CITATION: Unifor Local 2002 v. Air Canada, 2022 ONSC 2319
DIVISIONAL COURT FILE NO.: 292/21
DATE: 2022-04-19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, E.M. Stewart and A.D. Kurke JJ.
BETWEEN:
Unifor Local 2002
Applicant
– and –
Air Canada and M. Brian Keller
Respondents
A. Dale and B. Scott, for the Applicant
C. Piggot and B. Chang, for the Respondent Air Canada
HEARD virtually at Toronto: February 8, 2022
DECISION ON JUDICIAL REVIEW
A.D. KURKE J.
Overview
[1] In May 2020, in the dawn of the COVID-19 pandemic, Air Canada (the “respondent”) instituted a work-at-home program (“telework”) for its Customer Sales and Service agents (“CSS agents”) whom the applicant represents. The decision to assign CSS agents to telework was based on seniority and on what are known as key performance indicators (“KPIs”), a measurement tool in contact centres and the industry.
[2] The applicant grieved the respondent’s exercise of its management discretion as arbitrary and discriminatory because of its use of KPIs to select which CSS agents could take part in telework. The applicant argued that this use of KPIs was inconsistent with Letter of Understanding No. 11 (“LOU 11”) under the collective agreement, and that CSS agents should be assigned to telework based on seniority.
[3] In his March 15, 2021 award, the arbitrator, M. Brian Keller, dismissed the grievance and upheld the respondent’s reliance on KPIs. He found that LOU 11 did not apply and that the respondent was permitted to use, and had reasonably exercised its management rights under, article 3 of the collective agreement in the circumstances generated by the pandemic.
[4] The applicant takes issue with the determination that LOU 11 did not apply. It asserts that such a determination was conclusory and unreasonable. The applicant argues that the arbitrator’s determination of the issue is neither transparent, intelligible nor justified by analysis. The respondent argues that the experienced arbitrator, well-versed in the labour history between the parties, reasonably interpreted and applied the collective agreement, including LOU 11.
[5] For the following reasons, I conclude that the arbitrator’s determination was unreasonable. Accordingly, the award must be quashed, and the matter remitted for a new hearing before a different arbitrator.
Facts
[6] At the start of the COVID-19 pandemic, the respondent began work on a business continuity plan that would allow its contact centre to continue to operate. Part of this plan involved “telework”, instituted in May 2020, which involved CSS agents working from home using company-issued technology. At first, 50% of the respondent’s CSS agents were assigned to telework while the rest continued to work in the office.
[7] By July 27, 2020, 481 of the respondent’s 791 CSS agents were assigned to telework. In November 2020, more CSS agents were to be selected for telework based on seniority and also on revised KPIs. The respondent provided support to employees who were not accepted into telework so that they could improve their KPIs and be eligible for telework in the future.
[8] KPIs are widely used in contact centres in the aviation industry. The respondent claimed to focus on KPIs that were within the control of CSS agents, including calls per hour, unavailable time and conformance. KPI standards were set at a lower level for telework than for work at the contact centre. The respondent chose CSS agents for telework based on seniority and their ability to meet or exceed their in-office KPIs during a two-day at-home trial.
[9] The applicant launched a grievance on November 2, 2020, on the basis that some employees were being improperly prohibited from telework based on KPIs. The applicant argued in its grievance that the use of KPIs for the purpose of determining suitability for telework was a violation of LOU 11, was discriminatory and arbitrary and that the respondent was misusing the management rights provision in article 3 of the collective agreement.
[10] LOU 11 is incorporated into and is part of the collective agreement. It reads as follows:
LETTER OF UNDERSTANDING NO. 11 – MONITORING AND MEASUREMENT OF WORK PERFORMANCE
L11.01 The Company and the Union recognize the stress that individual monitoring and measurement creates for employees if it is perceived as, or is being utilized in a manner inconsistent with the purposes as set out herein. It is not the intended purpose of monitoring or measurement to place unreasonable restrictions on employees or to discipline or discriminate against employees.
L11.02 Monitoring – The purposes of monitoring are call analysis (i.e., to better understand the types and quantities of calls received) and coaching (i.e., to provide opportunities for employee development). The Company however reserves its right to review calls when required for complaint resolution purposes or in cases where patterns of statistical anomalies exist.
