Insubordination, profanity, unsafe conduct and workplace negligence and Post Traumatic Stress Disorder--some recent BC arbitration awards on discipline

The following are based on summaries provided by Diane MacLean.

Insubordination

1. Arbitrator John Hall upheld a three day suspension for insubordination in West Fraser Mills Ltd v. Unites Steel Workers [2011] BCCAAA No. 133.  The decision appears not to have been posted on CanLii but is available on Quicklaw.  The LRB recently dismissed the union's application for review and   that ruling  is available free. 

The decision contains a good discussion on what must be proved in order to establish that a refusal to follow an order amounts to insubordination.

There are three essential components:
1. a clear order understood by the grievor;
2. the order must be given by a person in authority and,
3. the order must be disobeyed.

In this case the grievor refused to follow two direct orders given to him by the charge hand during his shift in a saw mill.  The refusal was also accompanied by profanity directed at the charge hand and in a meeting with the supervisor.

The union argued that the charge hand was not a "person in authority" based on the collective agreement definition  that set out that a charge hand "can exercise job direction in his work area, all of which shall be relayed to him by supervision."  The arbitrator ruled that the  definition should not be taken literally  and that the clause incorporated a more general delegation of responsibility  that included authority to direct when employees will take their lunch breaks. 

On the matter of the use of profanity, the arbitrator concurred with evolving jurisprudence that rejects the argument that profanity shouldn't attract discipline because it happens to be  "common shop talk" in a particular workplace. 

The arbitrator found that the discipline was not excessive in the circumstances.

2.  In Teck Coal Ltd (Line Creek Operations) v. IUOE Local 115    Arbitrator Mark Brown upheld the dismissal of a three year employee who was involved in an unprovoked altercation with a co-worker.  The grievor had a previous disciplinary record for inappropriate behaviour and insubordination.

Unsafe conduct, workplace negligence

3. In Richmond Steel Recycling v. Ironworkers Local 712 [2011] BCCAAA No. 132 Arbitrator Joan McEwen upheld the termination of an employee who failed to comply with the employer's safety policy requiring any employee working more than six feet off the ground to be "tied off".  The grievor was seen standing on a conveyor belt some 20 feet above a concrete surface without being secured.

The union argued that although some form of discipline was warranted, discharge was excessive because there were mitigating circumstances.  The union alleged that the policy was unevenly applied and that the employer had discriminated against the grievor based on his age and ethnicity.  The arbitrator rejected these arguments.  The arbitrator also noted that the grievor did not take responsibility for his conduct thus undercutting the argument that he was amenable to the principles of corrective discipline.

4. In Vitalaire Canada Inc. v. Teamsters Local 213   Arbitrator David McPhillips upheld the termination of a short term employee whose negligence in parking the company truck caused it to roll down a hill and push a parked car into a fence and a shed.  The arbitrator did not believe the grievor's evidence that he had engaged the air brakes and turned the wheels appropriately.  The arbitrator found that termination was not excessive given that the grievor had been employed for one and half years, that his previous disciplinary record included carelessnes about safety and failure to accept responsibility, and that the consequences of his misconduct were serious.  In addition the arbitrator noted that the grievor had not acknowledged any responsibility for the incident.

Non-culpable behaviour and PSTD (Post Traumatic Stress Disorder)

5.  Arbitrator Emily Burke's decision in Government of BC (Riverview Hospital) v. BCNU issued on December 8, 2011 is worth a good read.  The grievor was a nurse who suffered Post Traumatic Stress Disorder as a result of serving in Afghanistan.  While taking five psychiatric patients from Riverview on an outing in a van, the grievor dealt with one of the patients inappropriately.  The patient became severely disruptive and rather than seeking assistance, the grievor stopped the vehicle, told the patient to get out and left the patient there.   
The Arbitrator concluded that while in the normal course this reckless conduct would warrant discipline, the medical evidence established that the circumstances caused the "grievor to lose significant capacity for rational decision making and ability abiliy to perceive other options."  As a result there was no cause for discipline and the termination was overturned.

October 2011 BC Arbitration Awards of Note

My colleague Diane MacLean, formerly of the BC Human Rights Tribunal,  brought to my attention a number of arbitration awards issued by British Columbia arbitrators during the month of October.   I have provided the CanLii link where it is available.

