Sometimes it is better to start work on the first day of the month

Sometimes I come across decisions that while on the surface don't seem to have much to do with labour law, they can have huge consequences for working people.  For example, disability benefits and group life benefits are often provided as a result of a collective agreement obligation, but recovering those benefits will involve suing the insurance company in court.  In those circumstances, it will be insurance law that applies.

In Jackson v. Standard Life, the BC Court of Appeal ruled that where a disability insurance policy has a rider or provision that states that eligibility for coverage is the  "1st of the month coincident with or immediately following employment date" it means that a worker hired on the second of month onwards is not eligible for insurance coverage until the first day of the  following month.

In the Jackson case this interpretation had disastrous consequences for Ms. Jackson. Ms. Jackson, a vice-principal, started work on August 15, became seriously ill on August 27 and underwent major surgery on August 28 and never returned to work.  The court agreed with the insurance company that she did not become covered until September 1 and since she did not have insurance coverage on the date of her disability, she was not entitled to benefits.

In the lower court the judge had been concerned about the unfairness that the plain meaning of the provision created and had found another "reasonable" interpretation.  However the Court of Appeal confirmed that when it comes to interpreting insurance policies, " there is no reason to consider unfairness if no ambiguity has been identified. As stated in Progressive Homes Ltd., “[t]he primary interpretive principle is that when the language of the policy is unambiguous, the court should give effect to clear language...” (paragraph 46).

Interesting arbitrations with a human rights angle by Diane MacLean

Arbitration Summaries (Human Rights Issues: disabilities)


A union can be involved in an employment dispute that involves (or potentially involves) human rights issues. If so, the dispute can lead to grievance arbitration. Arbitrators have the right to consider human rights issues because:

• The collective agreement explicitly includes human rights protections; or

• The collective agreement is deemed to include human rights protection due to the operation of section 89(g) of the B.C. Labour Relations Code which provides:

For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may ….

(g) interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement, … and

The Supreme Court of Canada’s decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 confirmed that such sections in labour legislation gives an arbitrator the jurisdiction to apply the Human Rights Code. In Parry Sound, the grievor was a probationary employee who went on maternity leave prior to the expiry of her probationary term. Within a few days of returning to work, the employer discharged her and she filed a grievance. The arbitration panel held that it was entitled to consider whether the grievor had been a victim of discrimination under the Human Rights Code. The employer appealed this finding to the courts. When the case reached the Supreme Court of Canada, the Court held that the arbitration panel:

... was correct to conclude that the substantive rights and obligations of the Human Rights Code are incorporated into each collective agreement over which an arbitrator has jurisdiction. Because of this interpretation, an alleged violation of the Human Rights Code constitutes an alleged violation of the collective agreement, and falls squarely within the Board’s jurisdiction. Accordingly, there is no reason to interfere with the Board’s finding that the subject matter of [the] grievance is arbitrable. The Board’s finding that the discriminatory discharge of a probationary employee is arbitrable is not patently unreasonable.

[Note: The union can be involved in a human rights dispute directly under the Human Rights Code as well. That will be dealt with in future posts. In this post, and the next two to follow, I will be reporting on disputes with human rights overtones that lead to an arbitration decision.]

In this post, I have summarized some 2012 arbitration decisions dealing with the issue of accommodating a disabled employee. In most cases, the employer will know that the employee is suffering from a disability -- a workplace injury or an extended absence from work due to illness. There are also occasions where an employer must be sensitive to the possibility that an employee, who is under performing or misbehaving, has a mental or physical disability.

If an employee is disabled, then an employer has a duty to accommodate that employee. This duty is not absolute, for example, an employer does not have to create a position for a disabled employee. The limit to the duty to accommodate is undue hardship. Sometimes the required accommodation can interfere with seniority or require a placement in a different bargaining unit. Therefore, unions also have a duty to co-operate in the search for appropriate accommodation. Finally, it should be noted that the disabled employee has a duty to consider a reasonable, but not necessarily perfect, accommodation.

The issues of interest in the summaries to follow are:

• Riverview Hospital: reinstatement was ordered enabling the grievor to access benefits under the collective agreement. However, this does not mean that the grievor is entitled to return to work until the employer is satisfied that the grievor is fit to return to work;

• Argus Carriers: the employer tried to accommodate the grievor’s disability but reached the point where it could no longer do so;

• X v. Y: this is an example where the arbitrator considered evidence of a possible disability before concluding there was just cause for dismissal; and

• Victoria Symphony Society: in this case, there was an extreme lack of trust between the parties and the grievor was reluctant to provide medical information. The Board found that the grievor’s dismissal was premature, causing the loss of an opportunity to explore accommodation possibilities.



I. British Columbia (Riverview Hospital) v. British Columbia Nurses’ Union, 2012 CanLII 24876 (BC LA)

Date: February 14, 2012 Arbitrator: Emily M. Burke

Grievance: reinstatement (clarification of December 2011 order that the grievor is to be reinstated; grievance allowed and grievor ordered reinstated.)

Summary

Background

The grievor had been dismissed as a result of an incident. In an arbitration decision issued in December 2011, the arbitrator concluded that the doctor’s opinion regarding the grievor’s PTSD:

… establishes the Grievor’s actions in this case to be non-culpable behaviour. Similarly the Grievor’s judgement in this case was impaired such that the decision to leave the patient by herself in North Vancouver and return to Riverview without her was for non-culpable reasons. This leads to the conclusion there was no just cause for the discipline and resulting termination of the Grievor.

The arbitrator had ordered reinstatement and left it to the parties to determine other kinds of remedies. The union sought immediate reinstatement. The employer sought additional medical information from various sources. The union told the employer that the grievor was able to return to work without restrictions or limitations. The union then forwarded medical information regarding the need for accommodation and a graduated return to work. For a variety of reasons, the employer had not reinstated the grievor.

Analysis and Decision

The arbitrator noted that the question of the grievor’s ability to return to work was not relevant to the issue of his reinstatement, and stated that:

…the Grievor’s reinstatement to employment is not conditional on establishing his fitness to return to work”. Rather, once reinstated to employment status, rights and obligations flow to both the Grievor and the Employer from that employment status. The grievor is able to access appropriate rights under the collective agreement as an employee and the Employer can exercise its rights to ascertain whether the Grievor is able to return to active employment and provide direct care.

The arbitrator agreed that the employer is entitled to satisfy itself that the employee seeking to return to work is fit to return to work. However, the arbitrator also found that the employer had not to date reinstated the grievor to employment status as it was ordered to do. (It appears that the need for this clarification was so that the grievor could obtain things like short-term disability benefits under the collective agreement.)

II. Sykes v Argus Carriers Ltd., 2012 CanLII 51400 (BC LA)

Date: June 14, 2012 Arbitrator: James E. Dorsey, Q.C.

Grievance: dismissal (this was a non-union situation; the employee complained about his dismissal under Part III, Division XIV of the Canada Labour Code. This decision was reported by CanLII as an arbitration decision. The complaint was dismissed because the employer had exhausted all reasonable accommodations.)

Summary

Background

This decision shows that there is a limit to the employer’s obligation to accommodate a disabled employee. The employee was hired in May 2001 and worked as a truck driver. He was viewed by the employer as “one of its most valuable drivers and a stellar employee”. Over the years, the employee required treatment and surgery for a pre-existing shoulder injury. The employer supported his various returns to work with modified work and lighter duties. However, the employee required more and more accommodations which restricted the trucks he could drive. He eventually was restricted to lifting and carrying less than 20 pounds. The employer dismissed the employee in June 2011.

Analysis and Decision

The employee felt that he should have been reassigned to a particular route. However, the arbitrator found that the employee could not do all of the essential duties on that route and stated:

For, the employer, the added cost of hiring or assigning another employee to do the local relief work Mr. Sykes could not do made that assignment and modification an undue hardship for the employer…. It was an undue hardship for the employer to assign him its Kelowna route within its operation. I find the employer’s non-culpable termination of employment of Mr. Sykes, after exhausting all reasonably available accommodations for him with the increasing limitations resulting from his should disability, was a justified dismissal. The complaint is dismissed.

III. X v Y, 2012 CanLII 42426 (BC LA)

Date: July 23, 2007 Arbitrator: John P. Sanderson, Q.C.

Grievance: Termination of employment (grievance dismissed)

Summary

Background

The grievor was a 23-year employee who worked as a janitor in the bakery department. He had a relatively clean record (some verbal warnings and one written warning, but none after 2000). Close to the production area of the bakery is a small room which has articles used by the janitor for cleaning. There is a sink used by the janitor to drain away paints, etc. Usually only the janitor uses this room. In July 2011, a female employee had reason to go to the room and discovered the grievor standing in front of the sink urinating. The employer conducted an interview. The grievor ultimately admitted (after being told there was a possibility of video evidence) that he had urinated in the sink and had done so three or four times in the preceding months. The employer asked if he had any medical issues that required accommodation and the grievor produced a doctor’s note. The employer ultimately concluded that the grievor had no medical condition that justified his behaviour and he was dismissed on September 20, 2011.

Analysis and Decision

At the hearing, the grievor explained the he had an urgent need to urinate and he didn’t think he could make it to the washroom. This was the same issue on other occasions when this happened.

The employer testified that store cleanliness and hygiene is of extreme importance to the employer and it provides extensive training on this subject. The note provided by the grievor’s doctor read “For medical reasons requires regular bathroom breaks” and the employer felt that the note did not identify any medical problem which might have affected this particular situation. Therefore, there was no medical justification for the conduct, which was a serious breach of the store’s rules regarding cleanliness.

After the grievor was dismissed, he went to a urologist who provided a report which identified “some nonspecific prostate firmness at [sic] significant urinary tract symptoms”. The grievor also testified that he saw his doctor regularly throughout the summer of 2011 but never mentioned the problem and he could not explain why he did not do so. As well, he could not recall having similar difficulties outside the workplace.

The arbitrator said his first task was to determine the reason for the grievor’s behaviour. The arbitrator also stated:

What are the employment consequences of such acts? In my view, this form of misconduct is so serious in an employment setting where proper hygiene is of such significance, that it undermines the viability of the employment relationship. This is not a new or abstract arbitral determination. In the food industry, the issue has had to be addressed in a remarkable number of occasions by arbitrators, including in this province, where an employee has chosen to ignore the basic standards of civilized behaviour in their workplace. The arbitral response to such misconduct has been consistent and in my view, entirely appropriate. In the food industry it is viewed as misconduct of a particularly serious nature.

The arbitrator noted the grievor’s long service and positive employment record, but did not feel they were sufficient, given the seriousness of the offence. As well, he noted the union’s arguments that the grievor had an unspecified medical condition that caused the urgency. However, the arbitrator held there was no objective medical evidence of such a condition. As well, the grievor did not raise the subject with his doctor or have the problem anywhere else but at work. The arbitrator concluded:

After a careful consideration of all of the evidence and in particular, the testimony of the grievor, I conclude that while he might have had urinary discomfort, that does not mean he had no choice but to urinate in the janitor’s room rather than get himself to the washroom. To the contrary; it is clear the grievor had a choice but he made the wrong choice, not once, but at least four or five times before he was found out.



In my view, the grievor’s choice was deliberate and reckless. He selfishly ignored the interests of his employer and his co-workers. He does not seem to understand the gravity of his actions. Other than saying he was sorry, he has not expressed remorse or acknowledged that his choice, as has termed it, may have been the wrong choice. His disregard of the rights of his employer and his co-workers to maintain the most basic standards of decency and respectful conduct in the workplace is disturbing. When he was discovered by Ms. A, instead of apologizing to her on the spot, he made a smart-ass remark about the “boys”. As for the legitimate interests of his employer, his misconduct put at serious risk the business of the organization had a customer passed by the open door and looked in while he was urinating. The impact on the welfare of the employer and his co-workers could have been devastating.



In the result, for the reasons noted above, I find no proper basis to interfere with the penalty imposed by the employer. The grievance is hereby dismissed.



