Thursday, February 7, 2013

Arbitration summaries with human rights overtones-- discrimination on the basis of sex or family status

The focus of this post submitted by Diane Maclean is on discrimination on the basis of sex and family status. An employee can grieve, alleging a contravention of the collective agreement (if clauses have been negotiated). Or, an employee can grieve an alleged contravention of the Human Rights Code, as arbitrators have full authority to apply the Code. The applicable section of the Code is Section 13 (1), which provides:

A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person …

Note: the Canada Human Rights Act and other provincial human rights legislation have similar provisions.)

In the workplace, allegations of sex discrimination can arise in many circumstances, but the most common are the failure to return an employee to her position after maternity and/or parental leave and sexual harassment. In this post, I have summarized three decisions that were reported on CanLII. One of these decisions is in regard to entitlements to special leave to attend to a sick family member. While not commonly a human rights issue, it seems to dovetail with the cases involving pregnancy and parental leave.

I have also referred to some related decisions reported on Quicklaw that are interesting reads. You can locate Quicklaw decisions at any courthouse library in the province.

UNITE HERE, Local 40 v Compass Group Canada Ltd.

Date: May 24, 2012 Arbitrator: James E. Dorsey, Q.C.

Grievance: Failure to return to position on return from maternity leave (grievance allowed)



The grievor started working for the employer in January 2008. She took maternity leave in April 2010. At that time she was working as a cook for 35 hours per week. The collective agreement stated that she was entitled to “return to the same job”, which continued to exist. She returned to work in April 2011 and was not returned to the same job; instead, she was demoted to “casual on call”. The union grieved this alleged breach of the collective agreement and later added allegations of breaches of the Employment Standards Act and the Human Rights Code.

Analysis and Decision

The arbitrator allowed the grievance and concentrated on determining a remedy. First, he ordered reinstatement to her pre-leave position and work schedule. He also order lost wages in the amount of plus pre-judgement interest, the option to make contributions to the pension plan with matching contributions from the employer, credit to accrued vacation, and seniority credits (for the duration of her maternity leave and for the period for which she lost wages). The arbitrator declined to award several remedies under the Human Rights Code that had been requested by the union.

Below are some recent decisions related to maternity and parental leave:

 • Okanagan College v. Okanagan College Faculty Assn., [2012] B.C.C.A.A.A. No. 137 (Quicklaw): the grievors were term (i.e., not regular or continuing) college instructors. The grievors were denied credit for Teaching Load Units when they were on maternity and/or parental leave. The accrual of these credits determines when an instructor will be eligible for conversion to a continuing appointment. The union argued that the grievors were “unfairly discriminated against” in that other term instructors may accrue rights to work and may be positively recommended for conversion to continuing positions. The union alleged that this could result in a “resultant loss of secure continuing work”. Arbitrator Hall dismissed the grievance, deciding there was no breach of the collective agreement or the Human Rights Code. This case is interesting because it provides an extensive review of decisions regarding this issue.

British Columbia Public School Employers’ Assn. v. British Columbia Teachers’ Federation (Supplemental Employment Benefits Grievance), [2012] B.C.C.A.A.A. No. 138 (Quicklaw): In this case, the employer argued there was no discrimination because birth mothers, birth fathers, and adoptive parents were equally eligible for 15 weeks of top-up of their employment insurance benefits. The birth mother could choose to take the top up during her maternity leave or during parental leave. The arbitrator disagreed and allowed the grievance. There was a good review of other decisions in this area, focusing on the purpose of pregnancy leave versus parental leave.

 Osprey Care Inc (Hamlets at Penticton) v Hospital Employees’ Union

Date: June 28, 2012 Arbitrator: John P. Sanderson, Q.C.
Grievance: Termination for inappropriate sexual behaviour (grievance dismissed)



The employer operates a long-term care facility where the grievor had been employed as a Registered Nurse since February 2009. In October, 2011, the grievor’s employment was terminated as explained by the events set out in the letter of termination:

• First, the grievor was suspended after a co-worker (also referred to as complainant) alleged inappropriate sexual conduct away from the work place;

• The employer conducted an investigation and the grievor denied the allegations;

• The employer also referred the matter to the College of Registered Nurses of British Columbia;

• The grievor refused to provide a copy of a previous consent agreement with that body;

• Notwithstanding the consent agreement, the grievor still denied wrong doing; and

• The employer concluded that the grievor did engage in inappropriate sexual conduct with the Complainant – given the grievor’s denials, the employer did not feel that the grievor was remorseful for what happened or accepted responsibility for what happened, such that the conduct would not be repeated in the future.