Summit Logistics v. Retail Wholesale Union Local 580,  a decision of Arbitrator Mark J. Brown in which he dismissed a union grievance that employees were entitled to both severance and post-retirement benefits when a plant closed.  The case contains a discussion of how extrinsic evidence such as bargaining history and past practice can be used in contract interpretation cases.  Brown found that while the employees and the union may have believed that they had achieved dual entitlement when they negotiated a stand alone agreement related to the plant closure,  such belief was not supported by the express language of the agreement and the extrinsic evidence did not support the existence of mutual intent of the parties.  The lesson from this, of course, is to make sure that the language of an agreement is clear and that both parties have the same understanding of what that  language means.   

Kenny Sekhon Contracting LTd, v. Teamsters Local Union 213 (this decision is not yet available on CanLii, but may obtained through Quicklaw), a decision of Arbitrator Marguerite Jackson, Q.C. issued on October  7, 2011 and dealing with a preliminiry issue of jursidiction under s.104 of the Labour Relations Code.  Section 104 of the Code allows either party to refer a matter to expedited aribtration whereby an arbitration must commence within 28 days of referral.  However the referral cannot occur until after all of the steps of the grievance procedure (short of aribtration) have been exhausted.   This was an employer grievance that the employer had referred to expedited arbitration and the union made a preliminary objection that the arbitrator was without jurisdiction because because the grievance procedure had not been exhausted.  The arbitrator agreed (after 3 days of hearing!). This is a good case to understand the strict requirements of s.104.

Communication Energy and Paperworkers' Union, Local 1123 v. Catalyst Paper (Elk Falls Division), a decision of Arbitrator James Dorsey Q.C. issued on October 11, 2011 in which he dismissed a union grievance seeking severance on behalf of five employees who were on WCB when the paper mill closed.  The collective agreement provided that severance would be paid when an employee lost her job due to a decision to permanently close the paper mill.  The arbitrator concluded that the employement of employees on WCB was not terminated even though the mill closed.  They continued to be employees.  However, whether or not their employment terminated when they were no longer receiving workers compensation benefits and were then entitled to severance allowance was outside of the scope of that particular grievance.

Telus Communication v. TWU , a decision of Arbitrator John Kinzie issued on October 20, 2011 contains an interesting discussion of damages for negligent misrepresentation and when these will be available.  

Prince George Citizen v. CEP Local 2000, a decision of Arbitrator Brown issued October 18, 2011 in which he dismissed a termination grievance.   The grievor was terminated for making threats of violence against other employees to the shop steward, being absent from the workplace without authorization, gross insubordination and not checking e-mails.  The union denied that threats were made and while conceding that the grievor's conduct was disrepsectful, they argued that termination was excessive.  After applying the tests set out in Wm. Scott [1077] 1 Can. L.R.B.R. 1, the arbitrator upheld the termination for three reasons:  he had anger management issues and did not accept assistance offered by the employer, he was not a credible witness and any remorse shown at the hearing was self-serving.

Summaries of British Columbia Arbitration Awards issued in October

The following summaries are provided by Diane MacLean.  For ease of reference I have added the links to CanLii and suggested why you might want to read them:

The first, Summit Logistics Inc v. Retail Wholesale Union, Local 580, a decision by Arbitrator Mark is a good example of why it is so very important for both parties to a collective agreement to be very clear about what they have agreed to


Date: October 3, 2011

Arbitrator: Mark J. Brown
Grievance: Severance/Retirement Policy (grievance dismissed)

Summary

This arbitration was about whether an employee can receive both severance and post-retirement benefits upon a plant closure.

The employer provided distribution services for Canada Safeway. In August 2010, Canada Safeway awarded its distribution services contract to competitor of the employer and the employer announced that it would be closing effective February 28, 2011. The employer then provided notice of termination to the bargaining unit employees by one of three letters reflecting three possible termination dates. The union and the employer then took part in discussions as provided for under s. 54 of the Labour Relations Code. The union filed three grievances claiming: a) special severance; b) for employees taking early retirement, both severance pay and post-retirement benefits (“Sev/Rev” grievance); and c) vested retirement benefits. The s. 54 discussions resulted in two agreements, one of which was referred to as the “Stand-Alone Agreement” (SAA).

The “Sev/Rev” grievance was initially heard in December 2010 and resulted in an award finding the following: a) that the collective agreement did not confer an entitlement to both severance and post-retirement benefits upon a closure and b) that the SAA itself conferred an entitlement to both severance and post-retirement benefits for employees taking early retirement in the context of a closure.