IV. Musicians’ Association of Victoria and the Islands, Local 247 v. Victoria Symphony Society, 2012 CanLII 51817 and 2012 CanLII 51417 (BC LA)

Date: May 11, 2012, August 9, 2012 Arbitrator: James e. Dorsey, Q.C.

Grievance: dismissal (grievance allowed; compensation ordered but no reinstatement)

Summary

Background

The grievor had been a principal trumpet player for twenty-five years. He started experiencing some discontent with his employment causing him to take counselling and a sabbatical leave for one seaons. Then he required dental surgery which caused him to miss another season. Then he injured his hearing on the job. The grievor was initially turned down for WCB benefits and received sick leave benefits from his employer. He appealed the WCB decision and received benefits but did not reimburse the employer for his sick leave benefits. He was slow in providing medical information to his employer which raised some suspicions. As well, it made it difficult for the employer to plan staffing for each season. The employer’s director, stating that the grievor was the most uncooperative musician he ever met, dismissed the grievor in September 2009.

Analysis and Decision

The arbitration panel recognized the employer’s frustration with the grievor, stating:

He was taking every entitlement and benefit from their relationship, but not behaving as a cooperative team member of the orchestra and employee of the Symphony. In response to his injury and illness and the Symphony’s right and responsibility to monitor his absence, [the grievor] was pursuing a path of confrontation, not co-operation, utilizing the services of both his union and a privately retained lawyer.

That being said, the arbitration panel found that the dismissal was premature, stating:

The Symphony acted precipitously, prematurely and mistakenly when it decided it would deny sick leave because proof of illness was not provided and then dismiss [the grievor] for being absent without written permission. [The grievor] did not require the Symphony’s permission. As was well-known to the Symphony, he was absent due to a work-related injury and in receipt of workers’ compensation benefits and long-term disability benefits. This was his entitlement to be absent from work.

The employer did not have just a reasonable cause to dismiss the grievor. Due to his permanent disability, the grievor cannot be restored to his former position. The arbitration panel referred the matter back to the parties to determine “whether, on what basis and to what extent” the grievor is to be accommodated or compensated for the dismissal while absent from work due to a disability.

The parties were very far apart and could not agree on a remedy and the matter went back to the arbitration panel, which concluded that, although the dismissal was premature, it was not done in bad faith or in any manner that would justify an award for punitive damages. The grievor was unable to perform as a musician for three seasons prior to the dismissal and no loss of wages was caused by the employer’s decision to dismiss him. As a result, the grievor was not entitled to any further pension contributions or paid sick leave.

The arbitrators concluded that the loss to the grievor was “the loss of the opportunity to explore accommodation possibilities and possibly retain continuity of service and some benefits under the Master Agreement.” While the union had proposed a non-musical role for the grievor, the arbitration board found that there was not the requisite trust for such a role to be successful. The arbitration panel also noted that, although the premature dismissal was discriminatory, at some point, with the grievor being unable to perform as an orchestra musician and no other available employment, the employer could terminate the grievor for non-culpable absenteeism.

The arbitrators ordered $18,000 in compensation, less $4,104 in reimbursement to the employer.

Rate of pay for working on a statutory holiday

A brief and clear arbitration decision  by Arbitrator Colin Taylor on the rate of pay for a coal mine worker who worked on Christmas Day in December 2011 was issued on November 13, 2012.  It reminds us of the importance of negotiating precise collective agreement language, and of the need to make the resolution of disputes through labour arbitration more timely.  At least everyone in that bargaining unit will know what rules apply if someone workes this Christmas day.

For those interested in improving the process of labour arbitration, the Labour Law Subsection of the BC Branch of the Canadian Bar Association sponsored several panel discussions at their meetings this fall. 

A blog I'm recommending

http://wherq.wordpress.com/  some recent posts include:  Freedom of Speech in Communicative Capitalism, What kind of rights are workers' rights? and Economic Migration and Temporary Foreign Workers. 

What laws protect the right to engage in dissent?

Here's a free opportunity to hear legal experts.  
Join us for a Day of Dissent on December 7, as we examine rights under attack in Canada and the extent to which the right to engage in dissent is protected by Canadian and International law.


Speakers: Pearl Eliadis, Cameron Ward, Leo McGrady, Q.C., Gwen Brodsky, Matt Eisenbrandt, Fiona Koza, Jason Gratl and others.

Location: SFU Harbour Centre

515 West Hastings St., Vancouver, BC

Time: Friday, December 7, 1:00 to 5:00 p.m.


This event is free.

Online registration is encouraged but not required.

Presented by: Lawyers Rights Watch Canada; Amnesty International; BC Civil Liberties Association; Council of Canadians; and New Media Journalism Program, SFU Continuing Studies. Speakers and topics below.


Panel 1 – Local

o Leo McGrady QC – Cedar as Sister: Indigenous Law and the Common Law of Civil Disobedience.

o Rueben George and Phil Lane on moves to stifle First Nations opposition

o Cameron Ward: The right to be annoying: Lessons from the front lines, defending activists at Clayoquot Sound, APEC and elsewhere.

o Jason Gratl: Quiet Suppression of Quiet Sedition: Occupy in the Courts

Panel 2 – Global

o Matt Eisenbrandt - Obstacles to Holding Canadian Corporations Accountable for Abuses Abroad

o Gwen Brodsky on international monitoring bodies identifying Canada’s violations and making recommendations for compliance.

o Gail Davidson The Right to Dissent: International Law Guarantees

o Fiona Koza: Anti-mining activists experience violence for speaking out

Keynote Speaker: Advocacy and Dissent in Canada: The State of the Union

Pearl Eliadis will speak about the Voices-Voix Coalition's work in documenting attacks on civil society in Canada, as well as dissent and advocacy. Organizations whose views do not align with the government of Canada have found themselves vilified in the public sphere as "terrorists", money launderers and/or as working against Canadian interests. Case studies include approximately 35 reputable and prominent community-based and human rights organizations that have been defunded, a human rights defender placed under government surveillance, and at least three organizations whose charitable status has been attacked. These case studies are used to examine the emerging norms with respect to the enabling of civil society, as well as the impact on freedom of peaceful assembly, freedom of Association, and freedom of expression. The presentation will also examine parallel efforts to eliminate or suppress robust and reliable research in the public sector, knowledge management institutions, and efforts to fire or interfere with independent watchdog institutions and whistleblowers."

Pearl Eliadis, B. C. L., LL.B., B.C.L 0xon), human rights lawyer and lecturer in civil liberties at McGill University. Full Member of the McGill Centre for human rights and legal pluralism

Right to Strike--Lawyer Craig Bavis' report on the hearing before the Saskatchena Court of Appeal

Here's an update on the Saskatchewan right to strike case that was argued before the Saskatchewan Court of Appeal last week.  Counsel for the Saskatchewan Federation of Labour Craig Bavis of Victory Square Law Office provided the update.


The appeal consisted of a 5 judge panel ( Klebuc (Chief Justice), Richards, Ottenbreit, Caldwell and Heroufand), approximately 24 lawyers: 3 parties (the AG, SFL et al, and RWDSU), 4 union intervenors, 2 national intervenors (CCLA and CAUT), the AG of Canada, and approximately 12 employer intervenors including health authorities, crown corps, municipalities, and universities, and the Chamber of Commerce. The appeal record was approximately 19,000 pages, the common book of authorities over 200 authorities, and we filed a total of 21 intervenor and party facta. While there were dozens of arguments and perspectives on various issues, the three most significant issues were:


1. Is the right to strike a statutory or legislative dispute resolution system?

2. Is test for a violation of section 2 freedoms uniform or should the courts apply a different test, substantial interference, for breaches of 2(d)?

3. In applying the substantial interference test, does the court evaluate the overall impact of the restriction on an aggregate basis, or on an individual basis?

Arguments:
1. While there is no doubt that there was a freedom to strike at common law, the AG argued that the incorporation of the right to strike into the Wagner Act model, along with additional protections such as right to reinstatement at the end of a strike, transformed it into a derivative, statutory right. The SCC in Fraser at para 41 noted that 2(d) does not guarantee a “legislated dispute resolution mechanism”. Counsel for the AG consistently stated that Fraser said no “dispute resolution mechanism” which included strikes. The Unions argued that a “legislated dispute resolution ” meant a legislated process such as interest arbitration, mediation, or conciliation, which were not guaranteed, meaning that unions retained a right to strike.

2. The Unions forwarded an approach to evaluating restrictions on the right to strike under section 2(d) consistent with the approach taken by the courts in evaluating breaches of the freedom of religion and expression: a low threshold at the infringement stage with appropriate justification tests at section 1. It does not make sense that there should be different tests, that of substantial interference per Health Services or effective impossibility per Fraser, for associational freedoms than the other fundamental freedoms. Section 1 and the Oakes test, is where restrictions on the right to strike, such as in the case of essential services, should be justified. The AG strongly resisted this as contrary to Fraser and Health Services and the nature of the right to strike as merely derivative of freedom of association, like collective bargaining.

3. If the correct test for finding an infringement is that of “substantial interference”, the AG submitted that the Court need only to look and at the impact of the law at the macro level. If the majority of public sector unions achieved collective agreements under the legislation, then there was no substantial inference, even if some unions experienced difficulty. The Unions argued that the test must apply to each bargaining unit and if the right to strike of one union was substantially interfered with then the legislation was unconstitutional, regardless of the success of other unions.

The Court was well aware of the significance of this issue (given that they assigned 5 judges) and that there are similar right to strike cases going ahead with Air Canada and Canada Post and the back to work legislation brought by the federal government that will get to trial in Ontario in 2013. The Court will make this decision a priority, but did not commit to when it would issue a decision, likely March or April 2013.

(this post provided by Diane MacLean)

Telus Communications v. Telecommunications Workers’ Union, 2012 CanLII 24880 (BC LA)


Date: May 8, 2012 Arbitrator: Mark J. Brown

Grievance: written warning regarding failure to meet ongoing performance expectations; grievance allowed (13 day hearing)

Summary

Background

The grievor started working for the employer in 1976. She had two dependent children and an elderly mother living with her. She had been an excellent employee – receiving commendations from customers and corporate awards. She worked in customer service, including sales. Monthly records of employee performance were kept and targets were set, i.e., percentage of calls answered within a certain time period, call length, number of calls per day. Revenue targets were set and an employee is expected to at least reach a threshold (a percentage of the target). If an employee does not meet the threshold consistently (factoring out leaves of absence, sickness, vacation, etc.), the result is coaching. The employer has a nine-step plan to manage ‘gaps in performance’ and distinguishes between ‘culpable’ and ‘non-culpable’ gaps in performance. The first four steps are the same for both categories and include meetings of concern, coaching and counselling. If the performance gap is viewed as culpable, then the steps to follow include: a meeting of concern, a written warning, suspensions, and dismissal. If the performance gap is viewed as non-culpable, then the steps to follow include: more letters of concern, an alternate assignment, if a suitable position is available, and dismissal.

The arbitrator commented that much of the problem between the grievor and the employer arose because they had differing views about how to deal with customer service issues. The employer’s policy contemplated that if a customer calls with a problem, the employee takes the call as if it were a sales call. If the call is not going to generate revenue or it is a problem that would take more than 10 minutes to resolve, the employee is supposed to refer the issue to the appropriate department. Sometimes the call is because of a problem with an order taken by another employee. If it takes longer than 10 minutes to resolve the problem, employees are to e-mail the employer so the information could be used as a coaching tool for the employee who took the initial call. The grievor’s manager said she would get between three to five of these kinds of emails from the grievor compared to an average between zero and two from other employees. The grievor usually had the highest or second highest CST (the time it took to deal with the customer) and often the lowest number of calls per day.