The evidence showed that the grievor came to the co-worker’s parents’ house while her parents were away. Each employee had a different version of events – the co-worker said that the grievor was uninvited and that he sexually assaulted her. The grievor said he was invited and that the sexual activity was consensual. The co-worker reported on what had happened to her boyfriend and parents and then contacted the police. The grievor was put on an unpaid leave. Although charges were laid, the Crown decided not to proceed with the charges. The employer decided to conduct its own investigation – the co-worker co-operated and the grievor did not.

During the course of the investigation, the employer discovered that the grievor had signed a consent agreement with the College of Registered Nurses of British Columbia in 2009. The grievor refused to provide the employer information about the consent agreement. At the hearing, he admitted that the consent agreement contained restrictions on his licence to practice arising from a sexual encounter at another workplace where he was disciplined and the incident reported to the CRNBC.

Analysis and Decision

The arbitrator had to decide who was telling the truth and whether the incident or the behaviour of both individuals was work-related. The arbitrator found the co-worker more credible than the grievor and accepted her evidence. In regard to whether the conduct was related to the workplace, the arbitrator noted that the sexual harassment began in the workplace (patting on the backside). Although the grievor denied this, he agreed that he flirted with her at work and made suggestive remarks. The arbitrator did not agree with the union’s position that this was a private encounter that had nothing to do with the workplace, stating that “on the grievor’s own evidence and admission, he was attempting to establish a relationship with the complainant; the only time they had contact was at work.”

The arbitrator decided the disciplinary penalty was not excessive in the circumstances, for the following reasons:

• the grievor had been untruthful in giving his evidence;

• he exhibited no remorse or expressed any sympathy for the complainant or to the employer;

• remained uncooperative and unapologetic throughout the employer’s investigation;

• refused to co-operate with the employer in supplying information as to the reasons for the restrictions on his licence imposed by the CRNBC; and

• at the hearing, he insisted that the complainant was so attracted to him that she was the instigator of the event.

[Note: if these events had not been dealt with promptly and appropriately, instead of a grievance regarding a termination, there could have been a sexual harassment grievance from the co-worker.]

British Columbia Maritime Employers Assn. and Western Stevedoring Ltd. V. International Longshore and Warehouse Union, Local 500 [2012] C.L.A.D. No. 86 [note: available on Quicklaw--note quicklaw is not a free database but is available at any courthouse library in the province]

Date: March 9, 2012 Arbitrator: Robert Pekeles

Grievance: Dismissal for insubordination/refusal to follow directions (grievance allowed)


[Note: The arbitration day took 38 days and resulted in a 54-page decision. The hearing dates began in May 2008 and concluded in January 2010. The arbitrator had earlier issued four separate interim decisions. By agreement, the decision on the dismissal did not include a decision on a remedy, which would be dealt with in a subsequent hearing. The analysis of discrimination was under the Canada Human Rights Code, but would be equally applicable to the B.C. Code.]


From 2004 until the date she was fired in April 2007, the grievor worked exclusively for Western Stevedoring Ltd. The grievor worked in an area where there was a head foreman and usually 6 or 7 employees. The grievor testified that she was intimidated by the head foreman, finding him gruff and difficult to talk to. He talked openly with other employees but not with her. The grievor testified about the language used when other foreman visited the head foreman in his office. There was reference to the words b-----s and c---s. She also heard the following: Holy shit, you are still here.” “Wow, the broad is still here.” “Why are you still here?” “Why do you want to work here?” “There are no women at the locker, haven’t you learned that yet?” “Go make me some bacon and eggs.” Do you want to do my laundry? When washing coffee pots, that “You know your place.” The head foreman testified that he never heard these kinds of remarks, but the arbitrator preferred the evidence of the grievor.

