
day suspension (the Grievor) was to return to the office and work from the office until further  
notice”. But there was no written notation of the cancellation of the Grievor’s At Home Agent  
status in the letter of discipline or any other letter to the Grievor at the time. And when  
questioned about it, the Grievor claimed that she didn’t remember ever being told that she was to  
report for work only at the call centre after her suspension. In that regard it is convenient to set  
out below the last paragraph of Ms. Leclerc’s November 12, 2012 disciplinary letter to the  
Grievor, which does not expressly tell the Grievor that her AHA status has been removed or that  
she is from that point on, only to work out of the Scarborough call centre:  
The behaviors that you have been demonstrating are inexcusable and cannot be tolerated. Your  
conduct is contrary to TELUS’ expectations, and clearly acceptable (sic). In order to impress upon  
you the seriousness of this situation and convince you to take immediate steps to correct your  
behavior, you are suspended for five days as of Friday November 9, 2012. You are to report for  
work as scheduled on Friday November 16, 2012 at your scheduled start time. Please be  
advised that if the issues noted are not addressed, or if there are any other issues with  
performance or misconduct that arise, further disciplinary action will be taken up to and including  
[Emphasis added]  
[123] Indeed, I concluded it was not an unreasonable interpretation of this letter that the  
Grievor’s status as an At Home Agent was unaltered by the discipline and that the Grievor was  
instructed “to report for work as scheduled…at your scheduled start time” with no restrictions  
imposed on the location of the Grievor’s future work to the call centre only. Further to that, the  
evidence before me indicated that there was a significant amount of expensive electronic  
equipment provided by the Company to the At Home Agent, to enable the AHA to work from  
home (such as a computer, headsets, Plantronics box, etc.). Yet I found that there was nothing  
mentioned in the November 8 or 12 meetings; or suggested in the November 12, 2012 letter of  
discipline, requiring the Grievor to return that equipment to TELUS or to make arrangements for  
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its return. This is more in harmony with an intention not to remove the Grievor from her  
position as an At Home Agent, or at least that failure sufficiently obscures the matter to make  
any confusion the Grievor may have about her status, understandable as likely at the time.  
[124] At least in the Grievor’s mind, and having had the opportunity to watch the Grievor over  
many days of cross-examination where her tendency to react in a confused and disoriented  
manner while under pressure was apparent, I found from her actions at the time and afterwards in  
weighing all of the evidence on a balance of probabilities standard that she did not realized or  
perhaps even hear the verbal instructions from Ms. Leclerc that she would no longer be permitted  
to work from home given the obvious stress she was under during the disciplinary meeting.  
[125] In addition to the absence of any written directive clearly telling the Grievor that she was  
being removed from the AHA program and from that point on would only be permitted to work  
out of the Company’s Scarborough call centre, as the evidence later presented to me shows,  
when the Grievor did report for work at the call centre she wasn’t provided with her own desk,  
but rather was allowed to use any available desk with telephone and computer connections,  
which was the procedure followed for At Home Agents whenever they came into the  
Scarborough call centre to perform work. Thus from the Grievor’s perspective, when she  
worked in the call centre on Friday, November 16 and Monday, November 19, as described  
below, there would have been nothing to alert her of a change in her AHA status.  
[126] To be sure, the Union does not dispute that the Grievor was to work in the call centre  
after returning from her suspension. Mr. Turner, the Union steward who accompanied the  
Grievor at the November 12, 2012 disciplinary meeting, confirmed to Mr. Olsen in the  
subsequent investigative meeting held on November 27, 2012, described below, that Ms. Leclerc  
told the Grievor that, “I need you to work the office until further notice, which was consistent  
with Ms. Leclerc’s testimony on point. However, I found it significant that Mr. Marasco’s notes  
of the November 8 investigative meeting did not show any explicit notification or even threat by  
Ms. Leclerc to the Grievor that she was no longer considered to be an At Home Agent. I also  
noted that Mr. Marasco did not record anything recording Ms. Leclerc as having given the  
Grievor a clear direction in that regard. The Company did not produce Mr. Plumber as a witness  
to the events of the November 12 disciplinary meeting who may have shed light on the clarity of  
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Ms. Leclerc’s direction to the Grievor in that regard, but I don’t have that evidence. Accepting  
that Ms. Leclerc used the words, “I need you to work the office until further notice”, I found  
those words to be sufficiently general and vague not to clearly place the Grievor on notice of the  
Company’s expectations going forward.  
[127] In order to support the discipline that was to follow (during Period 2 described below)  
the onus is on the Company to prove that the Grievor’s supervisor told her in clear and  
unequivocal terms that: (a) she was no longer in the AHA program; and (b) that henceforth she  
was to report only to the call centre, which the Grievor knew or should have reasonably known at  
the time. On the equivocal message of the disciplinary letter on that point alone, I concluded the  
Company had not met its burden. And in the circumstances under which the evidence indicates  
the Grievor was told that Ms. Leclerc ‘needed her to work in the office until further notice’, at  
the end of a meeting that was understandably emotionally stressful to the Grievor, seemingly as a  
passing remark, does not have the sufficient clarity for the Company then to base its later  
discharge of the Grievor.  
[128] Given the consequences that the evidence later disclosed of the Grievor continuing to  
work at home on one day after her disciplinary meeting, the Company must show clarity in Ms.  
Leclerc’s direction in that regard, and its failure to do so undermines the very serious disciplinary  
response that it later imposed for the Grievor’s alleged “failure to follow a management  
directive”, which is relied upon as a ground for terminating the Gr