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Jan 22, 2013

Poor performance, not reprisal, at root of sales associate’s dismissal

Employee was fired after she filed complaint of racial discrimination, but she also violated terms of final written warning given before complaint
    
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An Ontario worker’s firing was for insubordination and poor performance, not a reprisal for a human rights complaint, the Ontario Human Rights Tribunal has ruled.

Andrea Shettleworth was a sales associate at a Banana Republic clothing store in Mississauga, Ont. She was successful at her job over the course of her nine years at the store, but she faced complaints from other employees about bossy behaviour, giving discounts to customers outside of guidelines, yelling and embarrassing staff in front of customers, and taking sales from other staff. Shettleworth was also prone to punching off the time clock to go on break and then continuing to work on the sales floor.

On June 11, 2010, Shettleworth received a final written warning that stated she had to fix these problems and follow company policy or face “further disciplinary action up to and including termination.” Shettleworth refused to sign the warning.

The day after she received the final warning, Shettleworth contacted Banana Republic’s senior vice-president to complain about how the company handled an alleged assault against her by a co-worker. Less than a month later, in early July, she filed a human rights complaint claiming she was being discriminated against on the basis of her race through excessive monitoring of her behaviour, accusations of confrontational behaviour that she considered normal and discriminatory attitudes of staff.

On Sept. 9, other employees reported Shettleworth was handing out 40 per cent off coupons to customers even though the official distribution period was over. The same day, she worked on the sales floor when she was supposed to be on break. When her supervisor returned from break, Shettleworth asked for permission finish up with a customer and it was given.

Banana Republic placed Shettleworth on paid suspension and investigated the allegations. It found Shettleworth and another employee had been giving out coupons and a customer had called the store a week later looking for her because she had promised to give out more coupons. It also found Shettleworth had worked off the clock for 10 minutes before asking her manager if she could do so.

On Sept. 21, 2010, Banana Republic terminated Shettleworth’s employment for violating the terms of her final written warning while the other employee who had distributed coupons was suspended. Shettleworth filed another human rights complaint, claiming her dismissal was a reprisal for her initial complaint of discrimination.

The tribunal found Shettleworth was dismissed for violating the terms of her final written warning, which was given to her before her human rights complaint. The final warning outlined Shettleworth’s substandard job performance and an action plan she had to follow to avoid termination. However, her distribution of discount coupons after the end of the program and working off the clock before getting permission were clear violations of that action plan, said the tribunal.

The tribunal agreed with Banana Republic on the importance of the policies regarding coupon distribution and working off the clock. Working off the clock without permission could expose the employer to employment standards liability and not following the discount coupon rules could cause problems with other sales staff who might lose customers from the solicitation with unauthorized coupons. Customer relations could also suffer if some customers received discounts and others didn’t, said the tribunal.

The tribunal also dismissed Shettleworth’s claim the rules weren’t consistently applied. The other employee was suspended for distributing coupons and wasn’t fired because it was her first warning. In addition, Banana Republic wouldn’t have been looking to get rid of Shettleworth because she had good sales results. The only reason it would want to dismiss her was because of serious misconduct and contravention of company policies, said the tribunal.

For more information see:

Shettleworth v. GAP (Canada) Inc., 2013 HRTO 17 (Ont. Human Rights Trib.).
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