The head foreman also told the grievor that she was referred to as a “gimmick c---“ on the back of her business agent husband. Apparently, a “gimmick” refers to a person who receives special favours. The grievor acknowledged that there are a lot of family members on the waterfront. The male workers get ribbed about it, but do not get called “c---s”. The head foreman never said if he agreed with the reference to the grievor as a “gimmick c---“.

On April 10, 2007, the head foreman asked a co-worker to do a task that the co-worker thought was the grievor’s job. The head foreman was angry. The grievor told the head foreman that it was her job. The head foreman said to do another task and the grievor said she would do it after she finished her job. The head foreman asked the grievor several times if she was refusing to follow his direction. The grievor said she was just trying to do her job and didn’t think she was refusing his direction. Eventually the head foreman fired her.

Analysis and Decision

The arbitrator noted that:

… among certain Western foremen at least, there were sexist attitudes towards [the grievor]. The comments made by certain Western foremen about her were sexist, plain and simple. Such comments have no place whatsoever in any workplace today.

The arbitrator then focused on whether sex discrimination was a factor in the dismissal and made the following findings:

• The head foreman told the grievor that she was called "gimmick c---" on the back of her Business Agent husband. The arbitrator was of the opinion that “to "share" such a negative sexist view with a member of his workforce, without disagreeing with it, sends a very negative sexist message to that employee who reports to him”;

• The head foreman would not look at grievor and had very little to say to her, while he talked openly with other employees. He would tell stories and jokes. He also talked about having to adjust to women in the work force and the grievor was the only woman who regularly worked in the locker throughout her period of employment there;

• The head foreman gave the grievor very specific directions to her work while the former employee in the position was not so directed. The arbitrator saw this as another indicator of a discriminatory attitude on the head foreman’s part; and

• The arbitrator concluded that the head foreman treated the grievor differently in regard to a possible refusal to work. For example, when the other employee had possibly refused to do work as directed, the head foreman did not ask him twice if he was refusing work – he only did that with the grievor.

The arbitrator concluded that the grievor’s gender was "a factor" in the employer’s decision to dismiss the grievor. However, the arbitrator did find there was also just cause for discipline based on the grievor’s refusal to accept the head foreman’s work direction. The arbitrator concluded that dismissal was excessive and concluded that a written warning would be a “just and reasonable” substitute, given the breach of the Canada Human Rights Code, the head foreman’s prodding the grievor regard the refusal to work but not the other employee involved, the grievor’s previously clean discipline record, and that there was no problem with her work. The arbitrator left the remedy to a future hearing.

Another  interesting decision that can be found on Quicklaw is: Warner Bros. Television (B.C.) Inc. (Supernatural 5 films Inc.) v. British Columbia and Yukon Council of Film Unions, [2012] B.C.C.A.A.A. No. 145 (Quicklaw): although not specifically sexual harassment, this is a case on workplace harassment generally. In this case a very senior costume designer was dismissed for grabbing the arm of an employee, making derogatory comments about employees’ ancestry, making inappropriate comments to employees she supervised about the physical appearance of a producer, and making demeaning remarks about persons she supervised.

After hearing the testimony, the arbitrator was satisfied that, in addition grabbing an employee’s arm hard enough to leave bruises, that the grievor made a number of derogatory, inappropriate and demeaning remarks. The arbitrator then applied the Wm. Scott principles and found there was just and reasonable cause for some form of discipline. However, he found that the discipline imposed was excessive. He was not satisfied that it would be appropriate to reinstate the grievor to her former supervisory position and he did not order back pay. The conduct was a serious breach of the employer’s policy and the arbitrator commented that the grievor “appears to lack the insight or possibly the training and guidance to improve her conduct”. Before making a ruling on the issue, the arbitrator thought it would be useful to “allow the parties an opportunity to discuss possible terms and conditions under which the Grievor could be entitled to work on future WBTV productions”.

