Discipline and Discharge arbitration updates

Guest Blog by Diane MacLean

Discipline and Discharge--BC Arbitration Awards

Arbitration Summaries, October 9, 2012


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

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


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

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

Background

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

Analysis and Decision

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

1. The previous good record of the grievor;

2. The long service of the grievor;

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

4. Provocation;

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

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

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

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

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

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

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

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

Current BC Decisions

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

Arbitrator: Rod Germaine

Background

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

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

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

Analysis and Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Arbitrator: Stan Lanyon

Background

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

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

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

Analysis and Decision

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

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

Arbitrator: James Dorsey, Q.C.

Background

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

Analysis and Decision

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

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

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

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

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

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

Arbitrator: Vincent L. Ready

Background

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

Analysis and Decision

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

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

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

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


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

Arbitrator: Emily M. Burke

Background

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

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

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

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

Analysis and Decision

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

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

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

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

The arbitrator concluded:

"Ultimately a review of the evidence leads me to conclude while the Grievor no doubt suffered some form of injury as confirmed by the MRI, she exaggerated her symptoms and through omission was not forthright with her doctors about her job duties and capabilities. It has not been easy to reach this conclusion but I find it unavoidable. The Grievor’s fundamental problem was to in effect claim complete incapacity due to her injury by her refusal to communicate or discuss light duties as requested by the Employer. She shifted responsibility to her doctors without providing appropriate information. That information included her job duties and her view as reflected in her own notes of July 2, 2009 that she could return to work with the job duties in the trainee/shipper position.
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"While the Grievor may not have believed she was being less than forthright, when measured against all the testimony, including her own doctors, it is clear her view of matters is clouded by anger with the Company which caused her to exaggerate her symptoms to the point it must be considered dishonesty. This problem was peppered throughout her testimony which affected her credibility in this case. The Grievor also would not accept other views; in particular those of the Company on matters associated with the First Aid duties."

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

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

Arbitrator: Christopher Sullivan

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

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

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

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

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

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

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

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

• the grievor is a relatively short-term employee;

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

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

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

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

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

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

• lack of trust between the grievor and the employer;

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

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

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

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

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

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

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

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

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

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

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

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

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






 

DISCIPLINE AND DISCHARGE

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

GUEST POST by Diane MacLean

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

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

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

Further, Section 89 provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following are five 2012 cases summarized in this post:

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

Next post: more discipline and discharge arbitration summaries!

Case Summaries

Wm. Scott & Co. (Re)


Date: July 26, 1976

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

Background

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

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

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

Analysis and Decision

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

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

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

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

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

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

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

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

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

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

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

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

Grievance: Discipline – suspension without pay (grievance dismissed)

Background

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

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

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

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

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

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

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

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

Analysis and Decision

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

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

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

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

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

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

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

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

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

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

Grievance: termination (grievance allowed)

Background

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

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

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

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

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

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

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

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

Analysis and Decision

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

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

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

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

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

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

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


In balancing the interests, the arbitrator considered the following:

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

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

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

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

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

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

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

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

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

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

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

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

Grievance: Two discipline grievances; both grievances allowed

1) Price Grievance

Background

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

Analysis and Decision

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

2) Chang Grievance

Background

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

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

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

Analysis and Decision

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

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

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

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

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

Grievance: three day suspension for insubordination (grievance dismissed)

Background

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

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

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

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

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

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

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

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

Analysis and Decision

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

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

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

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

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

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

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

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



Employers must provide union with e-mail addresses, BC LRB rules

In Viking Air v. CAW B87/2012 a reconsideration panel chaired overturned an original decision that had ruled the employer did not have to provide the union with its members' e-mail addresses. In the original decision Vice-Chair Topalian concluded that because the employer had already provided the members' addresses and telephone numbers and because the union could ask its members directly for their e-mail address, the e-mail addresses were not necessary for the union to meet its representational obligations under the Labour Code.

The reconsideration panel found that this "minimally adequate or bare necessity" approach was inconsistent with the Board's jurisprudence. The Board confirmed that the test set out in P. Sun’s Enterprises (Vancouver) Ltd., BCLRB No. B388/2003(http://www.lrb.bc.ca/decisions/B388$2003.pdf ) should be "interpreted and applied broadly enough to facilitate efficient communications between a union and the employees in its bargaining unit."