The grievor’s manager reported that from July of 2008 to December 2009, she had several conversations with the grievor, advising her that her focus should be sales. The grievor would improve for a while but then revert back to focusing on customer service (taking full responsibility for a call rather than referring it to the appropriate department). Her manager also advised her several times not to give out her direct phone line or e-mail to customers unless a sale was possible and a follow-up call was necessary, but the grievor continued to give out her direct line and email address.

The employer issued letters to the grievor in October, November, December 2008 and February 2009 indicating that her expected revenue was below expectations. Her manager testified that the problem was linked to the grievor’s reluctance to transfer calls to another department.

May 13, 2009: the grievor was below threshold in February and April and above threshold in March. The employer issued a Bridge Letter – Final Letter of Concern in May 2009. This letter referred to the four earlier letters of concern and the multiple discussions regarding her performance and the need for immediate improvement. The employer then pointed out that her performance continued to be substandard, not showing “sufficient and sustained improvement” and that if there wasn’t this kind of improvement, the grievor could be subject to formal disciplinary action. The grievor made threshold in May 2009 but not in June 2009, so in July 2009, the employer delivered a written warning that a continued failure to meet these expectations would result in further discipline, up to and including dismissal. After this warning, the grievor made threshold for the next six months.

Analysis and Decision

The arbitrator started from the following premises:

• the employer is entitled to set objectives for the organization, in the area of revenue, sales, costs, etc.;

• the employer may set a strategic approach, i.e., focusing on revenue and sales over customer service;

• the employer may set objectives for employees, and for the purpose of this decision, the arbitrator assumed the objectives were reasonable;

The arbitrator decided it was appropriate to apply the criteria set out in Edith Cavell Private Hospital v. Hospital Employees’ Union, Local 180 (1982), 6 L.A.C. (3d) 229. These are the criteria an employer must satisfy if it seeks to discipline an employee for a non-culpable deficiency in job performance.

(a) Did the employer define the level of job performance required?

The arbitrator concluded that the employer did this by establishing key performance indicators.

(b) Did the employer establish that the standards were communicated to the employee?

The arbitrator concluded that the KPIs were clearly communicated. However, he noted that revenue was the only KPI that appeared to be of concern when Letters of Concern were sent out. The arbitrator noted that an employee was given a Letter of Concern when they did not meet threshold revenue, but the letter only referred to the target revenue. The arbitrator stated:

Therefore, while all the KPI’s were communicated to an employee, any Letters of Concern may not have been clear for several reasons. First, the letters referenced one KPI only. Second, the employee was issued the letter when threshold was not met and yet the letter never stated threshold. Third, the adjusted target was not referenced [for example, if an employee had been on vacation]. Accordingly, there existed a potential for confusion on the employee’s part as to exactly where the gap existed in performance requirements in comparison to actual performance.

However, the arbitrator noted that the grievor testified that she understood what the threshold was and understood its relationship to the target. Therefore, in this case, the potential confusion noted above did not exist.

(c) Did the employer show it gave reasonable supervision and instruction to the employee did it give the employee a reasonable opportunity to meet the standard?

The arbitrator concluded that the grievor “understood that the employer wanted her to take less time on calls, take more calls off the queue, and forward calls to other departments if a sales opportunity did not exist.

(d) Has the employer established an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job?

The employer did not conclude that the employee was incapable of performing her job and this is why it decided to take a ‘culpable’ approach and issue a written warning. The grievor met the target on several occasions, that is, she was capable of doing so. Therefore, the answer to this question is “No”.

The arbitrator then found that the letters were not issued in a consistent manner. For example, some employees who were below but close to the threshold did not receive letters while the grievor did. As well, there were some employees who did not meet the threshold two or more times and were not issued letters.

The arbitrator noted and concluded:

While the Employer may have had cause to issue [the grievor] a warning for insubordination based on the above, the Employer did not do so. Instead, the Employer decided to take the approach of issuing [the grievor] a warning letter for not meeting revenue targets. I conclude that the warning letter is not justified as the steps in the performance management process have not been consistently applied.

[Note: the final Edith Cavell factor is that the employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in dismissal. It was not necessary for the arbitrator to deal with this factor, because the employer did not satisfy the fourth factor.]

Termination overturned where employee disciplined more harshly than other employee in similar circumstances

(this summary provided by Diane MacLean)

 Asco Aerospace Canada Ltd v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Shopmen’s Local No. 712, 2012 CanLII 5488 (BC LA)

Date: January 27, 2012 Arbitrator: Ronald S. Keras

Grievance: Termination (grievance allowed)

Summary

Background

The grievor, a machinist, had been working for the employer and its predecessor company since 1989. The employer terminated his employment on November 2, 2011 due to “work quality issues”. This occurred, according to the letter of termination “after multiple warnings, written and verbal” and three events in the month of October. These events had to do with making serious errors and not letting his supervisor know right away. At the hearing, the employer’s witnesses testified that they had lost trust and faith in the grievor. The employer also provided two performance reviews which showed above average performance.

The grievor testified that he did not try to hide his mistakes and that he was not asked for his side of the story at the termination meeting. He said he always talked to his partner but was not aware that he had to talk to his supervisor over every little issue.

The employer argued:

… with the following facts: three incidents of discrepancies, the Employer having spoken to the Grievor three months earlier, the Grievor being aware of heightened concerns about safety and quality, the Grievor not recording problems, the Grievor giving implausible theories and the Grievor minimizing discrepancies, that the Employer had lost their faith in the Grievor. The Employer, bargaining unit, and non-bargaining unit employees have lost their faith in the Grievor as the Grievor is unable or unwilling to address these issues. The Employer described the Grievor’s testimony as self-serving; that he said he was happy with the new house rules, but that it is or was clear that he chose not to follow the rules and not to report deficiencies to his Shift Leader or management.

The Employer pointed to case law concerning repeated incidents of inattention; serious repetitive errors; skilled job quality issues; skilled employees held to a higher standard; case law about deliberate concealment of discrepancies; discipline based on a case by case inquiry; and a case involving reinstatement to a different position.

In its arguments, the union criticized the employer’s investigation process which was described as “a series of incorrect assumptions, a case based on erroneous assumptions with the most serious discipline”. As well, a “minimum level of fairness” required giving the grievor a chance to explain himself. The union also compared discipline other employees received for similar infractions and argued that the grievor had been singled out and treated differently.

Analysis and Decision

The arbitrator referred to the three questions set out in the Re Wm. Scott & Co. and Canadian and Allied Workers Union, Local P-162, [1977] 1 C.L.R.B.C. 1: Are there grounds for discipline? Is discharge appropriate in the circumstances? If not, what is the appropriate disciplinary response?

The answer to the first question was “yes”; there was cause for some discipline. The real issue is whether discharge was appropriate in the circumstances. The arbitrator agreed with other arbitrators that the progressive discipline approach is “dependent upon the nature and seriousness of the breach, the culpability of the employee and whether or not that employee had shown remorse or responsibility for their actions”. Was the grievor’s culpability greater than other employees?

In this case, the union argued that other another employee received written warnings and a suspension for the same kinds of things that the grievor was reported to have done. However, the employer argued that the grievor had four incidents in the space of four months and tried to hide them and this made the situation different and justified termination.

The union had provided an example of another employee with a record of warnings and a suspension, who tried to fix a problem without telling anyone. The arbitrator stated:

In the instant case [the grievor] was aware of the House Rules and the emphasis on procedures, however he was shocked at his termination meeting as termination was quite unexpected. In this case "Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment" (Wm. Scott). In my view the treatment of [the other employee] was more in line with the “consistent policies of the Employer”.

The arbitrator considered cases where employees had concealed defects where the results could have been catastrophic, and where a dismissal would be upheld. However, in this case, although the grievor did not follow the proper procedure (a serious offence), he did not completely conceal discrepancies in that he told his co-worker on the afternoon shift. The arbitrator also noted that the grievor’s record could not be described as abysmal – “it was similar to a number of other employees and better than some.” It also included two above average performance reviews. As well, the evidence did not show that the grievor was aware that another ‘quality’ issue could lead to his dismissal.

The arbitrator then considered whether the employment relationship was capable of restoration and stated:

There comes a point, with some employees, where the inescapable conclusion is that the employment relationship cannot be restored. In the Cominco case (supra), the Grievor had been disciplined six times, including a thirty-day suspension. That relationship was at an end. In the current case the Grievor, prior to discharge, had a record which was quite similar to a number of other employees. There was no evidence that he had ever been suspended. Some other employees had been suspended. He had a number of warnings, verbal and written, which were stale-dated, very similar to other employees. He had a current August 4th, 2011 - Written Instruction Warning Notice. That was the only live discipline on file at the time of his termination.

The problem for the employer’s case was in three primary areas:

1. A careful review of the employer’s history shows limited discipline for employee discrepancies. There was a suspension and warnings, but there did not appear to be any other dismissals.

2. Progressive discipline principles proceed on the theory that if employees are warned of behaviour and performance issues, they will have an opportunity to improve. Here the grievor was not given an opportunity to correct his work performance or explain his actions.

3. The employer reached some conclusions without a factual basis for them.

The arbitrator reviewed the events one more time and concluded that there was some level of concealment in the grievor’s conduct. The arbitrator concluded:

On a careful review of the evidence, the testimony and the submissions of counsel, the Employer’s case cannot succeed. The Employer arrived at a decision to terminate the Grievor’s employment in which some considerations were based on conclusions that were simply not correct. The Employer’s sanction of termination was not consistent with sanctions for other employees involved in similar conduct.

In the result, I find that the sanction of termination is excessive in the particular circumstances of this case. In cases such as this the appropriate corrective action program is one of progressive discipline for reasons well stated by the Arbitrators referred to in the preceding case law. One particular purpose of the progressive approach is so that an employee knows and understands the eventual consequence of not improving behaviour or, in this case, not improving work quality and following procedures. In this case, termination is not “in accord with the consistent policies of the employer” (Wm. Scott).

The arbitrator ordered that the grievor be reinstated with no loss of seniority and the termination be replaced with a ten-day suspension. Further the arbitrator stated:


[The grievor] will be responsible for rebuilding the trust in the employment relationship primarily by respecting the authority of Shift Leaders and management in a concrete way, such as being vigilant in following procedures and restricting his own judgment to permitted judgments and in particular, involving Shift Leaders in any decision(s) associated with a discrepancy or a suspected discrepancy.

Human Rights Tribunal rules that Thrifty's discriminated on the basis of disability

Mackenzie v. Jace Holdings is a decision issued  last week where the Human Rights Tribunal upheld a complaint by a former employee of Thrifty's who had suffered from depression most of her life that she had been improperly dismissed because of her disability.    This is a case that illustrates that an employer has a duty to inquire into whether an employee's inappropriate behaviour is linked to a mental health issue.  Where the employer fails to make such inquiries and proceeds to terminate or otherwise discipline an employee it runs the risk of being found in breach of the Human Rights Act and of failing to accommodate the disabled employee. 

Investigations of employee misconduct must be fair and impartial--BC Suprme Court

In a decision earlier in 2012, Vernon v. BC Liquor Distribution Branch the BC Supreme Court highlighted the importance of fair and impartial investigations into employee misconduct.  Although this did not involve a unionized employee, the court's comments are applicable.  The court's criticism of the investigation process speaks for itself and starts at paragraph 278 of the decision:

[278] The investigation was flawed from beginning to end. It was neither objective nor fair.


[279] Because of her prior dealings with Ms. Vernon, Ms. van der Boom should not have conducted it. Once she concluded the Complainant was credible, Ms. van der Boom lost all objectivity. She became the prosecutor, not the objective investigator. She added Ms. Catamo-Meyer to the March 9 List because she believed she would provide damaging information. She did not bother to interview Ms. Chan who both the Complainant and Ms. Vernon stated witnessed two of the incidents. Her oral reports of her interview with Ms. Vernon are inaccurate and misleading. She told Ms. Ferrara and Mr. Branham that Ms. Vernon was denying all allegations when her notes of the meeting clearly show otherwise. The Recommendation Memo is replete with inaccuracies.