III. Fraser Health Authority (Surrey Memorial Hospital) v. Health Sciences Association of British Columbia, 2012 CanLII 24878 (BC LA)

Date: April 12, 201 Arbitrator: Mark J. Brown

Grievance: Entitlement to special leave (allowed in part)



The special leave provision in the parties’ collective agreement provides that such leave would be granted “to provide care to an immediate family member who has a serious illness”.

The grievor’s husband went into the hospital on April 29, 2001. The grievor worked a 7:30 to 4:00 p.m. shift and, from April 29 to May 4, visited her husband after work. The grievor was at the hospital on the evening of May 4 when the first surgery was done. She was advised that the surgery had not gone well and that her husband had gone into cardiac arrest. The grievor advised the employer that she would not be at work the next day. When she went to the hospital on May 5, her husband was anxious and she provided emotional service and other assistance to her husband. The surgery occurred around 10:30 a.m. and the grievor waited at the hospital, in case there were further complications. She then stayed with her husband when he was returned to his room until he went to sleep. The grievor reported to work the next day, and asked her supervisor whether her day at the hospital could be considered “special leave”. Her supervisor said it was not. She filed a grievance about this.

The grievor also stayed at home with her husband on May 20th, because he was experiencing symptoms similar to those prior to the surgery. She reported to her supervisor that she was at home caring for her husband and requested special leave. Her husband asked if anyone else was available and the grievor said she was the only adult at home. Her supervisor granted this leave. She also received special leave in July when she had to take her husband to emergency. Her husband was also hospitalized in August for two days. The grievor did not request special leave as she assumed it would be denied.

The supervisor testified that he denied special leave for May 5 because the grievor was not providing medical or physical care as that care was being provided by the hospital staff.

Analysis and Decision

The arbitrator said that the onus is on the employee to demonstrate that their situation falls within the special leave provision. However, the employer is required to seek additional information from the employee (if it feels information from the employee is lacking) in order to make a correct decision.

The issue here was whether the grievor “provided care” to her husband. The arbitrator agreed with the union that care is not restricted to medical, therapeutic and physical needs. He noted that the grievor did not apply for special leave on May 4 when the surgery appeared to be routine and where her attendance at the hospital would not have been related to the care. However, after the serious complications that day, the grievor saw her husband and was not sure he understood what had happened. He husband also said he was scared. The arbitrator commented:

When [the grievor] attended the hospital on May 5th she provided emotional care, was involved in providing feedback to the medical team during preoperative assessment, provided [her husband] with a bed pan and was there in case medical decisions were required.

The arbitrator concluded that in this case the grievor was providing care on May 5 and was entitled to special leave. He also noted that “this case does not stand for the proposition that in any situation where an immediate family member is hospitalized, an employee is entitled to special leave.” In particular, an employee’s personal need “to be there” does not entitle that employee to special leave.

[A decision on Quicklaw dealing with family leave is: WorkSafeBC v. Compensation Employees’ Union, [2012] B.C.C.A.A.A. No. 76. In this expedited arbitration, the collective agreement agreement provided for two working days of leave in case of the serious illness of a close relative. The grievor took time off to be with her hospitalized mother-in-law on two separate occasions during the same period of hospitalization. The issue was whether the two absences dealt with one or two separate illnesses. The arbitrators found that there were two separate illnesses and granted the grievor one more day of paid leave.]

Discipline and Discharge -- criminal convictions

the following post was submitted by Diane MacLean, formerly a member of the Human Rights Tribunal and an Industrial Relations Officer with the Ministry of Labour

Community Social Services Employers’ Assn. v. British Columbia Government and Service Employees’ Union, 

Date: May 22, 2012 Arbitrator: Vincent L. Ready

Grievance: Dismissal for sexually inappropriate conduct (summary dismissal)


The employer dismissed the grievor after investigating a report that he behaved in a sexually inappropriate way with a group home resident. In February 2012, the grievor was convicted of sexual assault relating to the same incident. As a result of the conviction, the union advised the grievor that they would not be proceeding to arbitration. However, the grievor had a right to appeal that decision, so the union applied for an adjournment of the arbitration hearing. The employer objected to the union’s application and applied to have the grievance dismissed without a hearing.