L11.02.01 To ensure that any stressful effect on employees is reduced, each employee shall be consulted to establish the dates (past or future) and time period of the recordings that will be reviewed in a given coaching session.
L11.03 Measurement - The purpose of measurement is to provide the necessary information to determine the level of service to customers and to establish staff requirements.
L11.04 In recognition of these concerns, and to ensure that monitoring and measurement continue to be utilized by the Company for the purposes intended, it is agreed that a Joint Review Board consisting of management and designated representatives of the Union, will meet at the headquarters level as often as required:
L11.04.01 to review, on an ongoing basis, the utilization of monitoring and measurement equipment and processes currently being used or being considered for use in the future;
L11.04.02 to investigate and review complaints; and
L11.04.03 to report to the UMHQ level on a regular basis.
[11] Article 3 of the collective agreement serves as a repository of management rights that may be invoked by the respondent if an issue arises that is not covered by the collective agreement. It states:
ARTICLE 3 - RESERVATIONS OF MANAGEMENT
3.01 The control and direction of the employee work force, including the right to hire, suspend or discharge for cause, terminate, to advance or step back in classification, to reassign, to transfer or lay off because of lack of work or for other legitimate reasons, is vested solely in the Company.
3.02 Those enumerations shall not be deemed to exclude other prerogatives not enumerated. Any of the rights, powers or authority the Company had prior to the signing of the first Agreement, are retained by the Company, except those specifically abridged, delegated, granted or modified by this or any supplementary agreements that may be made in the future. It is understood that none of the foregoing shall detract from the right to lodge a grievance or appeal in the manner and to the extent herein provided.
3.03 It is expressly understood and agreed that management rights as set out in Articles 3.01 and 3.02 hereof are subject to the provisions of this Agreement, and shall not be exercised in a manner inconsistent herewith.
The Award
[12] There was a quick turnaround on this arbitration. The arbitrator received written briefs from the parties on February 16, 2021 and heard viva voce evidence and oral arguments on February 23. Further written arguments were received on March 3. The award was issued March 15, 2021.
[13] In the award, the arbitrator began by describing the policy grievance. The arbitrator noted that the applicant’s position was that “using monitoring as a tool to determine which agents shall work at home results in discrimination against employees who do not successfully meet the employer’s measurements.” While the respondent was attempting to better respond to customer needs, it “cannot do so to the detriment of the individual agent.” KPIs are arbitrary in that they do not measure many essential features of good agency in determining eligibility for telework.
[14] The arbitrator summarized evidence from Natasha Kowalchuk, Director of Contact Centres and Service Excellence for the respondent, who provided the evidence on telework and KPIs that has been summarized in the facts. It was also her evidence that the respondent determined that it would use KPIs, “which are an objective measure of employee performance,” to choose employees for telework. She denied that such a use of KPIs constituted discipline.
[15] In addition, Ms. Kowalchuk’s evidence explained that telework was a way of continuing the respondent’s business “in a healthy and safe manner” in light of the pandemic. Telework was expanded over time as it became obvious that the pandemic would last longer than initially anticipated. Although some CSS agents were not admitted into the program, the respondent did still require some CSS agents physically present in contact centres, and some agents did not want to work at home, given such considerations as working space or internet issues.
[16] The respondent argued that LOU 11 was not applicable to this situation, and that therefore the respondent could rely on its management rights in article 3 of the collective agreement to ground its development of telework. It submitted that the use of KPIs was a reasonable exercise of management rights by the respondent, and that it was reasonable to use KPIs over which CSS agents had some control to select agents for telework who would be self-sufficient and require less supervision. The respondent also advanced an alternative position that if LOU 11 was applicable, then KPIs were being used in accordance with L11.03.
[17] The arbitrator decided that LOU 11 did not apply to the instant case. He held that in interpreting LOU 11 “the whole of the document must be considered.” L11.01 had to be understood in light of L11.02 and L11.03. He then proceeded to set out the final sentence of L11.01 and the text of L11.02 and L11.03.