[280] Ms. van der Boom is, however, not alone in rushing to judgment. Within 48 hours of being asked to investigate, Mr. Sethi had recommended Ms. Vernon’s dismissal. He made his recommendation based on his interviews, the March 1 Letter and the information he was given that Ms. Vernon did not acknowledge any wrongdoing. He knew that Ms. Vernon had no opportunity to respond to the information developed in the interviews. He knew that he had asked few questions concerning the specific allegations in the March 1 Letter.

[281] Similarly, Mr. Branham, Mr. Zelenika and Ms. Ferrara were prepared to terminate a 30-year employee with a spotless record based on Mr. Sethi’s report. Mr. Zelenika and Ms. Ferrara both knew that Ms. Vernon was upset at the March 25 interview, yet they blindly accepted without question that she had denied all the allegations.

[282] If this was an administrative law case, the LDB’s decision to terminate Ms. Vernon would be quashed as a breach of natural justice. This is, however, not such a case. Although Ms. Vernon is a public sector employee, public law duties of procedural fairness do not apply. Ms. Vernon’s relationship with the LDB is contractual. Her claim must be decided on the principles that govern all private law employment relationships: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Regardless of the flaws in the investigation, if the LDB had cause they were entitled to dismiss Ms. Vernon without notice

The court found that the employer had no cause to dismiss Ms. Vernon and awarded her 18 month's salary in lieu of  notice.  The court went further and awarded  $35,000 in aggravated damages and $50,000 in punitive damages against the Liquor Distribution Branch.

Employee privacy--reasonable expectation of privacy in the workplace

The Supreme Court of Canada just issued its decision in R.v. Cole  http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12615/index.do.  Below are the relevant quotes from the decision headnote:


 The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer.  He was permitted to use his work-issued laptop computer for incidental personal purposes which he did.  While performing maintenance activities, a technician found on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage female student.  The technician notified the principal, and copied the photographs to a compact disc.  The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second disc.  The laptop and both discs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes.  The trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.  The summary conviction appeal court reversed the decision, finding that there was no s. 8 breach.  The Court of Appeal for Ontario set aside that decision and excluded the disc containing the temporary Internet files, the laptop and the mirror image of its hard drive.  The disc containing the photographs of the student was found to be legally obtained and therefore admissible.  As the trial judge had wrongly excluded this evidence, the Court of Appeal ordered a new trial.

Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected. Ownership of property is a relevant consideration, but is not determinative. Workplace policies are also not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation. While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely. A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state intrusion only under the authority of a reasonable law.




The police in this case infringed the accused’s rights under s. 8 of the Charter. The accused’s personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core. Pulling in the other direction are the ownership of the laptop by the school board, the workplace policies and practices, and the technology in place at the school. These considerations diminished the accused’s privacy interest in his laptop, at least in comparison to a personal computer, but they did not eliminate it entirely. On balance, the totality of the circumstances support the objective reasonableness of the accused’s subjective expectation of privacy. While the principal had a statutory duty to maintain a safe school environment, and, by necessary implication, a reasonable power to seize and search a school-board issued laptop, the lawful authority of the accused’s employer to seize and search the laptop did not furnish the police with the same power. Furthermore, a third party cannot validly consent to a search or otherwise waive a constitutional protection on behalf of another. The school board was legally entitled to inform the police of its discovery of contraband on the laptop. This would doubtless have permitted the police to obtain a warrant to search the computer for the contraband. But receipt of the computer from the school board did not afford the police warrantless access to the personal information contained within it. This information remained subject, at all relevant times, to the accused’s reasonable and subsisting expectation of privacy.

Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. The conduct of the police officer in this case was not an egregious breach of the Charter. While the police officer did attach great importance to the school board’s ownership of the laptop, he did not do so to the exclusion of other considerations. The officer sincerely, though erroneously, considered the accused’s Charter interests. Further, the officer had reasonable and probable grounds to obtain a warrant. Had he complied with the applicable constitutional requirements, the evidence would necessarily have been discovered. Finally, the evidence is highly reliable and probative physical evidence. The exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process. The admission of the evidence would not bring the administration of justice into disrepute and therefore the evidence should not be excluded.

BC Supreme Court upholds dismissal of s.12 complaint

The BC Supreme Court refused to overturn a decision of the LRB dismissing a s.12 complaint against the BCGEU.  In Mazerolle v. Labour Relations Board the BCGEU settled a grievance but the grievor changed her mind right after the settlement.  BCGEU refused to renege on the settlement and the court found that it wa reasonable for the LRB to conclude that broader labour relations reasons were proper for the BCGEU to consider in deciding not to renege on the settlement with the employer. 
There are some good lessons for stewards and union representatives from this case.  The most important one is to take good thorough notes of the discussions with grievors throughout the course of settlement negotiation and to keep the grievor informed throughout the whole process.

(Re)introducing Diane MacLean

Diane first started contributing to this blog about a year ago and has now become a regular and significant contributor, so I think it's appropriate to re-introduce her to you.    Below is the what I posted on November 14, 2011:

With this posting I'd like to introduce Diane MacLean who has very kindly offered to help keep this blog up to date by reviewing BC arbitration awards and Labour Relations Board s.99 reviews.


Diane MacLean attended S.F.U. and earned a B.A. and M.A. in economics. Her major interests were labour relations and the economics of poverty and discrimination. Diane taught economics at the college and university level before attending law school at U.B.C.

Prior to working for the provincial government, Diane worked as an economic researcher and writer. For example, she researched and prepared briefs for a group of arbitrators regarding proposed changes to the Labour Relations Code and for a group of trade union women regarding proposed changes to the Employment Standards Act. She also did legal research for law firms specializing in labour law.

Diane then spent many years as an Employment Standards Officer and Industrial Relations Officer for the B.C. Ministry of Labour, investigating and mediating complaints under the Employment Standards Act and the Human Right Code, conducting certification and decertification votes under the Labour Relations Code, and conducting grievance mediations for the B.C. Collective Agreement Arbitration Bureau. More recently, she was a Member of the B.C. Human Rights Tribunal for five and one-half years. At present, Diane is self-employed, working as a mediator and doing legal research and writing in the areas of labour, employment and human rights.   Welcome Diane!

Discipline and Discharge arbitration updates

Guest Blog by Diane MacLean

Discipline and Discharge--BC Arbitration Awards

Arbitration Summaries, October 9, 2012


In the last post, the Wm. Scott case (a 1976 decision of the B.C. Labour Relations Board) was discussed. The Board found that, in considering dismissal and discipline cases, an arbitrator must ask three questions: has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss or discipline the employee an excessive response in all of the circumstances? If so, what alternative measure should be substituted as just and equitable? When considering the second question, the Board referred to the factors set out in a 1964 Ontario arbitration panel decision (United Steelworkers of America, Local 3257 v. Steel Equipment Co. summarized below). Since these factors are often referred to, I have summarized this case below, in addition to summaries of six recent arbitration decisions.

Next post: decisions where an employee was disciplined or discharged for safety reasons and one decision where an employee was warned for not meeting performance expectations.


United Steelworkers of America, Local 3257 v. Steel Equipment Co. [1964] O.L.A.A. No. 5, 14 L.A.C. 356

Arbitrator: R.W. Reville, E. Park and A.A. White (dissent)

Background

The grievor was a 12-year employee and had received only one written warning. The grievor had difficulties setting up his machine and falsified his records on two separate days. The falsification arose from his desire to conceal the delay that resulted from having to re-set the machine.

Analysis and Decision

The arbitration board, in considering factors to consider which should mitigate the penalty imposed on the grievor, referred to other arbitration cases and identified the following factors:

1. The previous good record of the grievor;

2. The long service of the grievor;

3. Whether or not the offence was an isolated incident in the employment history of the grievor;

4. Provocation;

5. Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated;

6. Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances;

7. Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination;

8. Circumstances negativing intent, e.g., likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it;

9. The seriousness of the offence in terms of company policy and company obligations;

10. Any other circumstances which the board should properly take into consideration, e.g., (a) failure of the grievor to apologize and settle the matter after being given an opportunity to do so; (b) where a grievor was discharged for improper driving of company equipment and the company, for the first time, issued rules governing the conduct of drivers after the discharge, this was held to be a mitigating circumstance; (c) failure of the company to permit the grievor to explain or deny the alleged offence.

The arbitration board found that the previous conduct and work record of the grievor was satisfactory. The falsification of records was an isolated incident in his work career. As well, job opportunities in this particular setting are more limited than in larger centres and it would be more difficult for the grievor to obtain alternate employment.

However, falsification of records goes to the root of the honour system of recording production. However, the grievor did not reap “ill-gotten gains” from his dishonesty compared to other cases. The arbitration board concluded that there were sufficient factors in this case to mitigate against the severe penalty of discharge, substituting an unpaid suspension until the next regular working day following receipt of the award, but without loss of seniority.

Current BC Decisions

Southern Railway of British Columbia Ltd. v Canadian Union of Public Employees, Local 7000, 2012 CanLII 51808 (BC LA)  http://canlii.ca/en/bc/bcla/doc/2012/2012canlii51808/2012canlii51808.html

Arbitrator: Rod Germaine

Background

The grievor had worked for the employer for 12 years and had a discipline-free record. He injured his ankle on June 7, 2011, but finished his shift. He saw his doctor right away and was advised to be off work until June 13 when he was capable of light duties. However, the grievor did not follow the employer’s requirements regarding the forms that his doctor was to complete and otherwise follow the employer’s return to work program.

The employer suspected the grievor was malingering and ordered an investigation, including surveillance. The employer dismissed the grievor by letter which stated, in part:

"Based on our investigation, we are satisfied that you have not been truthful with us with regard to the nature and severity of your injury, nor with regard to your interaction with you physician. Further, we have concluded that you refused to attend work in circumstances where, even with your injury, you could have performed productive work, which was offered to you."

Analysis and Decision

The arbitrator applied the Wm. Scott analysis. There were a great many conflicts in the evidence and the arbitrator had to consider the reliability of the grievor’s evidence. The arbitrator dealt with the three grounds of discharge as set out below.

• Was the grievor untruthful with regard to the nature and severity of his injury? The arbitrator concluded that the grievor was truthful regarding his injury.

• Was the grievor untruthful about his interaction with his physician? The arbitrator found that the grievor was not truthful with his physician when he said he had been assigned certain light duties.

• Finally, did the grievor refuse to perform light duties that were assigned to him and that he was capable of performing? The arbitrator found that the grievor was not capable of performing any duties.

The arbitrator commented that although the employer only established one of the three grounds for discharge, it is clear that the grievor was not prepared to follow the modified duties program and in fact, acted to circumvent it. The grievor misrepresented the light duties offered to him when he was examined by his doctor. The arbitrator also did not accept that the grievor was not familiar with employer’s modified duties program, especially since the company had delivered it to his home before his first doctor’s visit after his injury. As well, the grievor was not firm in asking his doctor to fill out the required forms.

The union argued that the grievor had no motive to be untruthful. The arbitrator had this view of what was going on:

"The grievor understood the light duties offered by the Company entailed a day shift schedule from Monday to Friday. He wanted to remain on his shift schedule and weekly shift pattern for the dual purpose of allowing him to cover his child care needs and preserve his days off for the Winnipeg trip. To accomplish these purposes, he opted to manage his absence from work himself rather than submit to the Company's modified duties program. I find this was his motivation for being dishonest with Dr. Seaman and in his evidence in this proceeding."
...
"To sum up, then, the Company has established only part of one of the three grounds for discharge. But his misconduct reflects a breach of his duty to report for work which the grievor attempted to defend, and continues to defend, by means of disingenuous assertions about his understanding of the modified duties program. There is no question the grievor provided just cause for some discipline. If the grounds on which he was discharged did not expressly include a breach of the duty to report for work, they implied such misconduct and the real nature of the grievor's offence is relevant at the second stage of the just cause analysis in any event."