Analysis and Decision

The arbitrator commented on (Toronto (City) and C.U.P.E. Local 79, [2003] S.C.J. No. 64), a Supreme Court of Canada decision that stated it was inappropriate to re-litigate decisions of the Court. The arbitrator then applied the Wm. Scott analysis and concluded:

• The grievor’s criminal conviction, which was based on precisely the same incident, provides just and reasonable cause for discipline;

• The dismissal was not excessive in the circumstances.

In deciding that dismissal wasn’t excessive, the arbitrator stated:

The Supreme Court of Canada [in Toronto (City)] 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 parallels to the circumstances before me are striking. The current grievor … has been found guilty beyond a reasonable doubt of sexually assaulting a young woman in his care. Even without the direction of the Court, it would be unethical to expose other clients to that harm.

Board of School Trustees of School District No 48 v Canadian Union of Public Employees, Local 779
Date: October 1, 2012 Arbitrator: John Kinzie

Grievance: Termination (grievance dismissed)


The grievor, a 55 year old employee with a clean disciplinary record, had worked for the School District since 1994. His latest position was as a bus driver-custodian. He was charged with offences that predated his employment with this employer. The grievor pled guilty to two charges that he had touched two boys for a sexual purpose. He was sentenced to a community-based sentence of two years less one day, followed by two years of incarceration. During this four-year period, the grievor was not to be in any place where children under the age of 16 might reasonably be present and not to seek or maintain employment that would put the grievor in contact with children under the age of 16.

The employer terminated the grievor’s employment shortly after the sentencing, because the grievor was not capable of continuing his employment in light of its responsibility to provide a safe environment for its students. The union contended that the termination was excessive and that the grievor should be reinstated to a position where he is not exposed to children under the age of 16, for example, as a custodian in a secondary school on the graveyard shift.

Analysis and Decision

The arbitrator applied the Wm. Scott analysis. The first issue was whether there was just and reasonable cause for some form of discipline. The arbitrator referred to arbitral jurisprudence that recognized that an employer can discipline an employee for improper conduct off the job, subject to some of the following conditions:

(1) the conduct of the grievor harms the Company’s reputation or product;

(2) the grievor’s behaviour renders the employee unable to perform his duties satisfactorily;

(3) the grievor’s behaviour leads to a refusal, reluctance or inability of the other employees to work with him;

(4) the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees;

(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.” [See Millhaven Fibres Ltd., [1967] O.L.A.A. No. 4 (Anderson)]

The arbitrator agreed with other arbitrators that there has to be a connection between the criminal offence and the performance of the employee’s duties. He concluded that the connection existed here, stating:

I am satisfied that there is a clear and direct nexus or connection between the grievor’s offences and his responsibilities as a bus driver and custodian. As the cases make clear, the grievor in those jobs was in a position of trust and responsibility vis-à-vis the students on his bus and any students in the school he was cleaning. Because of those responsibilities, a high standard of care could be expected of him in those circumstances, and, in my view, the Employer and the parents of children in the school district would be entitled to be confident in their expectations that he would lie up to that high standard of care.

The arbitrator also commented that the responsibility of providing an education included the obligation to provide a safe environment and the grievor’s conviction called into question the safety of the environment for the students. The arbitrator also felt that the nature of the criminal conduct coupled with the nature of the grievor’s duties would impact negatively on the employer’s reputation within the school community. Therefore, the grievor had given the employer just and reasonable cause to impose some form of discipline on him.

The arbitrator then considered whether the termination of the grievor’s employment excessive in the circumstances. He agreed there were a number of mitigating circumstances: the offences had been committed some 20 years ago, the grievor’s clean disciplinary record throughout the 15 years of his employment, and his remorse. However, the grievor remained silent about very serious offences for almost 20 years until he was confronted by his. In addition, the employer and parents would have lost confidence in the trust they placed in the grievor “with the result that the employer-employee relationship would have seriously impaired if not destroyed”. The arbitrator recognized the Court’s concern that there was some uncertainty regarding the grievor’s risk to reoffend and that such uncertainty must be resolved in favour of the students. Therefore, termination of the grievor’s employment was not an excessive response in all of the circumstances of the case.

