Restructuring of a division of the bank held to be a veiled attempt to terminate employee
Nihal Mathur was a problem employee for the Bank of Nova Scotia. In 1992 the bank terminated Mr. Mathur’s employment alleging “an inability to interact with supervisors, peers and subordinates in a manner acceptable to the bank or at all.” As a result of his termination Mr. Mathur filed a complaint under the Canada Labour Code claiming unjust dismissal.
The matter was heard before an adjudicator. In her decision of Dec. 23, 1993, the adjudicator upheld Mr. Mathur’s complaint and reinstated him to his former position with compensation. The adjudicator held that the bank had failed to follow its own specific procedures for progressive discipline.
From the date of Mr. Mathur’s reinstatement onward, there was ongoing conflict between Mr. Mathur and his supervisors for the next five years. Eventually Mr. Mathur was characterized by the bank as a “virtually unmanageable” employee.
Mr. Mathur was employed with the bank’s Ontario international trade services unit in the position of manager, exports. The unit had three divisions: exports, guarantees and imports. In 1998 the bank began discussions about merging the exports and guarantees sections of the unit. The supposed rationale for this merger was to improve productivity. The import department had 16 staff, exports had nine and guarantees had five. Merging exports and guarantees would give the combined group 14 and would eliminate a manager position.
Over the next year while discussions were ongoing to reorganize the unit, it was recognized that Mr. Mathur would challenge the reorganization as a veiled attempt to eliminate his position. For this reason the bank made extra effort to ensure that the business case for the reorganization was “iron clad.” Part of the rationalization by the bank’s management for the reorganization was the fact that other units in Montreal and Vancouver were structured similarly. In addition to finding an “iron clad” business case, the management also sought and received advice from its human resources department and from both internal and external legal counsel as to whether the reorganization could be sustained against a challenge by a disaffected employee.
In April 1999 Mr. Mathur and the manager of guarantees, Mr. Ng, were informed that their positions had been eliminated as a result of the reorganization of the unit and that a new position of manager, exports and guarantees had been created consolidating the duties of the eliminated positions. Both were advised that they were eligible to apply for the new position. They were given details of the severance package to which they would be entitled should they be unsuccessful in locating a position within the bank.
A three-person selection panel was created to interview the candidates for the new position. The panel was comprised of Mr. Dewhurst, who would be the supervisor of the new position, Mary Anne Quail, a staff member from human resources, and David Brodie, senior manager, production management. After interviewing the three applicants to the position, the panel determined that Mr. Ng was the superior applicant. Mr. Mathur was given three months to find alternate employment within the bank, failing which he was given a severance package.
Mr. Mathur again challenged his termination from the bank by filing a complaint under the Canada Labour Code. In defending against the complaint, the bank took the position that the adjudicator was without jurisdiction to hear the complaint since Mr. Mathur lost his employment as a result of the “discontinuance of a function.” Section 242(3.1) of the code provides that no complaint shall be considered by an adjudicator in respect of a person where that person has been laid off because of lack of work or because of the discontinuance of a function.
Mr. Mathur argued that the reorganization was merely a veiled attempt to terminate him. The adjudicator agreed.
The bank gave evidence at trial that Mr. Mathur was a serious candidate for the new position of manager, exports and guarantees.
It is this contention that the adjudicator did not accept. In his words, “the contention that an unmanageable employee – and one who is under a ‘last chance’ improvement program – was a viable candidate is so implausible and unlikely that I am unable to give credence to the stated purpose of the merger/reorganization.”
The adjudicator held that the merger/reorganization was engineered for the primary purpose of attempting to deprive Mr. Mathur of any basis for challenging his termination under the code.
Having found that the dismissal was unjust, the adjudicator was not prepared to reinstate Mr. Mathur to a position with the bank as this had been done by an earlier adjudicator with negative results. As to damages, this was left to counsel to determine at their request.
For more information:
• Mathur v. Bank of Nova Scotia, Can. Adjud. Appointed under the Canada Labour Code, Jan. 8/01.
The matter was heard before an adjudicator. In her decision of Dec. 23, 1993, the adjudicator upheld Mr. Mathur’s complaint and reinstated him to his former position with compensation. The adjudicator held that the bank had failed to follow its own specific procedures for progressive discipline.
From the date of Mr. Mathur’s reinstatement onward, there was ongoing conflict between Mr. Mathur and his supervisors for the next five years. Eventually Mr. Mathur was characterized by the bank as a “virtually unmanageable” employee.
Mr. Mathur was employed with the bank’s Ontario international trade services unit in the position of manager, exports. The unit had three divisions: exports, guarantees and imports. In 1998 the bank began discussions about merging the exports and guarantees sections of the unit. The supposed rationale for this merger was to improve productivity. The import department had 16 staff, exports had nine and guarantees had five. Merging exports and guarantees would give the combined group 14 and would eliminate a manager position.
Over the next year while discussions were ongoing to reorganize the unit, it was recognized that Mr. Mathur would challenge the reorganization as a veiled attempt to eliminate his position. For this reason the bank made extra effort to ensure that the business case for the reorganization was “iron clad.” Part of the rationalization by the bank’s management for the reorganization was the fact that other units in Montreal and Vancouver were structured similarly. In addition to finding an “iron clad” business case, the management also sought and received advice from its human resources department and from both internal and external legal counsel as to whether the reorganization could be sustained against a challenge by a disaffected employee.
In April 1999 Mr. Mathur and the manager of guarantees, Mr. Ng, were informed that their positions had been eliminated as a result of the reorganization of the unit and that a new position of manager, exports and guarantees had been created consolidating the duties of the eliminated positions. Both were advised that they were eligible to apply for the new position. They were given details of the severance package to which they would be entitled should they be unsuccessful in locating a position within the bank.
A three-person selection panel was created to interview the candidates for the new position. The panel was comprised of Mr. Dewhurst, who would be the supervisor of the new position, Mary Anne Quail, a staff member from human resources, and David Brodie, senior manager, production management. After interviewing the three applicants to the position, the panel determined that Mr. Ng was the superior applicant. Mr. Mathur was given three months to find alternate employment within the bank, failing which he was given a severance package.
Mr. Mathur again challenged his termination from the bank by filing a complaint under the Canada Labour Code. In defending against the complaint, the bank took the position that the adjudicator was without jurisdiction to hear the complaint since Mr. Mathur lost his employment as a result of the “discontinuance of a function.” Section 242(3.1) of the code provides that no complaint shall be considered by an adjudicator in respect of a person where that person has been laid off because of lack of work or because of the discontinuance of a function.
Mr. Mathur argued that the reorganization was merely a veiled attempt to terminate him. The adjudicator agreed.
The bank gave evidence at trial that Mr. Mathur was a serious candidate for the new position of manager, exports and guarantees.
It is this contention that the adjudicator did not accept. In his words, “the contention that an unmanageable employee – and one who is under a ‘last chance’ improvement program – was a viable candidate is so implausible and unlikely that I am unable to give credence to the stated purpose of the merger/reorganization.”
The adjudicator held that the merger/reorganization was engineered for the primary purpose of attempting to deprive Mr. Mathur of any basis for challenging his termination under the code.
Having found that the dismissal was unjust, the adjudicator was not prepared to reinstate Mr. Mathur to a position with the bank as this had been done by an earlier adjudicator with negative results. As to damages, this was left to counsel to determine at their request.
For more information:
• Mathur v. Bank of Nova Scotia, Can. Adjud. Appointed under the Canada Labour Code, Jan. 8/01.