The arbitrator then addressed the issue of whether discharge was an excessive response in all of the circumstances. The arbitrator referred to the “venerable” decision in Steel Equipment Co. Ltd. (1964), 14 LAC 356 (Reville) and said the first consideration is the seriousness of the immediate offence which precipitated the discharge. The arbitrator felt that there were key aspects of the offence which mitigated the seriousness of the offence:

• it did not entail any theft of time (The injury was genuine and turned out to be more serious than initially diagnosed, the company’s suspicions regarding malingering were based on an uninformed and unfounded judgment, and the treatment prescribed by the doctor precluded him from even performing light duties.); and

• the breach of duty to report for work was the refusal to comply with the employer’s modified duties program, it was not a refusal to work when the grievor was capable of it.

The arbitrator found that this was still a significant employment offence and commented:

The irony is that, had the griever insisted that [the family doctor] complete the limitations form on June 7 and immediately disclosed his circumstances to [his supervisor], the probability is that the Company would have accommodated his child care needs as well as his forthcoming weekend trip to Winnipeg.

The arbitrator then considered whether the misconduct was intentional and planned or an uncharacteristic, spur-of-the-moment reaction. The arbitrator concluded that it was intentional but not premeditated … “a course of action which grew more complicated and onerous as events unfolded”. He noted that the company’s reaction also took a momentum of its own.

The arbitrator found that the grievor’s history weighed in his favour, that is, twelve years without previous discipline. However, the grievor did not acknowledge any wrongdoing, which reinforces the seriousness of his misconduct and provides the company with its strongest argument for the appropriateness of discharge.

The arbitrator said that the parties’ failure to address other outcomes (between the dismissal and the union’s suggested warning letter) was an error. The arbitrator was not persuaded the employment relationship was beyond repair, remarking: “The offence was a refusal to comply with a Company policy governing return to work from injury, not theft of time or any of the other “very serious forms of misconduct, such as threatening and harassing, actually physically assaulting a co-worker, customer or member of management”. And to repeat: the injury was real.”

The arbitrator found that the grievor should be given an opportunity to restore the Company’s trust in him and substituted a one-month suspension for the dismissal, but no compensation for income lost.

Interstate Hotels and Resorts (Hilton Metrotown Hotel) v UNITE HERE, Local 40, CanLII 51801 (BC LA)  http://canlii.ca/en/bc/bcla/doc/2012/2012canlii51801/2012canlii51801.html

 Arbitrator: Stan Lanyon

Background

The grievor, a nine-year employee, worked as a server and later a banquet captain. His dismissal involves the misuse of float money, used to make change for guests. The floats were kept in a locked safety deposit box behind the front desk and each employee who has a float has the only key to the box. There was a House Bank Contract and Cash Handling Policies and Procedures. The Contract made the employee responsible for the float, and to keep it in the assigned box and to keep the key in his possession at all times. The Policies and Procedures required the employee to secure the float in the box, to never leave the cash unsecured or unattended, and to report overages and shortages. The float was not to be converted to the employee’s own use or for any other purpose (this would result in immediate termination).

A manager asked the grievor to count his float and he said he couldn’t because he had lost his key several months before. He said that he had reported the loss and that he was using his own money for the float. After that, the grievor “dropped off” his float. When the general manager found out how long the key had been lost, he approached the grievor’s managers to see if they knew about the lost keys and they did not. At a discipline meeting, the grievor said he did not know if the box contained the float. When a locksmith opened it, there was no money in it, just a note with the amount of $310 written on it in the grievor’s handwriting. The grievor apologized for not following procedures. However, he took no responsibility for the lost key. The return of the float was suspicious, as it implies monies have been moved from the premises and mingled with personal money. The grievor was dismissed in June 2011 for mishandling funds.

At the hearing, the grievor denied that he had received a copy of the cash handling policies and procedures and that he didn’t know he could be dismissed for mixing personal money with hotel money or taking money off the premises. He kept his float in a plastic bag for six months, hiding in various places in the hotel. He also admitted mixing his own money with the hotel’s money.

Analysis and Decision

The arbitrator reviewed the evidence and the arguments of the employer and the union and concluded that the grievor grossly mishandled the hotel’s money. He was not forthright in his evidence and did not take responsibility for his breach of the hotel’s cash handling policies and procedures. There was a fundamental breach of trust between the employer and the grievor and the employer has just cause for dismissal.

Teamsters, Local Union No 213 v Canplas Industries Ltd, 2012 CanLII 51809 (BC LA) http://canlii.ca/en/bc/bcla/doc/2012/2012canlii51809/2012canlii51809.html

Arbitrator: James Dorsey, Q.C.

Background

The grievor had only been employed for one year. He experienced back pain in the spring of 2011 and sought medical attention over the next few months. He missed some work in the fall of 2011. He was not eligible for Worksafe benefits, so he applied for short-term disability benefits under his employer’s plan with an insurer company. The claim took some time to process and the grievor became frustrated. In one of his calls to the insurer, he used the “f” word with an employee and the call was terminated. This was reported to the employer’s human resource manager and the grievor was dismissed. The arbitrator noted that the employer did not speak to the grievor or a union representative and he had no prior warning he was no be dismissed. He did not deny using the “f” word but he said the insurance company employee had been rude to him. He was shocked that no one had asked or given him a chance to tell his side of the story before he was dismissed.

Analysis and Decision

The arbitrator found that the grievor was justifiably frustrated; the insurer had not met its own standards for timely processing and communications about a claim. The grievor was assertive but not immediately rude or obnoxious to the insurance company employee. The arbitrator noted that the grievor accused the insurance company of “dicking him around” but that she did understood that his message was not personal or sexual. As well, the arbitrator found that the grievor did not say “go fuck yourself”; rather he said there was no “fucking reason” to deny his claim.

In regard to the employer’s investigation and actions, the arbitrator commented:

"It appears the employer failed to fully appreciate its responsibility under the collective agreement and the extent to which [the grievor] and the union could hold the employer accountable for its decision-making through grievance-arbitration. If it had, it is likely the employer would have spoken to [the insurer’s employee] and fully investigated the reported incident and circumstances before acting. The employer knew nothing other than the words of [the insurer’s employee] e-mail, but now relies on what it learned through the efforts of counsel in preparation for the arbitration and the disclosures from [the insurer’s employee] in her file disclosure and testimony on the day of the hearing.

"There was an extended conversation between [the grievor] and [the insurer’s employee] that became progressively more heated and ended when [the grievor] challenged the decision to deny his claim. It ended when he said there was “no f****** reason” to deny his claim. I find that in the context, his use of the “f” word was directed at Manulife with which he had experienced frustration, delay and unfulfilled expectations. It was not directed to a person to whom he was speaking for the first time. It was a frustration driven aberrant use of inappropriate language that he had not previously used with [other Manulife employees] and that he did not use in his later conversation with [the insurance company employee]. There is no evidence he used this or similar language in the workplace."

The arbitrator found that the employer should have used progressive discipline and should have warned the grievor about the future consequences of repeat behaviour. Dismissal was excessive in all of the circumstances and the appropriate alternate measure was a disciplinary written warning. The grievor was to be reinstated without loss of seniority and was entitled to compensation for lost wages and benefits.

Mainstream Association for Proactive Community Living v British Columbia Government and Service Employees’ Union, 2012 CanLII 51819 (BC LA) http://canlii.ca/en/bc/bcla/doc/2012/2012canlii51819/2012canlii51819.html

Arbitrator: Vincent L. Ready

Background

A co-worker alleged that the grievor, a seven-year employee, was behaving in a sexually inappropriate way with a female group home resident. The employer investigated the allegation and then dismissed the grievor in April 2008. An arbitrator was appointed in March 2009 and mediation took place in November 2009. The hearing was set for June 2010, but in May 2010, the grievor was arrested and charged with the incident and the union applied for an adjournment, which was denied. The union appealed this decision and the B.C. Labour Relations Board upheld the arbitrator’s decision. The hearing was scheduled for April 29, 2012. In the meantime, the criminal trial took place and the grievor was convicted of sexual assault. The union then applied for another adjournment of the hearing. (The union had decided not to proceed to arbitration and was giving the grievor an opportunity to appeal this decision internally.) At the same time, the employer applied for a summary dismissal of the grievance based on the criminal conviction.

Analysis and Decision

The arbitrator decided it was appropriate to grant the employer’s application for summary dismissal of the grievance, accepting the employer’s view that it would be an abuse of process to relitigate this kind of issue. Further, the arbitrator stated:

"…the Employer had just cause for the dismissal of the grievor since the criminal conviction based on precisely the same incident represents an uncontestable response to that first Wm. Scott question."

In regard to the second Wm. Scott question (whether the discipline imposed was excessive), the arbitrator referred to the Supreme Court of Canada’s decision in Toronto (City) and C.U.P.E. Local 79, [2003] S.C.J. No 64 where the Court pointed out “the abuse of process that would result in a situation where a convicted sex offender would be reinstated to his employment and work with the very vulnerable people he was convicted of assaulting”. The arbitrator found the parallels in the Toronto case to the present case striking and said it would be unethical to expose other clients to that harm. The arbitrator concluded:

"… there is simply no evidence which could be led by the grievor that could convince me on these very unique facts that the dismissal represented an excessive response."


Molson Canada v Brewery, Winery and Distillery Workers’ Union, Local 300, 2012 CanLII 42424 (BC LA) http://canlii.ca/en/bc/bcla/doc/2012/2012canlii42424/2012canlii42424.html

Arbitrator: Emily M. Burke

Background

The grievor, an employee with more than 30 years of service, was issued a one-day suspension, a three-day suspension, and finally dismissed on August 14, 2009. The grievor reported a workplace injury but failed to provide medical documentation or co-operate with the employer’s light duty program. The employer arranged for video surveillance and concluded that the grievor was capable of performing light duties. When faced with this evidence, the employer alleges that the grievor continued to lie to and attempt to deceive the employer. In the dismissal letter, the employer explained the reason for the discipline as follows:

"In view of all of the above, the Company has concluded that you were dishonest with the Company and the WorkSafe BC in connection with your claims that you were physically incapable or performing any work related duties to the extent of even light sedentary duties. You had a number of opportunities to tell the Company the truth about your physical capabilities during the period July 2 to 22. The meetings with you on July 23rd and 24th were yet other opportunities to be truthful with the Company. You chose to misrepresent your physical capabilities and you continued to be untruthful and deceptive with the Company."

The employer viewed the grievor’s conduct as a fundamental breach of trust and dismissed her. The grievance was with respect to a one-day suspension (insubordination), and three-day suspension (failing to notify superior prior to leaving the employer’s premises), and the dismissal.

There was a 25-day hearing resulting in a 65 page decision.

Analysis and Decision

A critical issue in this case was the grievor’s credibility and the arbitrator concluded, “Much of the Grievor’s testimony on pertinent matters did not accord in a realistic way with the preponderance of probabilities.”

In regard to the one-day suspension, the arbitrator concluded that the grievor was given a clear direction which she refused to follow. This behaviour met the elements of insubordination and the employer had just cause to discipline the grievor and  a one-day suspension was not excessive in the circumstances.

In regard to the three-day suspension, the arbitrator gave the grievor the benefit of the doubt because she left work after receiving bad news about a family member’s illness and was upset. In the circumstances, the arbitrator found that the grievor’s conduct attracted discipline but that a three-day suspension was excessive in the circumstances. The arbitrator substituted a written warning.

Finally, in regard to the dismissal, the arbitrator first concluded that it was reasonable in all of the circumstances for the employer to have requested surveillance and that the surveillance evidence was admissible. In regard to that evidence, the arbitrator stated: “The reality is the Grievor was seen performing activities that based on what she reported to her doctors would have expected to be painful and limited.”