The test developed by the Board in P. Sun's and other cases contains the following questions:

1. does the employer have a sound business reason for its refusal to provide
the information;
2. can the information be easily supplied; and
3. does the union need the information in order to fulfill its statutory obligations to represent the employees in the bargaining unit.

The decision can be found at http://www.lrb.bc.ca/decisions/B087$2012.pdf.

Arbitrators and reasonable apprehension of bias

Among the recent summaries of BC arbitrations forwarded to me by Diane Mclean is a very interesting and useful decision by Arbitrator Ron Keras on when an arbitrator should step down for a reasonable apprehension of bias.   The employer applied to the LRB for a review of the decision and the LRB rejected the employer's application on March 27, 2012. 

Background


The arbitrator was appointed under Section 104 of the B. C. Labour Relations Code. Under this section, the arbitrator is appointed by the Director of the Collective Agreement Arbitration Bureau. The employer raised a preliminary objection, arguing that the arbitrator should decline his appointment because of a reasonable apprehension of bias. The employer testified that the arbitrator’s sister owned a competitor company. The employer was not alleging actual bias but the possibility or potential appearance of bias. In the alternative, the employer also suggested that the arbitrator ask himself if he is comfortable proceeding on a non-consensual basis.

Analysis and Decision

The arbitrator started by stating that the test for reasonable apprehension of bias is grounded on the necessity for confidence in the impartiality of adjudicators. The question to be addressed in this case “is whether the employer’s apprehension is reasonable in the circumstances based on the evidence”. The arbitrator noted there was no evidence or allegation the arbitrator had an interest in his sister’s company. The arbitrator then referred to the principles to be applied as summarized   Taylor Ventures Ltd.

(i) a judge’s impartiality is presumed

(ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified;

(iii) the criterion for disqualification is the reasonable apprehension of bias;

(iv) the question is what would an informed, reasonable and right minded person, reviewing the matter realistically and practically, and having thought the matter through, conclude;

(v) the test for disqualification is not satisfied unless it is proved that the informed reasonable and right minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly;

(vi) the test requires demonstration of serious grounds on which to base the apprehension;

(vii) each case must be examined contextually and the inquiry is fact specific. (emphasis in the original)

The arbitrator considered these principles. First, the arbitrator noted that  the employer had not proven a current or past business or professional relationship between the arbitrator and the competitor company. The arbitrator commented that the employer’s application began on the basis that the arbitrator had significant knowledge about his sister’s business. The arbitrator had earlier provided information about his knowledge and commented that:

The information provided, and the manner in which it was acquired, is indicative of someone who takes particular care in terms of impartiality, including the appearance of impartiality, with respect to his status and reputation within the profession.

The arbitrator noted that the employer was concerned that strategic business information divulged in an arbitration hearing could be provided to a competitor, but no evidence was provided in regard to this. In addition, arbitral decisions, which often review evidence, become public when they are published. The arbitrator, in applying the test, found there was insufficient factual evidence to establish the circumstances justified disqualification.

The arbitrator also considered the employer’s suggestion that the arbitrator might be more comfortable declining this appointment. The arbitrator noted that under Section 104 the parties might not receive their arbitrator of choice but that was the nature of the statute and “to some extent this form of adjudication is of the Parties own making”. The arbitrator also considered that while stepping aside may seem to be an attractive option, he was persuaded by the union’s arguments that he had an obligation to hear the matter and therefore would not step aside.   

The employer made an unsuccessful application to stay the award at the Labour Relations Board.  The Board was not satisfied that its long-standing policy of implementation pending applications for review should be departed from in this case.  

The Labour Relations Board issued its reconsideration decision on March 27, 2012.  The Board declined to set aside the decision after a thorough review of the case law on the subject.  The Board applied the following test: “what would an informed person, viewing the matter realistically and practically, and having thought the matter through conclude: would he or she think that it is more likely than not that the adjudicator, whether consciously or unconsciously, would not decide fairly.” As well, the ground for apprehension must be substantial or serious. The Board concluded that the particular circumstances were insufficient to give rise to a reasonable apprehension of bias. 

