Hybrid Discipline

I was a panelist at Insight's Labour Law Conference this morning dealing with workplace accommodation issues. My panel dealt with hybrid discipline.

My co-panelist was Arbitrator Stan Lanyon who decided the Gooding decision, now on its second round of reconsideration before the BC Labour Relations Board. In British Columbia, the BC Labour Relations Board has decided that when there is a causal connection between workplace misconduct and a disability then arbitrators (and employers) must determine which part of the misconduct is due to a disability, and thus non-culpable, and which part is not affected by the disability and is thus within the control of the employee and is culpable. Each category of conduct is analyzed using the appropriate approach: Wm. Scott test to the culpable and the Meioirn test to the non-culpable conduct. The BC Court of Appeal has confirmed that those two tests must be kept separate. An arbitrator can fashion a remedy that takes into account both approaches. So for example, in Gooding, where a liquor store manager who had an alcohol addiction stole liquor from his employer, the arbitrator, applying the hybrid discipline theory, ordered reinstatement with a last chance agreement (this is a thereapeutic non-culpable approach) to a lower rated position (this is the culpable discipline approach). Employers, unions, and indeed arbitrators are struggling with fashioning appropriate remedies. Hopefully the Labour Relations Board will take the opportunity in its review of the Gooding award to refine this area of labour law.

On another note, even if there is no nexus or causal link between the disability and the misconduct, and the case is to be approached on a purely culpable basis, the fact that a grievor suffers from an addiction or a mental disability is one of the circumstances that arbitrators, and employers, must take into account under the second and third questions in Wm. Scott (i.e. is the discipline excessive in all of the circumstances and if it is, what is appropriate?)

The BCLRB decision in Fraser Lake Sawmills can be found at: http://www.lrb.bc.ca/decisions/B213$2002.pdf

The BC Court of Appeal decision in HEABC v. BCNU (Bergen) can be found at:
http://www.canlii.org/en/bc/bcca/doc/2003/2003bcca608/2003bcca608.html

The Insight Conference URL is: http://www.farris.ca/News/attachments/159/Duty%20to%20Accommodate%20Conference%20Brochure.pdf

Skinnydipper Services Inc v. City of Surrey, 2007 BCSC 1625

"For those who came of age in the 1960s, skinnydipping would hardly seem to be a threat to the moral fibre of western civilization. Not so, however, for some of the good burghers of Surrey. When a local newspaper published a story that the Newton Wave Pool, a public facility in Surrey, was being used by a group of nudists or naturists for a late night private members only nude swim, they balked.

Indeed, many in the community called employees of Surrey to express their outrage. Some of the complainants, according to the affidavit evidence filed, said that not only did they think the nudist event was an inappropriate use of a community resource, they added that if it continued, they would never use the Newton Wave Pool again.

One is reminded of Dysart J.’s description of the complainants in Mitchell v. Martin and Rose (1925), 1 W.W.R. 500 (K.B.) at p. 501, where he wrote that they were “annoyed and angered by what they saw and heard, and shocked by what they had neither seen nor heard, but suspected”.

Thus begins BC Justice Williamson's decision in which he strikes down Surrey's bylaw requiring that all persons using its beaches or swimming facilities be clothed.

The underpinning of the decision is the structure of Canada's Constitution where the federal government has exclusive jurisdiction over criminal law. The Criminal Code of Canada regulates nudity and any laws regarding that subject matter are outside the ability of municipalities, which are creatures of the provincial government, to enact.

What, if anything, does this decision have to do with labour law you might ask?

Well, municipal employees of the City of Surrey are members of CUPE Local 402.

One of the arguments that Surrey used to justify its position before the Court, was that it would be unable to provide lifeguards for the naked swim. His Lordship was not convinced. Surrey's own affidavit material showed that when the pool was rented out, management did not assign staff, as this was beyond their regularly scheduled hours. Rather they asked for volunteers to do overtime. And, according to the filed evidence, there had always been enough volunteers to staff the nudist swim. The judge also didn't give much credence to Surrey's argument that this arrangement discriminated against those lifeguards who didn't volunteer because they lost overtime and seniority hours. His Lordship dismissed this argument with the following:

"By that logic, if a lifeguard was of a particular religious group that objected to working on the Sabbath, be it Saturday or Sunday, then Surrey would have to close the pools on that day so as to not deprive those persons of the right to overtime or advances in seniority because of their religious beliefs. I do not find that a reasonable justification for cancelling the permits."

The URL of the complete decision is:
http://www.courts.gov.bc.ca/Jdb-txt/SC/07/16/2007BCSC1625.htm