The employer applied to the B.C. Labour Relations Board for a review of this decision under S. 99 and it found that the arbitrator had denied the employer a fair hearing. The grievance was remitted back to the arbitrator to determine whether he had the jurisdiction to determine whether the SAA conferred the benefits in issue and, if so, the proper interpretation of the agreement following a hearing and argument. The employer also applied for a reconsideration of the S. 99 decision which upheld the S. 99 decision. The arbitrator considered these issues and found that the interpretation of the SAA was not within the scope of the Sev/Rev grievance so he could not make a finding on whether that agreement created an entitlement to both severance and post retirement benefits. Then, the union filed this present grievance under the SAA alleging that the employer’s failure to pay both severance pay and post-retirement benefits was a breach of the “Stand-Alone Agreement”.

In addition to the documents that constituted the collective agreement, two representatives of the parties, who had been present when the SAA was negotiated, testified at the arbitration. The union representative testified that the dual entitlement issue had been raised early in the discussions. He also testified that after the SAA had been signed, he phoned the employer representative stating that he would be telling people that the SAA conferred retiree benefits (not sure if the arbitrator actually meant severance pay) to all employees and if the employer’s representative did not agree, he should call him back. He testified that the employer representative never called him back. The union representative “agreed in cross-examination that he never said to the Employer in discussions that the language gave them dual benefits. He stated he advised his committee but then said to the Employer it was very good language on the bridge” (this referred to using unused sick leave as a retirement bridge).

The employer’s representative testified that dual benefits were not discussed in the context of the section of the SAA granting the bridge. He also said that the union representative left a message, but it was simply a message to call him. He asked another employee representative to call him back.

The arbitrator stated that the onus is on the union to establish that the parties agreed to a dual entitlement. This would be established either by the language of the collective agreement itself or in conjunction with extrinsic evidence such as past practice or bargaining history.

In regard to the SAA, the arbitrator said:

The Union has not pointed me to any specific language in the Stand Alone Agreement that it says expressly provides for a dual benefit [entitlement?] to severance and retirement benefits.

I conclude that the August 16th letters to employees do not contain a representation that employees will receive both severance and retirement benefits. The letter notes the employee “must continue to work up to the end of your last scheduled shift in order to qualify for severance”. It goes [on?] to note that “Employees who resign, retire or are discharged for cause prior to their final scheduled shift will not receive severance.

While an employee may have read the letter and assumed that if they retired on their final shift, as opposed to prior to their final shift, they would be entitled to severance, the parties did not agree with that conclusion based on the conduct. It is clear based on discussions during the Stand Alone Agreement discussions that the parties were at odds on this matter.

The arbitrator then considered the extrinsic evidence provided by the parties. The arbitrator referred to the discussion of extrinsic evidence in Coquitlam School District 43 v. Coquitlam Teachers’ Assn., [1993]B.C.C.A.A.A. No. 360, in particular that:

…it is the language selected by the parties that dominates in any disputed interpretation and that any departure from the apparent meaning of the language requires “very persuasive and unequivocal parole evidence”…

…

It is only where extrinsic evidence discloses mutuality between the parties with respect to a particular meaning inconsistent with the written language that “a bona fide doubt” will arise about what the parties meant in their selection of language which appears clear on its face…

While the arbitrator agreed that severance payments and retiree benefits can be combined by agreement and that the parties had expressly agreed to do so in the past, he did not view it as a “past practice” as the term is used in arbitral jurisprudence, just that the concept was not new to these parties.

The arbitrator concluded that the intrinsic evidence was not helpful and that while the employees and union may have believed that they had achieved the dual entitlement, without express language, the grievance must be dismissed.

Successor employer must pay outstanding union dues

In the West Fraser Mills Ltd. (Cariboo Division) v. United Steelworkers, Local 1-424 (Dues Payments Grievance), [2011] B.C.C.A.A.A. No. 108 (No. A-069/11) issued September 5, 2011 arbitrator Robert Pekeles allowed the union's grievance that the employer had failed to remit dues.  The following summary is provided by Diane MacLean.


The employer amalgamated with Weldwood in 2005 and became the successor employer. The union and the employer had a Letter of Understanding (“LOU”) confirming an agreement that had been in place since 1955. The LOU provided, in part, that “in regard to logging contractors employed by the Company in the Quesnel area”:

We shall hold our uncertified logging contractors responsible to abide by the relevant portions of the present Agreement, in particular as it regards wage scale, holiday pay and seniority clauses. Dues for all employees and a list of employees for whom dues are submitted must be submitted to the Local Union once a month, without application for Union membership.

Dues deductions went smoothly until 2006, when the logging contractors started logging not only on the old Weldwood forest tenures, but also on some West Fraser tenures. At some point, dues from some of the logging contractors were no longer being remitted to the union, without any explanation. At the hearing, the employer said that dues were no longer payable and the LOU no longer applicable because the tenures were untraceable and the contractors were logging on all of the tenures, i.e., tenures previously held by West Fraser and those previously held by Weldwood.