[Note: Although not applicable to the above decisions, there can be a human rights aspect to a dismissal because of a criminal conviction. Section 13(3) of the B.C. Human Rights Code provides:

A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

… because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

In the above cases, the offences were related to the employment, in particular the jobs involved close contact with minors or other vulnerable individuals. However, if these grievors applied for jobs where they were not in such contact, there would be a human rights issue if they were not hired because of these convictions. Another example would be if someone convicted of a white collar crime (i.e, an accountant or bank employee) and was refused a janitorial or production job. ]

Discipline and Discharge--Theft of time

This summary prepared by blog contributor Diane MacLean

Surrey (City) v Canadian Union of Public Employees, Local 402,
Date: October 29, 2012 Arbitrator: Mark J. Brown

Grievance: Dismissal (for alleged theft of time; grievance dismissed)



The grievor, a long-term employee, was a by-law enforcement officer. He was regarded as a good employee, having received many commendations. However, he had received discipline for loss of equipment, time theft and dishonesty and inappropriate conduct, all occurring in 2004 or earlier. Due to the nature of the employment, the employer had installed a GPS tracking system to monitor the location and movement history of by-law section vehicles (by-law enforcement officers are assigned specific vehicles). Employees also had fobs that would indicate the time of entering a door and the employer had video cameras in certain areas.

In March 2011, the grievor attended a meeting carrying his gym bag and his employer decided to investigate his actions. The employer found that the grievor was repeatedly taking breaks in excess of what was allowed and he was dismissed. At the hearing, the grievor testified that he honestly believed he did his best to make up time he spent at the gym, but did acknowledge that he misused company time.
Analysis and Decision

The arbitrator applied the Wm. Scott analysis. The union conceded that the grievor had given just and reasonable cause for some form of discipline. The real question to be addressed was whether dismissal was excessive in the circumstances. The arbitrator considered factors in the grievor’s favour: he was a long service employee, he apologized and the dismissal was an economic hardship. However, the arbitrator concluded that the grievor:

… did not work the required amount of time for an extended period of time. It did not occur only during the brief period when he was experiencing a break-up in a personal relationship. I concluded above that the [grievor] was aware he was not making up the time. Therefore it was not a spur of the moment isolated incident ...The nature of the offence is serious. The [by-law officer] position is unsupervised and requires trust. [The grievor] has also been disciplined previously for time theft. On balance, these factors outweigh the others noted above. Therefore I conclude that the employment relationship is irreparable.

Lack of consistency in employer response leads removal of warning letter

Here's an interesting arbitration award summarised by my friend and blog contributor Diane Maclean.  The summary is set out below and the case bears reading 
Telus Communications v. Telecommunications Workers’ Union,
Date: May 8, 2012 Arbitrator: Mark J. Brown

Grievance: Warning letter (grievance allowed)


The grievor was a senior and highly regarded employee. However, she and the employer did not see eye to eye regarding customer service. If a customer called with a problem that would take more than 10 minutes to resolve, an employee was to refer the issue to the appropriate department. If it would take longer than 10 minutes to resolve the problem, employees were to email 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 emails from the grievor per day,compared to an average of between zero and two, that is, she would be handling more of these calls herself, rather than referring them. The grievor usually had the highest or second highest call service time and often the lowest number of calls per day. The grievor’s manager reported that 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. Many letters were sent to the grievor and eventually she received a warning letter which indicated that a failure to improve could lead to dismissal, which led to a grievance.

Analysis and Decision

The arbitrator was satisfied that the employer had defined the required level of job performance and that these standards were clearly communicated to the grievor. In fact, the grievor testified that she understood the performance expectations. He also concluded that the employer had given the grievor reasonable supervision and instruction regarding the standard and a reasonable opportunity to meet the standard. As well, he concluded the employee was capable of performing to the standard and had met the target on several occasions. However, the arbitrator found that letters of expectation and/or warnings were 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 concluded that the warning letter was not justified because the steps in the performance management process had not been consistently applied. He also commented that the employer may have had cause to issue a warning for insubordination, but had not done so.