The arbitrator concluded:

"Ultimately a review of the evidence leads me to conclude while the Grievor no doubt suffered some form of injury as confirmed by the MRI, she exaggerated her symptoms and through omission was not forthright with her doctors about her job duties and capabilities. It has not been easy to reach this conclusion but I find it unavoidable. The Grievor’s fundamental problem was to in effect claim complete incapacity due to her injury by her refusal to communicate or discuss light duties as requested by the Employer. She shifted responsibility to her doctors without providing appropriate information. That information included her job duties and her view as reflected in her own notes of July 2, 2009 that she could return to work with the job duties in the trainee/shipper position.
…

"While the Grievor may not have believed she was being less than forthright, when measured against all the testimony, including her own doctors, it is clear her view of matters is clouded by anger with the Company which caused her to exaggerate her symptoms to the point it must be considered dishonesty. This problem was peppered throughout her testimony which affected her credibility in this case. The Grievor also would not accept other views; in particular those of the Company on matters associated with the First Aid duties."

The arbitrator found that the employer had demonstrated cause for discipline and then considered whether dismissal was excessive in all of the circumstances. The arbitrator was not convinced that the grievor’s behaviour would change if she were reinstated. Although the grievor was a senior employee, the nature of her most recent disciplinary infractions demonstrated a fundamental breakdown in the trust necessary to build a productive employment relationship. Therefore, dismissal was not excessive in this case.

Coast 2000 Terminals Ltd. v Teamsters Local Union No. 31, 2012 CanLII 51403 (BC LA) http://canlii.ca/en/bc/bcla/doc/2012/2012canlii51403/2012canlii51403.html

Arbitrator: Christopher Sullivan

The grievor, a four-year employee, was dismissed in July 2010. In addition to consider his disciplinary record, the employer focused on two events in early July 2010.

In the first incident, the grievor did not show up for his scheduled 7:30 a.m. to 4:00 p.m. shift. When his supervisor phoned him, the grievor was on his way to work, saying he thought his shift started at 8:30 a.m. that day. At 4:00 p.m. the foreman on duty (who was unaware the grievor had been late) asked the grievor if he was going to stay and work and help him and a co-worker. The grievor said it wasn’t busy and called it a day. Therefore, he only worked (and was paid for) seven hours, rather than eight hours that day.

The second incident occurred when the foreman asked the grievor to unload some trucks using a heavy lift, which was viewed as a less desirable machine than the one the grievor was using. The grievor told the foremen to get a junior employee to do the work. After some further discussion, the grievor ultimately did the work. Later, the foreman and the grievor spoke about the matter. The grievor told the foreman that the junior employee was not pulling his weight and that the grievor did not appreciate the way the foreman spoke to him, adding he felt the foreman was favouring the junior employee. Later, the foreman again asked the grievor to unload trucks with the heavy lift and the grievor again told the foreman to get the junior employee to do the work. The foreman eventually asked the grievor if he was refusing his order and the grievor said “Get the junior employee to do it”, as he continued his work.

The employer set up a meeting with the grievor the same day and he was suspended and then ultimately dismissed.
Analysis and Decision

A preliminary issue was the reference to his past disciplinary record in the grievor’s dismissal letter. However, the collective agreement provided that if an employee went for 12 months without notice of discipline, the employee’s record is deemed to be free of any disciplinary notice. The arbitrator held that a letter written to the grievor within the one-year period was not a disciplinary warning as the letter stated “This letter is not intended to be a written warning, but is a cautionary document.” Therefore, the grievor had a clean disciplinary record.

The arbitrator then applied the Wm. Scott analysis. Did the grievor’s conduct give rise to just cause for some sort of discipline. In regard to the July 2 incident, the arbitrator found there was no just cause for any kind of discipline. When he came on shift at 8:30 a.m. he had a discussion with his supervisor which led him to believe he could decide to work to 4:00 p.m. or stay for his full eight hours and leave at 5:00 p.m. When the grievor decided to leave at 4:00 p.m., it was only after a discussion with the supervisor on duty at that time. The arbitrator found that the grievor was not asked to stay beyond 4:00 p.m.

The arbitrator then considered the July 7 incident. The basic requirements of insubordination are: first, there must be a clear order understood by the grievor; second, the order must be given by a person in authority over the grievor, and; third, the order must be disobeyed. The arbitrator found that all of these requirements were met by the July 7 incident. Therefore, there was just cause for some sort of discipline.

Was discharge excessive in all of the circumstances of the case? The arbitrator considered the following:

• the grievor is a relatively short-term employee;

• while he appeared to be a poor employee who received a great benefit from the sunset period in the collective agreement, the fact remained that he had a discipline-free record;

• his refusal to work was made with him believing the heavy lift work should have been performed by the junior employee in accordance with a workplace – this cannot be relied upon as a basis for refusing to perform particular work, but it is a mitigating factor;

• there was evidence that another employee refused work and was given lesser discipline in a similar situation.

The arbitrator concluded that discharge was excessive in the circumstances and substituted a three-day suspension for the discharge.

Note: the employer had argued that if the arbitrator found that discharge was excessive, that reinstatement was not the appropriate remedy. The arbitrator stated that kinds of factors to consider include:

• the refusal of co-workers to work with the grievor;

• lack of trust between the grievor and the employer;

• the inability or refusal of the grievor to accept responsibility for any wrongdoing;

• the demeanour and attitude of the grievor at the hearing;

• animosity on the part of grievor towards management or co-workers; and

• the risk of a “poisoned” atmosphere in the workplace.

The arbitrator was not persuaded that the evidence in this case supported a conclusion that the employment relationship could not be restored. Note that the arbitrator refused to make an award for damages beyond lost wages and benefits, stating that the grievor did commit a wrongdoing. Further, he stated: “The grievor presents as a righteous character who never makes a mistake or is wrong, but his short tenure with the Company has essentially been preserved by the operation of Article 18.11 [the sunset clause regarding discipline]”.

Breach of duty of fair representation--complaint can't proceed where grievor signed release, says the LRB

http://canlii.ca/en/bc/bclrb/doc/2012/2012canlii44734/2012canlii44734.html  is the link to a recent LRB decision that provides good guidance on what the law is when a union and an employer settle a grievance and the grievor signs a release.  According to the LRB, absent circumstances that prove undue influence or duress, the  release  signed as part of the settlement will bar a complaint of a breach of duty of fair representation against the union. 

Cyberbullying--Supreme Court of Canada protects the identity of child victims

The Supreme Court of Canada's decision A.B. v. Bragg CommunicationsA.B. v. Bragg Communications  issued last Thursday will make it easier for children  to sue their cyberbullies anonymously.

In this case the lower courts had turned down an application by a 15 year old girl for permission to anonymously apply for a court order requiring an internet service provider to disclose the address of  whoever had created a phony Facebook profile of her so that she could sue them.  The courts  had also denied her request that the Facebook content be kept confidential as it contained offensive and sexually explicit statements.  According to the lower court rulings, the girl had failed to prove that she had or would suffer real and substantial harm.

The girl appealed to the Supreme Court of Canada.  The Supreme Court overturned the Nova Scotia Court of Appeal on the issue of  the anonymous application but upheld the ruling regarding the content of the Facebook page.  According to the Supreme Court,  in cases of sexualized cyberbullying it is not necessary to prove real and substantial harm to a particular child as a court can rely on the inherent vulnerability of children that has long been recognized in Canadian law.

The case engaged a balancing of the principles of an open court system and freedom of the press on one hand and the privacy rights of children on the other. On the matter of identity  the court came down on the side of the child plaintiff ruling that her identity should be protected.  However, when it came to the non-identifying content of the Facebook page, the court came down on the side of the open court system and freedom of the press. 

The case is also useful because it illustrates the legal process to be used in obtaining the identity of cyberbullies. 






 

DISCIPLINE AND DISCHARGE

In this posting, guest blogger Diane MacLean provides a review of BC labour arbitration awards issued in 2012 that deal with discipline and discharge.  Representing members who are disciplined by the employer is an important responsibility of union representatives.  Diane's overview and summaries provide information which we hope you will find helpful.

GUEST POST by Diane MacLean

This post and the ones to follow will report on 2012 arbitration decisions regarding disputes over  discipline and dismissal.  Summaries of the cases referred to in this overview are found at the end of the post.

The B.C. Labour Relations Code contains provisions regarding these kinds of disputes. Section 84 (1) provides:

Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.

Further, Section 89 provides:

For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may
...
(d) determine that a dismissal or discipline is excessive in all circumstances of the case and substitute other measures that appear just and equitable,

Many arbitrations dealing with an employee’s dismissal or discipline will refer to the B. C. Labour Relations Board’s decision in Wm. Scott &Co. (Re), [1976] B.C.L.R.B.D. No. 98; [1977] 1 Can. LRBR 1; BCLRB Decision No. 46/76. The employer, a poultry processor, dismissed the employee for calling a newspaper and making untrue remarks about her employer. The arbitration board upheld the dismissal and the union appealed the decision to the B.C. Labour Relations Board.

Under Section 99 of the Code, the Board may set aside an arbitration decision on the grounds there was not a fair hearing or if the decision is “inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations”. This was the first time that the Board had to consider this provision, plus new provisions regarding dismissal and discipline, this decision explained how the legislation changed the common-law private contract of employment.

The B.C. Labour Relations Board eventually upheld the arbitration board decision, but in doing so set out three questions to be addressed by an arbitrator in a discharge case:

1. Has the employee given just and reasonable cause for some form of discipline by the employer?

2. If so, was the employer's decision to dismiss the employee an excessive response in all of the circumstances of the case?

3. If the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?

The Board noted that the first question is essentially fact-driven – did the employee actually do what he or she is accused of? The second question is more complicated and the arbitrator must consider the following:

• How serious is the immediate offence of the employee which precipitated the discharge (for example, the contrast between theft and absenteeism)?

• Was the employee's conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration, perhaps provoked by someone else (for example, in a fight between two employees)?

• Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?

• Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem (for example, of persistent lateness or absenteeism)?

• Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment (an issue which seems to arise particularly in cases of discipline for wildcat strikes)?

( a more detailed summary of the Wm. Scott decision is available under the heading Summaries at the end of this post)

Following are five 2012 cases summarized in this post:

1. International Forest Products Limited (Grand Forks Division) v United Steelworkers, Local 1-423 : An employee received a five-day suspension for inappropriate behaviour and threatening. He was a long service employee and married with three children. He had been suspended before for insubordinate behaviour. The employee apologized and the employer accepted the apology as genuine. The arbitrator applied the Wm. Scott principles and upheld the dismissal. 
2. Phelps Apartment Laundries Ltd. v Teamsters, Local Union No. 213 : The  employee worked as a service technician, an on-the-road job. He was discharged when his driver’s licence was suspended. The collective agreement provided that an employee could be placed in other work when this happened, but this could happen only once. In this case, the employee’s driver’s licence was suspended twice, but each suspension related to the same incident. The arbitration board applied a balance of interest test and decided that dismissal was too severe a penalty. 
3. Gateway Casinos Entertainment Limited (Starlight Casino) v British Columbia Government and Services Employees Union :This arbitration dealt with two different employees. The first employee was suspended for being late returning to his shift. The employee had explained to the employer that he was not feeling well. The second employee was suspended three days for dishonesty. The arbitrator applied the Wm. Scott analysis and found that the employer did not have just and reasonable cause to discipline the either employee.
4. International Union of Operating Engineers, Local 115 v Williams Machinery Limited Partnership: The manager asked all employees to do some clean-up of the work area. The manager noticed that the grievor was not doing clean-up and asked him to help the others. The grievor said “Why should I?” Matters escalated and the grievor was given a three-day suspension. The arbitrator upheld the suspension, finding that the grievor was given a clear direction by a person in authority, and that he understood the direction and repeatedly disobeyed it.
5. Overwaitea Food Group v. United Food and Commercial Workers, Local 1518: The employee was terminated for inappropriate workplace conduct, including insubordinate comments and a threat to go home and get a gun and bring it into the store. She was a long-service employee but had a spotty discipline record, including other instances of insubordination and using profanity. The arbitrator applied the Wm. Scott analysis and upheld the termination.