The arbitrator stated that “the primary resource for determining the mutual intention of the parties is the language of the Collective Agreement itself.” Given the age of the agreement (since 1955), there was no evidence of negotiation history, but there was evidence as to practice. The arbitrator said he had no doubt about the proper meaning of the collective agreement language in question:

I agree that under the terms of the Collective Agreement, the “Company” was Weldwood (Cariboo Division). In 2005, Weldwood and West Fraser merged. The Employer became the successor employer. As such, the Employer became bound by the Collective Agreement. The Letter of Understanding is part of the Collective Agreement. Thus, just as Weldwood (Cariboo Division) was bound by the Letter of Understanding “in regard to logging contractors employed by the Company in the Quesnel area”, so the Employer became so bound. Just as Weldwood (Cariboo Division) was bound to “hold our uncertified logging contractors responsible to abide by the relevant portions of the present Agreement”, so the Employer became so bound.

The arbitrator did not accept the employer’s argument that the agreement did not apply to contractors who no longer logged exclusively on tenures held by Weldwood. The important issue was whether the logging contractors were employed in the “Quesnel area”. The arbitrator order the payment of the dues with interest.

LRB overturns decision of a Claims Review Committee

Vice Chair Elena Miller's decision in Matson v. Interior Health Authority issued on November 15, 2011 will be of interest to those unions where long term disability claims are adjudicated by a claims review committee.  This regime is to be found in the health care collective agreements, the provincial public service and other, primarily, public sector collective agreements where the plan is self-funded but its administration is contracted to one of the usual insurance companies.  It is well established that these committees, made up of three doctors whose jurisdiction is limited to reviewing medical decisions, fall within the broad definition of an arbitration board and their decisions are reviewable pursuant to s.99 of the Labour Relations Code.

The Vice Chair set aside the decision and remitted the matter back to the committee because the CRC's decision did not provide reasons which allowed the basis of the decision to be understood.  The LRB stated that while the decision recounted a lot of evidence, there was no link or "meaningful references or connections ...made between that evidence and the conclusion that Matson is not totally disabled from any occupation."

It is a useful decision to consider when assessing whether to pursue a s.99 review of a CRC decision, particularly where there vague allegations that a claimant may be feigning the disability.

Denial of sick leave benefits leads to damages for mental distress

In Fortis v. IBEWarbitrator Mark Thompson awarded damages of $5000 for mental distress based on the principles set out in 2006 by the Supreme Court of Canada in Fidler v. Sun Life Assurance Co. of Canada.  In that case the SCC upheld an award of $20,000 for damages for mental distress suffered by Ms. Fidler as a result of Sun Life's unwarranted delay in paying out long term disability benefits.
The Fortis decision contains a very useful summary of arbitration awards that have applied Fidler .  The arbitrator concludes that damages for loss of sick leave benefits should "be granted when there is medical evidence of a connection between the stress or other psychological conditions (“mental distress”) and the actions of the employer or insurance carrier."

On the facts before him Arbitrator Thompson made the following findings:

Damages in this context are not a punishment to the Employer, but compensation to the employee. 

Based on the evidence presented, I conclude that Mr. Pearson’s inability to obtain sick leave when he and his physicians believed that he should not be working caused Mr. Pearson to suffer mental distress as the term is used in Fidler. Dr. Lowden testified that he knew of Mr. Pearson’s difficulties with Manulife were stressful to his patient, and he thought that that this stress made his pelvic pain worse. Dr. Jewett was asked if Mr. Pearson’s lack of financial support because of his problems in obtaining sick leave had an impact on his health and ability to work. Dr. Jewett responded that he is not a psychiatrist, but he thought someone in Mr. Pearson’s job should be at his psychological best. Dr. Schieman wrote a letter to Dr. Lowden in October 2009 stating that the disagreement between Mr. Pearson and Manulife was causing him stress. Consequently, Dr. Schieman was to write another letter to Manulife concerning Mr. Pearson’s medical condition.

I believe the evidence of the three physicians involved in Mr. Pearson’s illnesses constitute the “medical evidence” as contemplated by the Court in Fidler, and the second condition in para. 47 of that case. It is consistent with the conclusions of other adjudicators who have been asked to answer similar questions. This evidence demonstrates that Mr. Pearson suffered mental distress because of a violation of the sick leave provisions of the collective agreement. Therefore, I conclude that damages are warranted. As I have noted above, I do not conclude that either Manulife or the Employer acted unreasonably or egregiously. Under these circumstances, I conclude that an award of $5000 in damages is appropriate

(with thanks to Diane MacLean for her contribution)Fortis v. IBEW

Arbitration award balances employees' privacy interests and employer's legitimate business objective

Below is a summary of the arbitration award issued by arbitrator Heather Laing on August 12, 2011 in the case of Spectra Energy v. Canadian Pipeline Employees' Association prepared by Diane MacLean.

