MBA 7522

[38] A key issue is Mr. Colburns performance evaluation.

[39] Costco claims that Mr. Colburns belowaverage performance was the sole determining

factor in its decision not to rehire him. Costco has filed affidavit evidence from several

managers to support this position.

[40] Mr. Colburn claims good performance. He also claims positive feedback from managers

during his employment, which, he says, contradicts the evidence these same managers are now

providing in support of Costcos application to dismiss.

[41] The only contemporaneous document on this issue is Mr. Colburns employee

performance appraisal completed by the Foods Manager on August 28, 2016 [Appraisal].

2018 BCHRT 113 (CanLII)

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Mr. Colburn says [42] the Appraisal contradicts Costcos position that his performance was

belowaverage. Most notably, Mr. Colburn points to the Managers Overall Comments section

at the conclusion of the Appraisal which states overall Robert does a good job daily. Mr.

Colburn also points to other positive comments in the Appraisal such as:

a. Robert shows commitment to showtime readiness by trying to get his area finished

on time.

b. Robert communicates well with fellow employees and with management. Again, if

there is something he does not understand he will ask for clarification.

c. Robert displays a positive cando attitude in his work. He will do whatever is

asked of him and will help in other areas as needed.

d. Robert is dedicated to quality results in that he wants to do a good job and makes

his aisles look good.

e. Robert has shown himself to be flexible. He will do any job regardless of location or

task. Robert is available when needed, and can stay after opening if required.

f. Roberts attendance is well within the Costco Standard.

[43] The Appraisal does reference the need for Mr. Colburn to show greater urgency when

stocking. However, there are far more positive than negative indicia of Mr. Colburns

performance, and, when read as a whole, the Appraisal does not suggest Mr. Colburns

performance to be belowaverage. Certainly, the conclusion that overall, Robert does a good

job daily does not suggest Mr. Colburns performance to be belowaverage.

[44] Costco has filed an affidavit from the Foods Manager to address this issue. In the

affidavit, the Foods Manager explains that it is Costcos practice to build employee confidence

by providing positive feedback on performance appraisals. Costco managers then identify one

or two key development areas for an employee and deliver feedback on how they can improve

their performance in these areas. The Foods Manager says he followed this approach when

2018 BCHRT 113 (CanLII)

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completing the Appraisal. He says that, overall, Mr. Colburn, was not able to accomplish the

goals we set for our food stockers. He also says that managers provided regular verbal

feedback to Mr. Colburn about his areas of deficiency.

Mr. Colburn [45] disputes this explanation, denies receiving negative feedback from the

managers, and challenges their credibility. He says the Appraisal correctly captures his strong

performance and claims the managers are colluding to provide misleading, afterthefact

evidence to justify discriminatory conduct.

[46] Mr. Colburn says his September 4, 2016 meeting with the Merchandising Manager

reveals the true reasons behind Costcos decision not to rehire him. At the meeting, Mr.

Colburn claims the manager told him he was too old to advance in the company and too

inflexible due to family commitments.

[47] Mr. Colburn also points to Costcos failure to inform him of, and to implement,

adequate accommodation measures as further evidence of discriminatory conduct.

[48] I agree with Costco that the fact that a complaint engages questions of credibility is not

fatal to a dismissal application: Bell v. Dr. Sherk and other, 2003 BCHRT 63, para. 2829.

However, as the Court of Appeal has affirmed: If there are foundational or key issues of

credibility, then the matter must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA

242, para. 67.

[49] Credibility is a foundational consideration in this complaint. The parties have conflicting

accounts of key issues in this complaint, including Mr. Colburns performance evaluation, the

June 15, 2016 accommodation meeting between Mr. Colburn and the General Manager, and

the September 4, 2016 season ending meeting between Mr. Colburn and the Merchandising

Manager. The documentary evidence, including the Appraisal, cannot resolve these issues

absent a credibility determination.

[50] In my view, this type of complaint does not lend itself well to a preliminary dismissal

application. It pits Mr. Colburns account against Costcos.

Please answer the following questions. Each answer must not exceed 300 words.

1. From the list below, please choose 2 of the following documents and state the reason why they these tools would have helped the employee and the employer avoid this situation:

1. Job Description
2. Performance Appraisal Training
3. Transfer Information
4. Performance Appraisal Check-list
5. Hiring Policy
6. Performance Appraisal Policy for Contract Employees

2. If you were the General Manager of the Costco location, what steps will you take in the future to ensure the situation in section [9] has no opportunity to happen again? Specifically, what would you recommend Costco implement to minimize future risk during casual performance discussions?
3. What do you think should have been done differently in this case to ensure there was no doubt about the employees future with the company?