[18] The arbitrator’s analysis with respect to his determination of the inapplicability of LOU 11 consists of the following paragraphs on page 14 of the award:
The last sentence of L11.01 makes specific reference to monitoring and measuring the purposes of which are provided for in L11.02 and L11.03. Thus, the prohibitions expressed in article L11.01 must be read in conjunction with the purposes of monitoring and measurement as provided for in L11.02 and L11.03. In other words, if the purpose of using the KPIs is for a purpose other than monitoring or measurement as provided for in LOU 11.2 or .3 [sic], then LOU 11, and more specifically its prohibitions, cannot apply.
In the instant case, KPIs are not being used for the purpose of monitoring or measuring as provided for in the LOU, but for an entirely different purpose – choosing employees to perform telework – clearly not contemplated by the parties when they entered into the LOU in 2011. Therefore, in my opinion, the employer is entitled to use KPIs in the manner in which they are now doing, subject to its obligation to act reasonably.
[19] Based on his finding that LOU 11 did not apply to the situation of the grievance, the arbitrator did not consider the respondent’s alternative argument.
[20] As to the rest of the award, it sets out findings of fact that the arbitrator made and with which neither party takes any issue on this review. The arbitrator concluded that the respondent had demonstrated a need for telework, had turned its mind to the number of employees that were needed for telework, and that there was a tool (KPIs) that could be used to determine who best could take part in telework. The respondent had demonstrated the rationale for telework and how best to implement it. Nor did it act in bad faith or in an arbitrary or discriminatory manner. It had behaved reasonably.
[21] The grievance was dismissed.
Standard of review and the reasonableness of administrative decisions
[22] There is no dispute that the standard of review of the arbitrator’s decision is reasonableness.
[23] The focus of a court reviewing an administrative decision must be on the decision actually made by the decision-maker and includes both the reasoning process and the outcome. The reasons are examined in order to understand the reasoning process that the decision-maker followed to arrive at its conclusion: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 83-84.
[24] Judicial restraint lies at the heart of a reasonableness review. A reasonableness review must not devolve into a “line-by-line treasure hunt for error”: Vavilov, at para. 102. Labour arbitrators are highly experienced decision-makers and knowledgeable of their area. For a labour arbitration award to be reasonable there must be no fatal flaw in the logic of the decision, and there must be a line of analysis that can lead the arbitrator from the evidence to the conclusion: Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 5927, at para. 20.
[25] An unreasonable chain of analysis, one which does not justify even a reasonable conclusion, can be a fatal flaw that invalidates a decision: Vavilov, at paras. 86-87. A decision must be based on reasoning that is both rational and logical. A decision will be unreasonable if there is no rational chain of analysis or if it is not possible to understand the decision-maker’s reasoning on a critical point. Circular reasoning, false dilemmas, unfounded generalizations or an absurd premise are also hallmarks of unreasonableness: Vavilov, at paras. 101-104.
Discussion
[26] The arbitrator’s analysis that I have quoted above sets out his rationale for excluding LOU 11 as a control on the use of KPIs for determining eligibility for telework. That rationale is based on the arbitrator’s determination that the wording of L11.01, L11.02 and L11.03 means that LOU 11 only applies in situations where monitoring or measurement are conducted for purposes defined in L11.02 and L11.03. According to this interpretation, if monitoring or measurement are conducted for a different purpose than those listed, LOU 11 has no application.
[27] On its face, LOU 11 defines how monitoring and measurement may properly be used by the respondent in its dealings with employees. Monitoring and measurement can create stress if used “in a manner inconsistent with the purposes as set out herein” (L11.01). Proper “purposes” are clearly demarcated in L11.02 and L11.03. As to monitoring: “The purposes of monitoring are call analysis…and coaching” (L11.02). As to measurement: “The purpose of measurement is to provide the necessary information to determine the level of service to customers and to establish staff requirements” (L11.03).
[28] However, and with respect, “monitoring” and “measurement” are not limited to the purposes set out in L11.02 and L11.03. While proper “monitoring” and proper “measurement” are set out in L11.02 and L11.03, other purposes of “monitoring” and “measurement” are able to be considered on a case-by-case basis under L11.01.