Summary


The employer introduced a policy which required employees who drive company owned, leased, or rented vehicles an average of one or more times per week, to give consent to the employer to access their B.C. Motor Vehicle Records.

The union argued that the policy was not reasonable and violates the employees’ privacy rights. The union said the appropriate analysis is twofold: Is the policy reasonable and what is the balance between the employer’s need for information and the employees’ right to privacy? If the balance favours privacy, then the policy is not reasonable and cannot be implemented. The union argued that the policy was not reasonable for the following reasons: no evidence of any increase in safety incidents or that the application of the policy would result in a safer workplace; no evidence that the company’s existing safety programs, combined with programs of third parties, are insufficient or inadequate to address the employer’s safety concerns. As well, the union argued that there was no evidence that off duty driving conduct is a good predictor of behaviour at work and that there are less intrusive ways to accomplish the employer’s goals.

The employer argued that the policy was issued in aid of a company core goal of safety. The policy is justified because it is a reasonable safety initiative and improving performance is a reasonable way to minimize risk (high risk drivers would be required to take further training).

The arbitrator identified the issue as “how to properly balance the privacy rights of employees in relation to the legitimate business interests of the employer.” A review of the arbitral jurisprudence reveals some basic principles had been developed:

• Each case is dependent on its own facts and is to be decided on the basis of the particular circumstances involved;

• The nature and significance of the particular privacy rights and the employer’s business interests in issue must be clearly identified and carefully weighed;

• Privacy rights arising from the application of statute and regulation are given greater weight than rights created in a particular workplace under the terms of a given collective agreement; and

• An arbitrator’s inquiry into the merits of an alleged intrusion into a privacy right established by statute or regulation should take into account the public interest that may be involved.

Both parties referred to Arbitrator Smith’s findings in Re Finning International Inc. and International Association of Machinists and Aerospace Workers, Local 99 (2004), 135 L.A.C. (4th) 335. The arbitrator noted that it provided “a carefully reasoned analysis and approach based on a thorough review of the arbitral principles to be applied” and was directly applicable to the facts and circumstances of this case. In regard to who bears the burden to prove the rule was reasonable, the arbitrator in Finning stated:

… if the Union establishes that the rule infringes a legitimate right of privacy, the Employer must demonstrate that it is reasonable in the sense of being rationally connected to and advancing a legitimate business purpose which outweigh the employee’s right to privacy.

The arbitrator in this case noted that the employer:

… produced insufficient evidence and no demonstrable reasons that provide a factual basis for the intrusion into the privacy rights of the employees. The employer has the burden of establishing the reasonableness of the rule “… having regard to the availability of less intrusive alternatives.””

In particular, the arbitrator found there was no evidence that safety was a growing or newly urgent problem for the employer. As well, in British Columbia, the requested records are personal and are protected by statutory privacy rights. Finally, although the employer was to be commended for being safety conscious, there were alternative ways of achieving this goal without intruding on the privacy rights of employees. The arbitrator concluded:

I find the policy is over reaching and goes over broad; it requires employees to produce information that as a matter of law is personal to them. No reasonable basis for such interference with the employees’ rights has been established. The net effect is that the policy, which requires an employee to sign a consent form, is at variance with the public policy in this province designed to protect such personal information. Arbitrators should not interfere with such important rights, absent compelling circumstances. No such situation exists here.

(Note: some of the union’s privacy concerns are interesting. The policy was going to be assigned to another company which was a subsidiary of an American company. This company would receive the records, assess who was a high-risk driver and then contact the employer to provide a Driver Improvement Plan. The union’s witnesses where concerned about where the information was being sent, who would have access to it and for what reason would the information be used. In particular, they expressed concern about:

• The number of the employer’s employees who would have access to the information;

• The contracting company’s computerized system and if it could result in identity theft;

• Since the contracting company was a subsidiary of an American company, would it be required to provide employee’s personal information to Homeland Security?

• Once they signed the consent form, it appeared that it would not be sought again annually, and that the original consent could be used to access records at any time thereafter;

• Why was the employer asking for information about off-duty driving when it already had information about on-the-job driving?

• Why were other safety initiatives, that did not involve a violation of privacy rights ,not being implemented?

• That information provided by the employer said that a Driver Improvement Plan could include revoking or limiting driving privileges which could affect an employee’s job.)