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.

Certification--Continuous Work Process and scope of the bargaining unit

In Ming Pao v. CEP Local 2000 issued on February 7, 2012 the Labour Relations Board upheld the dismissal of the employer's objection to the certification of  press-room employees. While confirming that employees in one continuous work process are included in one bargaining unit, the Board u

More Discipline Arbitration Awards-- denials of wrongdoing, failure to show remorse and excessive internet usage

1) FortisBC Energy Inc. v. International Brotherhood of Electrical Workers, Local 213, [2011] B.C.C.A.A.A. No 130 (No. A-086/11)
The grievor was dismissed for having a prostitute in a company vehicle during work time. This case is interesting for its discussion about credibility. As well, the arbitrator commented on the grievor’s ongoing denial of wrong doing and its effect on the employment relationship. Arbitrator Keiras upheld the dismissal.

2) British Columbia Hydro and Power Authority v. International Brotherhood of Electrical Workers, Local 258, [2011] B.C.C.A.A.A. No. 123 (No. A-080/11]
 Arbitrator Irene Holden upheld the imposition of an 8 day suspension.  The grievor  was given a suspension for refusing to do work, instigating a work stoppage, and writing an inaccurate and insubordinate letter about the employer and one of its managers. Some of the issues addressed are: protection of the shop steward when involved in legitimate activities; failure to show remorse; and failure accept responsibility for his role in events. 
3) In Health Employers’ Assn. of British Columbia v. Health Sciences Assn. of British Columbia [2011] B.C.C.A.A.A. No. 125 (No. A-083/11)  Arbitrator Nick Glass overturned the disimissal of an employee for time theft and excessive internet usage. Some of the issues addressed here: technical problems in determining personal internet use at work; the distinction between time theft and wasting time; the importance of evidence showing the ability of the grievor to change his ways; and the importance of an apology and expressing remorse. In this case, the arbitrator substituted a 15 day suspension for the dismissal.

(notes:  these decisions are not yet available on CanLii but are available on QuickLaw; and also,  many thanks to Diane MacLean for her contribution)

Estoppel

I'm often asked to explain the doctrine of estoppel and how it applies in the labour relations context.  I found this nice quote in University Health Network v. Ontario Nurses Association issued two weeks ago:

54. Both parties referred to the recent Supreme Court of Canada’s recent decision in Nor-    Man  Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 (CanLII), 2011 SCC 59 in which the Supreme Court upheld an arbitrator’s award that had adapted and applied the equitable doctrine of estoppel. The Supreme Court found that labour arbitrators are not legally bound to apply equitable and common law principles, including estoppel, in the same manner as courts of law. Labour arbitrators have a different mission, informed by the particular context of labour relations.


55. The Supreme Court cited Paul C. Weiler’s, (then) Chairman of the British Columbia Labour Relations Board, decision in Re Corporation of the City of Penticton and Canadian Union of Public Employees, Local 608, (1978), 18 L.A.C. (2d) 307 (B.C.L.R.B.), at p. 320 regarding why the doctrine of estoppel must be applied differently in a grievance arbitration than in a court of law:


    " ...a collective bargaining relationship is quite a different animal. The union and the   employer deal with each other for years and years through successive agreements and renewals. They must deal with a wide variety of problems arising on a day-to day basis across the entire spectrum of employment conditions in the workplace, and often under quite general and ambiguous contract language. By and large, it is the employer which takes the initiative in making operational decisions within the framework of the collective agreement. If the union leadership does not like certain management actions, then it will object to them and will carry a grievance forward about the matter. The other side of that coin is that if management does take action, and the union officials are fully aware of it, and no objection is forthcoming, then the only reasonable inference the employer can draw is that its position is acceptable. Suppose the employer commits itself on that assumption. But the union later on takes a second look and feels that it might have a good argument under the collective agreement, and the union now asks the arbitrator to enforce its strict legal rights for events that have already occurred. It is apparent on it face that it would be inequitable and unfair to permit such a sudden reversal to the detriment of the other side…."

Employer who terminated employees on LTD must pay severance

This summary was prepared by Jim Quail, Legal Director at the Canadian Office and Professional Employees Local 378.

The BC Court of Appeal today issued West Fraser Mills v USWA a decision regarding non-culpable absenteeism and human rights. 

The case concerned seven employees who had been on LTD for an extended period. The employer terminated their employment for non-culpable absenteeism, and a while later closed the mill. As a result of the termination the affected employees lost their entitlement to severance arising from the closure.

Arbitrator Emily Burke found that the terminations were motivated by the employer’s closure plans and intended to avoid having to pay the severance. While the terminations per se of the disabled employees would not have violated the Human Rights Code, the deprivation of entitlement to severance transformed them into discrimination on the basis of disability.  The arbitration award was issued in October 2010 and is available on CanLii.

The employer appealed to the Court of Appeal (appeals of the general law go to the Court under  s. 100 of the Labour Relations code; appeals based on the Labour Code or its principles go to the LRB under s. 99).  The Court unanimously upheld the award.

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.