Next post: more discipline and discharge arbitration summaries!

Case Summaries

Wm. Scott & Co. (Re)


Date: July 26, 1976

Vice-Chairs: P.C. Weiler, Chair, C.J. Alcott, A. MacDonaldrbitration Appealed: Discharge (application denied)

Background

The employer was a poultry-processing company. The grievor reacted to newspaper reports regarding a substantial backlog of birds awaiting slaughter, which referred to neither the union nor the processors wanting to have extra shifts. The grievor, an officer of the union, called the newspaper, apparently to question the accuracy of the report that the union did not want to work extra shifts. There followed a story in the newspaper where the grievor was reported as saying that employees were annoyed regarding the recent reports of poultry meat backup and that the employees had never been asked to work overtime to clear up the backlog. She also said that “You wouldn’t believe the inefficiencies at the plant” and that almost daily 20 to 35 women waste almost 20 minutes arguing over the use of a hose.

The grievor was dismissed by a letter dated September 4, 1975, which denounced her statements as unfounded – the statements were false and the grievor knew they were false. Further, the employer said the statements were “extremely detrimental”. The letter also referred to a continuing problem with the grievor (since her reinstatement in April 1975; she had earlier been dismissed but an arbitration board substituted the dismissal with one year of suspension) regarding her “constant interruption to our production process by interference in the work of other employees, presenting unfounded complaints and her unwillingness to comply with Management requests”.

The dismissal went to an arbitration board which found that her comments to the newspaper were unwarranted and that it was “malicious and vindictive for the grievor to use these occurrences [the water hose occurrences] which were the fault of employees as regular examples of Company inefficiency”. The board found she went out of her way to discredit her employer and found that she was not unjustly dismissed. The arbitration board also refused to exercise its discretion to substitute a lesser penalty. The union appealed the decision to the B.C. Labour Relations Board under s. 108 (“inconsistent with the principles expressed or implied in the Code”).

Analysis and Decision

The B.C. Labour Relations Board referred section 93(1) of the Labour Relations Code which requires every collective agreement to contain a provision [see the current section 84(1)]:
governing the dismissal or discipline of an employee bound by the agreement and that provision, or another provision, shall require that the employer have a just and reasonable cause for the dismissal or discipline of an employee;

As well, Section 98 confers the following authority to an arbitrator [see the current section 89]:
For the purposes set out in Section 92, an arbitration board has all the authority necessary to provide a final and conclusive settlement of a dispute arising under the provisions of a collective agreement, and, without limiting the generality of the foregoing, has authority
...
(d) to determine that a dismissal or discipline is excessive in all the circumstances of the case and substitute such other measure as appears just and equitable,

The Board noted that this was the first application it had to deal with under the then Section 108 (see current section 99: whether the decision is “inconsistent with the principles expressed or implied in the Code”). The Board discussed how, prior to the sections in the Code dealing with dismissal and discipline, discharge of an employee was a pure matter of private contract law, which allowed the employer to dismiss an employee without notice for cause or with notice without cause. The Board discussed the implications of this legislation on the employment relationship in detail at paragraph 10 of the decision.
As a result of the legislative changes, the Board said that:

… arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer's decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?

In regard to the first question, the Board said it normally involves a factual dispute – did the employee actually engage in the conduct which triggered the discharge. The second question is where the arbitrator must be especially searching of management’s decision to discharge. The arbitrator must consider:

(i) How serious is the immediate offence of the employee which precipitated the discharge (for example, the contrast between theft and absenteeism)?

(ii) Was the employee's conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration, perhaps provoked by someone else (for example, in a fight between two employees)?

(iii) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?

(iv) Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem (for example, of persistent lateness or absenteeism)?

(v) Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment (an issue which seems to arise particularly in cases of discipline for wildcat strikes)?

The Board then considered these factors in regard to the grievor’s discharge. It did not disturb the arbitration board’s finding of fact about what the grievor said to the newspaper and that it was a vindictive effort to discredit the employer. Having found that the grievor did something that warranted discipline, then was the discharge excessive in all of the circumstances? The Board noted that the arbitration board believed that the grievor “remained recalcitrant in her attitude towards her employer”. As well, the arbitrators considered her previous disciplinary record (including a recent return from a one-year suspension) and believed that dismissal was required in the circumstances. The B.C. Labour Relations Board, while neither endorsing or disapproving of the arbitration board's findings, did not find that the decision was “inconsistent with the principles expressed or implied” in the Code or that there were any grounds for setting aside the award.

International Forest Products Limited (Grand Forks Division) v. United Steelworkers, Local 1-423, 2012 CanLII 24874 (BC LA)
Date: April 26, 2012 Arbitrator: John Kinzie

Grievance: Discipline – suspension without pay (grievance dismissed)

Background

The employer suspended the grievor without pay for five days because of a voice mail left for a supervisor which said:

"Hey Ken. I’m not sure who the fuck you think you are cutting my stuff and going through my personal stuff but ah maybe you should get off your ass and deliver my shit over here then. I’m still the posted oiler guy. I’m going to be going there at least 10 weeks a year and you pull this shit? Pretty fucking rude."

The employer also noted that, at a meeting, the grievor did not acknowledge his behaviour was inappropriate. He stated that the suspension pending investigation was ‘bullshit’ and, as he left the room and slammed the door, he said “Remember boys, this is a small town.” The employer noted that the grievor had been suspended three times before for insubordinate behaviour and for leaving work without authorization to pay hockey.

The employer noted that the grievor did apologize later; the employer accepted the apology as genuine and the grievor had promised to change his behaviour in the future. The grievor had worked for the employer since 1999 (approximately 12 years) and was married with three children.

The employer operates a combined sawmill and planer mill. This matter arose after, the grievor became an Oiler in the maintenance department in June 2010. He noticed that a clocker and a cupboard in the department were vacant, so he put locks on them and used them to store his personal tools and other items. In July 2011, the grievor was bumped from his oiler position and he returned to positions in the planer mill and sawmill. However, he did not empty his locker and cupboard, or remove the locks, because he believed he would return to the Oiler position when the incumbent went on holidays, etc.

The maintenance superintendent testified that an employee in the department asked if he could use the grievor’s locker. As well, employees wanted to use a spare battery which was in the grievor’s locker. Therefore, the maintenance superintendent asked the maintenance supervisor to ask the grievor to remove his lock from the locker, which he did. The lock was not removed the next day, so the maintenance supervisor asked the grievor to remove the locks again. The grievor said he would do it the next day (Friday).

The grievor had a different view of the content of these conversations and whether all of these conversations had occurred. He admitted that he might have understood that he was to remove the lock, but he did not think the matter was urgent. He also acknowledged that he might have told the maintenance supervisor that he would bring in his key the next day. In any event, the lock was not removed. On the following Monday the maintenance superintendent told the planer mill superintendent that he was going to cut the lock off if the grievor did not do it himself. The planer mill superintendent passed this information on to the grievor. The grievor said he did not understand why he was being asked to remove his lock as he thought he would still be relieving for the oiler position (he was also upset that another employee was being given relief work that the grievor thought he was entitled to). The planer mill superintendent said he would relay his concerns but that the maintenance superintendent wanted him to remove the lock or he would cut it off himself. The grievor threatened to call the police because this would be an invasion of his privacy.

The planer mill superintendent reported back to the maintenance superintendent who believed the grievor would not be removing the lock and later on in the week, the lock was removed. When the grievor found out, he left the message quoted above. When the message was replayed for the grievor, he immediately apologized and said that he was having anger issues that he was trying to deal with his family. The employer testified that, after what they viewed as a sincere apology, they decided to give the grievor a five-day suspension, instead of a termination.

Analysis and Decision

The arbitrator applied the William Scott & Company Ltd., BCLRB No. 46/76 principles. First, did the grievor’s conduct give the employer just and reasonable cause to impose some form of discipline? The arbitrator noted that the grievor knew that the maintenance superintendent wanted the lock removed so that it could be used by another employee actively working in the maintenance department and that the maintenance supervisor had talked to the grievor about it on three occasions. As well, the grievor was told that if he did not remove the lock, then it would be cut off. The arbitrator noted that this “would have conveyed to a reasonable person that [maintenance superintendent] was becoming impatient with the delay that was occurring in having the grievor remove his lock.”

The arbitrator did not accept the grievor’s explanation that he was waiting to hear back on his issues; as an experienced shop steward, he knows and understands, the ‘work now, grieve later’ principle.

Finally, when his lock was removed, he reacted with anger with a “clearly rude and inappropriate voice mail message”. He was contemptuous of the superintendent’s authority and was insubordinate in “a very serious way”. As well, the arbitrator took the grievor’s statement that “this is a small town” as an inappropriate threat.

Therefore, the answer to the first question is “yes”.

The second question to be addressed is whether the employer’s decision to impose a five-day suspension an excessive response in all the circumstances of the case. Although the arbitrator was of the opinion that the grievor’s record lacked clarity, in that sometimes he was being coached or that certain misconduct was unrelated to the misconduct in this case, he was of the view that the grievor’s misconduct in this case was very serious. The arbitrator did not accept that his actions were “spur of the moment”, stating:

The grievor was an angry man that day. But his responses indicate that he had been angry throughout this matter. He had his concerns and because of them he was not listening to what his supervisors were telling him. Then he reacted in an insubordinate and threatening way when they took the next natural step given his failure to respond. In my view, his reaction was deserving of serious discipline in and by itself.

His sincere apology on November 4, 2011, “resonated strongly” with [the employer]. I agree that it justified reducing the severity of the punishment for the grievor’s misconduct. However, I do not agree that it would justify reducing it to a written warning. A warning, in my view, would not be responsive to the seriousness of the grievor’s misconduct. Having considered all of the evidence and argument, I have concluded that a five day suspension was just and reasonable in all of the circumstances of the case.

Therefore, the arbitrator concluded that the suspension was not an excessive response in all of the circumstances of the case.

Phelps Apartment Laundries Ltd v Teamsters, Local Union No 213, 2012 CanLII 29878 (BC LA)

Date: May 28, 2012 Arbitrator: Mark J. Brown

Grievance: termination (grievance allowed)

Background

The grievor started with the employer in 1989 and is 62 years old. He worked as a service technician, an on-the-road job. The grievor’s driver’s licence was suspended for 90 days in December of 2009. The grievor was placed in the shop for the suspension period pursuant to the collective agreement which stated:

If any employee having at least two (2) years of seniority has their driver’s licence removed for a period not exceeding twenty-six (26) weeks, that employee shall be placed on other work, if available, which would not require the use of a driver’s licence, provided it did not create a layoff of another employee or be given a leave of absence until such time as their driver’s licence is returned.

For purposes of this provision, the Rate Retention Clause (Article 34) will be waived and the employee shall be paid at the rate applicable to any work performed.

This privilege will be granted to no more than one (1) employee at any time and no employees shall be entitled to avail themselves of it more than one time during their employment with the Company.

Then, in December 2010, the grievor’s licence was suspended again. He was put in the shop but there wasn’t a fulltime job opening. In deciding to dismiss the grievor, the employer considered his driving record, liability issues, the short notice the employer received about the suspension, reliability and lack of shop work. The grievor was dismissed on January 20, 2012.

The second suspension was related to the same incident as the first suspension, but the supervisor said he was not aware of this until the hearing.

The employer noted that a driver’s licence is a condition of employment and argued that the collective agreement presumes a single suspension, not multiple suspensions for one incident. If shop work is available, the employee gets that. It is a privilege granted once. There is no right to shop work or a leave of absence on a second suspension. Therefore, the employer argued that the parties negotiated protection for the first suspension and a deemed termination for the second suspension.

The union argued that the collective agreement gives the employee a right to be placed in the shop – the article in the collective agreement is not a deemed termination provision and the balance of interests supports reinstatement. As well, the two suspensions related to the same incident. Further, if the provision was a deemed termination clause, it would say so specifically. The employer placed the grievor in the shop for six weeks and cannot then change its mind and terminate his employment. The union also said that the employer terminated the grievor’s employment when the union refused to agree to a settlement that included a termination clause on 30 days’ notice or at age 65.

