Saturday, October 13, 2012

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)


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)

Arbitrator: Rod Germaine


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)

 Arbitrator: Stan Lanyon


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)

Arbitrator: James Dorsey, Q.C.


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)

Arbitrator: Vincent L. Ready


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)

Arbitrator: Emily M. Burke


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)

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]”.


Anonymous said...

Who is Diane MacLean?

Unknown said...

Diane has been contributing to this blog for over a year. See my (re)introduction of her in to-day's post.