[29] Thus, the arbitrator’s interpretation does not accord with the plain wording and logic of L11.01, L11.02 and L11.03. It seems rather obvious that KPIs constitute measurement. The question then becomes: is the use of KPIs to select employees to work at home a “proper” use of measurement? This question is answered by reading LOU 11 as follows:
a. Monitoring and measurement with respect to employees must only be used in a manner consistent with purposes defined in L11.02 and L11.03;
b. Permitted purposes of monitoring are set out in L11.02. Uses of monitoring in manners that are inconsistent with those purposes create stress for employees (and would likely be subject to grievance);
c. Likewise, the permitted use of measurement is set out in L11.03. A use of measurement in a manner inconsistent with that purpose creates stress for employees (and would likely be subject to grievance);
d. Monitoring or measurement in manners that are not inconsistent with the purposes set out in L11.02 and L11.03 may be acceptable, so long as their intended purpose is not to place unreasonable restrictions on employees or to discipline or discriminate against employees.
[30] The arbitrator did not undertake this analysis because he found that PKIs are not “measurement” within the meaning of LOU 11.
[31] The arbitrator found that the purpose for which KPIs were being used with respect to telework was not in the contemplation of the parties in 2011 when the parties entered into LOU 11. But the arbitrator offers no context or analysis to justify why that should matter if, on its face, the use of KPIs for determining employee suitability for telework involves a form of measurement. It seems apparent on the face of LOU 11 that it was intended to apply to possible future uses of “measurement” tools.
[32] Given the apparent structure of LOU 11, the first step is to decide if KPIs are a form of measurement. If they are, the second step is to decide if use of this form of measurement for telework eligibility breaches LOU 11.
[33] There can be no dispute that KPIs are a tool of measurement. Among findings made by the arbitrator towards the end of the award with which neither party took issue were two, that: “the employer needed a tool to determine which employees were best able to telework”, and: “the employer was using KPIs already as a tool to measure performance.” Such findings derived from the evidence of Natasha Kowalchuk, the respondent’s own witness. On these findings and as a matter of common sense, KPIs are a tool of measurement.
[34] The determination of CSS agent eligibility for telework involves the use of a measurement tool, KPIs, and that use directly affects employees. L11.01 states up front that it deals with the proper use of monitoring and measurement with respect to employees. Given wording in L11.03 that appears to focus on what is an acceptable purpose of measurement, and given the findings of the arbitrator about the use of KPIs to measure employee performance, the decision below fails to explain how LOU 11 could categorically be said not to apply to the use of KPIs in determining qualification for telework.
[35] It could be that the arbitrator was relying on an historical or “cultural” understanding of issues between these parties in this enterprise that legitimately could result in the casting aside of what seems to be the clear wording and logic of LOU 11 in favour of the arbitrator’s reading. It may be that the pandemic operated as some sort of force majeure that overrode the apparent applicability of LOU 11 to this situation. Or there could be some other reasonable explanation. If so, the absence of any explanation or analysis in the award creates an opaque gap that cannot be filled.
[36] It is not for this court to speculate about lines of analysis that could be used to justify the decision below. The core finding below – that LOU 11 does not apply – is unreasonable. No other basis for the decision below can be inferred without this court usurping the role of an arbitrator. In the result there must be a new hearing: Toronto Police Association v. Toronto Police Services Board, 2015 ONCA 188, at paras. 68-69.
Conclusion
[37] For these reasons, the award is quashed, and the grievance is remitted back for a new hearing before a different arbitrator.
Date: April 19, 2022 A.D. Kurke J.
I agree ____________________________________
D.L. Corbett J.
I agree ____________________________________
E.M. Stewart J.
CITATION: Unifor Local 2002 v. Air Canada, 2022 ONSC 2319
DIVISIONAL COURT FILE NO.: 292/21
DATE: 2022-04-19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, E.M. Stewart and A.D. Kurke JJ.
BETWEEN:
Unifor Local 2002
Applicant
– and –
Air Canada and M. Brian Keller
Respondents
DECISION ON JUDICIAL REVIEW
A.D. Kurke J.
Released: April 19, 2022