Deference to labour arbitrators: a tale of near cause

10 décembre 2019 | Jill W. Wilkie, Hodson Harding

( Disponible en anglais seulement )

The Court of Appeal for Alberta recently considered a labour arbitration decision where it was found that the termination was without just cause, even though the employment relationship was found to no longer be viable due to the employee’s pattern of untruthfulness.

Background

The employee, Mr. Ross, was a corrections officer employed at Alberta’s Edmonton Remand Centre (the “Employer”). He had thirty years’ experience and was active in his union, the Alberta Union of Provincial Employees (“AUPE”). He had held various positions in AUPE including shop steward, and chair of his local chapter for 20 years. He also ran for president.

On June 28, 2013, the Employer dismissed Mr. Ross for cause due to his role in a 2013 wildcat strike and for related conduct. Despite being described as “insolent, insubordinate, and untruthful”, an Arbitrator issued an award on April 14, 2015, ordering the Employer to reinstate Mr. Ross and to substitute a six-month suspension for the discharge. The Arbitrator found Mr. Ross deserving of discipline, but held that the Employer’s decision to terminate Mr. Ross’s employment was “excessive”.

On April 21, 2015, CTV broadcast images captured by an Edmonton Remand Centre’s surveillance camera of an inmate assaulting a correctional officer. On July 16, 2015, Mr. Ross was suspended for three days due to comments he made to a television reporter during the aforementioned broadcast. The President of AUPE also took part in this televised interview, but Mr. Ross explicitly told the reporter that his Employer had previously fired him for voicing occupational health and safety concerns. In the Employer’s view, these statements were knowingly false based on his previous discipline and were defamatory as they alleged an offence under the Occupational Health and Safety Act.

The Employer subsequently determined that two correctional officers wrongly recorded the video and provided it to CTV. The Employer questioned Mr. Ross five times in a seven-month period about the leaked video and his television interview. Following the conclusion of each investigative session, Mr. Ross was directed by the Employer not to discuss the interview with anyone other than his legal counsel. Despite this warning and Mr. Ross’s agreement, he continued to discuss with one of the correctional officers under investigation her involvement in the recording and release of the video.

On November 20, 2015, the Employer again terminated Mr. Ross’s employment for cause.

Decision of the Arbitrator

AUPE grieved Mr. Ross’s three-day suspension. The Arbitrator found that the suspension was not warranted, highlighting the significance of the steward/employee relationship and the union representative’s right to speak out on behalf of the union members. It was found that the comment asserting that Mr. Ross was previously disciplined for voicing occupational health and safety concerns was simply a “one-off background comment” made by the reporter. Based on Mr. Ross’s role as a union representative and the increased latitude this provides, it was found that the incident did not warrant a disciplinary response.

AUPE also grieved the termination. The Arbitrator found that there was insufficient evidence to conclude that Mr. Ross had inappropriately influenced his co-worker. This was due to the text messages between the two of them being unreliable, as they were coloured by their personal relationship, and Mr. Ross’s role as union representative and shop steward. The Arbitrator determined that without more evidence, Mr. Ross could not be said to have deliberately tampered with the investigation regarding the recording and release of the video.

However, the Arbitrator made several findings with respect to Mr. Ross’s conduct. The Arbitrator found that Mr. Ross was dishonest during the investigation, misled investigators, fabricated a story to cover his tracks, told investigators he would not discuss the matter with his co-worker (and he did), etc. However, despite this serious misconduct, the Arbitrator found the Employer had only made out a case for discipline, not termination. Yet, reinstatement was not awarded, as the “continued pattern of untruthfulness … created an insurmountable barrier to a viable and continuing employment relationship.” This, ordinarily, would be expected to ground a finding of just cause for termination. But, in this case, the Arbitrator found that while there was not enough cause for termination, reinstatement was not appropriate. Instead, Mr. Ross was awarded one year of salary in lieu of reinstatement.

Decision of the Alberta Court of Queen’s Bench

On April 6, 2017, AUPE applied for judicial review of the decision of the Arbitrator to not reinstate Mr. Ross. On April 7, 2017, the employer filed a cross-application regarding the decision that the suspension was not warranted with respect to the monetary award for damages in lieu of reinstatement.

The Court upheld the Arbitrator’s decision to allow the suspension grievance finding it to be reasonable. With respect to the termination, the Court substituted its own decision in place of the Arbitrator’s decision, stating that there was just cause to terminate. The Court set aside the Arbitrator’s award of salary in lieu of reinstatement.

Decision of the Alberta Court of Appeal

The Alberta Court of Appeal granted an appeal from the AUPE, restoring the decision of the Arbitrator that there was no cause for the termination. The Court held that the Arbitrator had the discretion to award damages in lieu of reinstatement. It was found that it was reasonable for the Arbitrator to award damages due to the employment relationship no longer being viable as a result of Mr. Ross’s pattern of “untruthfulness”.

Conclusion

This decision is an example of how labour arbitrators are afforded considerable deference by the Courts. This provides great flexibility to labour arbitrators. Still, it is understandable why both parties continued to appeal in this case. From the perspective of AUPE, there was an issue with the Arbitrator declining to reinstate Mr. Ross upon a finding that there was no cause for his dismissal. From the perspective of the Employer, there was an issue with the Arbitrator’s decision finding that the employment relationship was no longer viable, yet there was no just cause. When it comes to resolving labour disputes, sometimes both parties are left feeling that the result was not reasonable.

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