Failure to prove source of marijuana odour overturns a 30 days suspension

Below is Diane Maclean's summary of  Arbitrator Ronald Keras' decision issued January 23, 2012 in British Columbia Maritime Employer’s Association v. International Longshore and Warehouse Union, Canada, 2012 CanLII 5484 (BC LA) .   The case is a good illustration of  how arbitrators deal with the credibility of witnesses and what the employer must prove to establish it had just and reasonable cause to impose discipline.  

Summary

Background

The grievor had been dispatched to an employer who has a zero tolerance for alcohol and drug use on its site. The foreman entered the dock office where the grievor was working by himself. The foreman smelt the distinct odour of marijuana. He did not confront the grievor and he did not see him smoking or observe smoke in the air. The foreman contacted the head foreman who came to the trailer and also smelt marijuana. He asked the grievor if he had been smoking marijuana and he denied it. The grievor was fired and sent home. The Association also suspended the grievor from all work for a period of 30 days and warned him that future incidents could lead to further discipline and, potentially, deregistration.

The grievor said he had worked on the waterfront for over 40 years. He testified that the work site was covered by cameras and that the dock office is used by everyone and people are in and out during the night. The grievor was aware of the employer’s zero tolerance policy. He testified that he did not smoke marijuana on shift or before shift. The office contained dirty coveralls and garbage and would smell.

The union representative who met with the grievor that night said there was no smell of marijuana in the dock office when he arrive. He also testified that he works at the site 85% of the time and that it was not uncomm to smell skunk, which has a similar smell to marijuana. He also testified that the grievor did not smell or look like he was under the influence.

Analysis and Decision

The arbitrator discussed assessing the credibility of witnesses. First, to determine if there is a true conflict in the evidence and, second, if not a conflict, to arrive at an explanation for the opposite conclusions arrived at from the same set of circumstances. The arbitrator was satisfied that that the foremen believed they smelled marijuana. The arbitrator agreed that weight can be given to non-expert testimony but “such weight must take into account that they are not experts and that there is evidence of competing odours on the Neptune site”. The arbitrator was also satisfied that the grievor’s behaviour was not particularly suspicious, stating further that:

There was no evidence of the Grievor trying to conceal anything or that he was looking sheepish or guilty or that he appeared to be under the influence of having recently smoked marijuana. As a consequence the Association’s case succeeds or fails on the circumstantial odour evidence alone, whether it can be found to be the odour attributed to the smoking of marijuana and if so, can it be attributed specifically to the Grievor. It is the odour alone that is the key evidence in this case as the Foremen did not call the RCMP or Neptune Management. Consequently no one asked the Grievor to empty his pockets; there was no search of the Grievor or of the Grievor’s property. There was no evidence proffered of a search of the office for any corroborating paraphernalia or residual (roach) evidence associated with the smoking of marijuana. There were no “professional experts” involved. (McDonnell Douglas, supra)

The onus is on the Association to prove, on a balance of probabilities that the grievor smoked marijuana at work. There are two hurdles. First, is to prove to the arbitrator that the odour was of marijuana. Second, is to prove the odour was the result of the grievor smoking marijuana. Here, the Association has established a prima facie case that there was an odour and that the odour may be mariuana and the grievor was the only one in the office at the time.

Now it turns to the union to offer an explanation. The grievor denied smoking marijuana and one of the union’s witnesses testified that it was not uncommon to smell skunk, which had a similar smell to marijuana. The arbitrator commented:

In the instant case there are two possibilities that don’t involve the Grievor. One is that the odour was not as a result of someone smoking marijuana. The other possibility is that someone else may have been smoking marijuana and came into the office close to the time when Mr. Cross entered the office and stayed long enough to have the odour remain. Of course, the third possibility is that the Grievor was smoking marijuana in the dock office. For that possibility to be found more probable than not would require concluding that the first two possibilities were less probable and discounting the Grievor’s testimony about the stupidity of smoking marijuana in the dock office given the open access to the dock office and the frequency of visitors. His evidence about access and visitors was corroborated by Union witnesses and that evidence was unrefuted.

The arbitrator was not satisfied that the Association had discharged its onus in this case. He did not make a finding about the grievor’s innocence, finding instead that there was insufficient evidence to support the foremen’s conclusion that the odour was marijuana and that the odour was because the grievor was smoking marijuana in the dock office.