Can I be penalized at work for monitored, but not recorded, calls?

THE QUESTION

Our employer monitors our calls live, does not record them, and rates us on the call. Every month, we are provided with a report that rates the calls, gives us a mark and a pass or fail grade. Can they legally fail us on our call audits for a call for which they have no recording of the conversation, and that we cannot listen to or dispute?

This overall mark for the year affects our performance review and bonus. We are not permitted to score less than 90 per cent. We are required to pass 10 of 12 monthly call audits. This seems unreasonable, and it is incredibly stressful.

THE FIRST ANSWER

Bruce Sandy

Principal, Pathfinder Coaching and Consulting, Vancouver

I am curious if your employer explained these unreasonably high call standards, as well as the monitoring, when you were hired.

Did your employer get you to sign a contract or other document agreeing to these conditions? If you did, then did you understand what you were agreeing to and signing?

I suggest that you speak to a labour/employment lawyer about your legal options, especially if your employer tries to suspend or terminate you. There are questions here about informed consent, appropriate standards and your ability to reasonably address your employer's concerns when you are not able to listen and learn from the calls.

You can try to negotiate with your employer about setting more reasonable standards and being able to record, listen and learn from the calls.

It may be helpful if you get support from your fellow employees in these negotiations. If your employer refuses to listen and negotiate these terms, then you will need to choose whether you want to stay or seek alternative employment.

Strategically, you need to polish up your resumé and start looking for another job, especially if you are not able to handle the stress of your current position.

THE SECOND ANSWER

Daniel Lublin

Whitten & Lublin Employment Lawyers, Toronto

Up to termination for misconduct, employers have wide latitude to set performance targets and manage the performance of their employees – as long as it is performed in good faith and in a non-discriminatory fashion.

Examples of bad faith or discrimination include putting an employee on a performance-improvement plan for ulterior motives, treating certain employees differently or using performance management for discriminatory motives.

Outside of these relatively narrow limits, employers are generally allowed to performance-manage their work force as they see fit. And, if it is perceived as unfair, there is not much that an employee can do about it.

However, once a termination occurs, if the employer asserts that no severance is payable due to poor performance, this can be challenged in court.

In this instance, a judge must determine whether the performance standards were reasonable and fair and justified the employer's decision.