Analysis and Decision

The arbitrator discussed the balance of interest test in the case law discussed in Re Bell Canada and C.W.C. (Shime), 24 L.A.C. (4th) 116 and then applied that to the facts in this case:

Turning to Article 6(f), it is clear that a valid driver’s licence is a condition of employment. If an employee with two years’ seniority loses their licence for a period not exceeding 26 weeks, the employee is placed in other work if available or placed on leave of absence until the driver’s licence is returned.

I agree with the Employer that the “privilege “is either being placed in other work or being placed on a leave of absence. The privilege in effect is not losing employment.

I also agree with the Employer that the provision is triggered by a suspension, or loss of licence. It is not triggered by an incident that may have multiple suspensions.

I agree with the Union that on subsequent suspensions, Article 6(f) is not a deemed termination clause. I am persuaded that for such a severe result, the Collective Agreement would require specific language. Article 6(f) provides a benefit to employees that in the event of a first suspension, the balance of interest test set out in the case law does not apply. The parties have negotiated an agreement that if the conditions set out in Article 6(f) are met (i.e. it is a first suspension, the employee has two years seniority, and the suspension is not more than 26 weeks) the employee is placed in other work or given a leave of absence. In the event of subsequent suspensions the balance of interest test set out in the case law continues to apply.

In the case at hand, [the grievor] had two violations on December 22, 2008: driving without care and a 24 hour prohibition – alcohol. He received the same two violations on December 4, 2009.

I agree with the Union that the December 26, 2009 to March 26, 2010 suspension was under Section 94.2 of the Motor Vehicle Act under the administrative provision. The second suspension was from December 6, 2011 to March 6, 2012 under Section 98 of the Motor Vehicle Act when Lutsenko plead or was found guilty of driving without due care and attention. He was not found guilty as charged with driving under the influence of alcohol. The two suspensions were related to the same incident in 2009. However, as I noted above this fact does not affect the interpretation ofArticle 6(f) as the provision is triggered by a suspension not an incident. [paras. 44-49]


In balancing the interests, the arbitrator considered the following:

• the employer runs a small operation which requires reliable attendance;

• the grievor cannot perform the his duties without a valid driver’s licence;

• the employer’s concern for safety and the grievor’s reckless behaviour and driving record weigh against continuation of the employment relationship;

• the grievor did not act responsibly by not informing the employer there was a risk of a further suspension and this affected the employer’s business;

• the grievor is a long service employee with no discipline on his record (23 years with this employer);

• he is 62 years old and has only worked in this industry;

• both suspensions relate to the same driving incident, so he has not been given an opportunity to improve;

• the employer used the grievor as a contractor for three days after the termination and this mitigates “somewhat” its concerns of safety, reckless behaviour and his driving record;

• the employer placed the grievor in the shop for one-half of the suspension period, taking a significant amount of time to consider its options.

The arbitrator concluded that the balance of interest was tipped slightly in favour of the grievor and termination was too severe a penalty. The reasonable course of action for the employer was to place him on a leave of absence from the date of the dismissal until his driver’s licence was restored. Then he shall be reinstated with full back pay and seniority.

Gateway Casinos & Entertainment Limited (Starlight Casino) v. British Columbia Government and Services Employees Union, 2012 CanLII 31309 (BC LA)

Date: June 6, 2012 Arbitrator: Mark J. Brown

Grievance: Two discipline grievances; both grievances allowed

1) Price Grievance

Background

The grievor arrived at work on time but was not feeling well and told his supervisor. When asked if he wanted to go home, he said he would continue his shift, as he knew the casino would be busy. However, the grievor felt worse and lost track of time during his break. When asked why he was late, he explained that he had not been feeling well. At the end of his shift, the grievor went to the hospital and was treated for his ailment. He was advised to stay indoors and not go to work for three days. The grievor immediately advised the employer of the situation. The grievor was suspended for one day for being late returning to his shift and because of his previous discipline history.

Analysis and Decision

The arbitrator applied the Wm. Scott analysis and found that the employer did not have just and reasonable cause to discipline the grievor. The arbitrator concluded that he was not intentionally malingering in order to knowingly take a longer break. He was honest about why he was late returning from his break and there was no doubt that he was ill.

2) Chang Grievance

Background

The grievor was a casual employee who provided an availability form which was used, along with other employee’s availability forms, to create a schedule. A schedule was posted on April 23, 2011, and the grievor felt that he was not scheduled for all of the shifts he would be entitled to. He had a meeting with the marketing manager. He showed him an availability form dated May 6, 2011. The marketing manager concluded that there were some shifts the grievor should have worked and asked a supervisor to investigate.

The supervisor investigated and reported that none of the supervisors had received the May 6, 2001 availability form and the schedule was posted four weeks earlier and was based on the grievor’s January 5, 2011 availability form. The employer concluded that the grievor had intentionally misled the marketing manager. He was given a three-day suspension for dishonesty.

The grievor was of the view that the May 6, 2011 availability form was not much different from the earlier form, and that he would have been entitled to extra work based on the earlier form as well.

Analysis and Decision

The arbitrator applied the Wm. Scott analysis and found that the employer did not have just and reasonable cause to discipline the grievor. After reviewing the circumstances, the arbitrator was not satisfied that the grievor was trying to mislead the marketing manager or be dishonest. The arbitrator concluded that he used the May 6th form for comparison because he did not have the January 5th form in his possession although he thought they were about the same. The arbitrator said:

… it could have been easily cleared up by the Employer advising Chang that the January 5th form was different and the May 6th form would result in more hours in the future….

Instead the Employer assumed that Chang was being dishonest. However, Chang could not have claimed more hours for the May 1 to 28 schedule based on the May 6 form as it was dated after the schedule was produced. There was no benefit to Chang to try and mislead the Employer using a form dated after the schedule was produced as it would not have been used to produce the schedule in any event. The May 6th form would be used for future schedules. If Chang was attempting to mislead the Employer and gain a benefit for the May 1 to 28 schedule, an updated form would have to be dated prior to April 23.

International Union of Operating Engineers, Local 115 v Williams Machinery Limited Partnership, 2012 CanLII 51425 (BC LA)

Date: July 3, 2012 Arbitrator: James E. Dorsey, Q.C.

Grievance: three day suspension for insubordination (grievance dismissed)

Background

The grievor, a ten-year employee, was given a three-day suspension on January 9, 2012. His manager noted that he had talked to the grievor about complaints made against him. He had received a written warning for failing to call-in or report to work. As well, the manager made a note on his file about complaints from two other co-workers (unauthorized smoke breaks, smoking inside the equipment, complaining about the company and getting overly frustrated). The manager had been reminded on other occasions to focus on work instead of visiting other employees.

On January 9, 2012, at the start of business, his manager had noted that the mechanic’s area was messy. He went to the lunch room where the employees were preparing for their shift and told them to spend the first 15 to 20 minutes cleaning up the work area. His instructions were clear and were not questioned or challenged. The grievor testified that he put down an oil absorber and started putting away tools that he had left outside his toolbox the previous workday.

The manager came to the work site and noted that the other employees were doing clean-up work; he noted that the grievor was at his work bench and not involved in the general clean-up. The manager approached the grievor and asked him to help with the clean-up and the grievor replied “Why should I?” in a manner his manager characterized as dismissive. He repeated his instructions and the grievor turned away. The manager then asked him to come to his office.

The grievor said he was putting his tools away when his manager approached him and that his “Why should I?” comment was a friendly jest.

When they went to his office, the manager told the grievor he needed him to participate in the clean-up. He testified that the grievor said it was not his mess and not his problem. The grievor denies saying this. The manager then said he needed him to clean up and if he could not, he could go home. The grievor left and the manager assumed he was going to assist the other employees with the clean-up.

The grievor recalled the meeting differently, but when he noticed his manager getting upset, he pulled out a cigarette and said “let’s go outside and have a talk”. This is when the manager told the grievor that he talked too much, needed training and should clean up or go home. The grievor said he returned to work bench and when the manager asked him to clean up some oil he did it before he started his work.

The manager had a different recollection: he said he went to the shop floor where he saw other employees cleaning up and the grievor was at the door pulling out a cigarette. The manager called him and told him he needed to help with the clean-up. The grievor returned to his work bench and started to clean up that area.

The manager went to office and thought about what happened. After consulting with his manager, they decided to discipline the grievor. Later in the day, they gave the grievor a letter imposing a three-day suspension.

Analysis and Decision

The arbitrator appeared to accept the employer’s submission that it did not over-react or impose excessive discipline in all of the circumstances and that the approach to take is that of “restrained arbitral scrutiny” as explained in West Fraser Mills Ltd. [2011] B.C.C.A.A.A. No. 113 (Hall):

In all of the circumstances, we are not inclined to interfere with the penalty which the employer has chosen. As a general rule, we do not believe that it is desirable for a board of arbitration to attempt to "fine tune" a managerial decision respecting discipline which is not in itself unreasonable or excessive. To do otherwise would merely encourage costly litigation as grievors, hoping for perhaps minor gains (whatever the over-all cost) press their bargaining agents to carry every discipline matter forward to arbitration. Likewise, employers might be encouraged to impose more extreme sanctions at the outset, on the expectation that an arbitrator inclined to tinker might be disposed to" split the difference" and substitute something within the general realm that management might otherwise have chosen in the first place. It is one thing for a union and employer, in the grievance procedure, to haggle about the penalty, "saw it off", "split the difference", or bargain a concession in anticipation of future considerations. It is quite another for an arbitrator to hold, on the basis of objective evidence and reasoned consideration, that an employer's disciplinary response is unwarranted and should be modified. This is not to say that arbitrators should shrink from modifying a penalty which is clearly inappropriate in the circumstances or excessive when measured against the norms of the industrial community. But this requires more than some "gut feeling" or vague impression that the arbitrator, standing in the shoes of management, might have done something somewhat different -- not least because the litigation process provides, at best, only an imperfect appreciation of the enterprise as a whole and the human and business relationships which must somehow be fitted into a legal mold.

Accordingly, while a three-week suspension may not be the penalty which this board of arbitration would have chosen, we are satisfied that it is clearly within the range of reasonable employer responses to the facts at hand…

The arbitrator found that the grievor was given a clear direction by a person in authority. He understood the direction and repeatedly disobeyed it. The arbitrator believed that the grievor’s testimony was an “effort by Mr. Li to deflect, diminish and deny responsibility for his actions”. The arbitrator concluded:

On January 9th, Mr. Li behaved with insolence (disrespect, cheekiness, rudeness) and insubordination. His behaviour was disrespectful toward both the technician team and Mr. Sevrens. It exhibited an element of setting himself apart and not subject to rules applicable to all others. It was open and openly defiant. The unstated message from him was that he was not going to work with his fellow technicians; he was not going to clean up what others left behind; and he was not going to follow Mr. Sevrens’ direction.

This behaviour was not because of any personal hardship associated with having been selected for special attention or assigned a particularly distasteful task. It did not arise from a hardship or belief he had some right to not follow the direction. It was a product of his personal attitude. He has not made any apology or expressed any recognition of his defiance of direction.

The employer’s choice of discipline was severe enough to capture Mr. Li’s attention and to forewarn where continued behaviour by Mr. Li expressing his attitude will likely lead. As the union characterized it, placing him with one foot at the exit door was intended to correct any further behavioural manifestations of his attitude. It was a true warning and, in the circumstances, not an overly onerous hardship for him.

I find there was just and reasonable cause for discipline and a three-day suspension, in all of the circumstances, was a measure of discipline within a reasonable range of disciplinary responses. The employer did not ignore something relevant or consider something irrelevant; act on a misunderstanding or improper motive; or otherwise affronted fairness. The grievance is dismissed.