Arbitration Awards - Dismissal

BCGEU and Argo Road Maintenance – (August 5, 2010) – BCLRB No. B131/2010

The Union filed a section 99 appeal arguing the member had been denied a fair hearing when the arbitrator failed to provide an opportunity of reply to the Union.  The Employer filed a preliminary objection that the grievance had been filed out of time.  The Union was not provided a copy of the Employer submission until after the arbitration award was issued. The matter was remitted back to the arbitrator to review the process.

BCGEU and Starlight (April 8, 2010) – Settlement

The BCGEU filed an unfair labour application at the LRB against the Employer in relation to the termination of an employee organizer.  The parties agreed to mediation and with the assistance of a Vice-Chair achieved a settlement that resulted in the reinstatement of the employee and full back pay.

BCGEU and Gov’t of BC  No.1002 (April 6, 2010)

Two long service members were terminated for sending/receiving inappropriate emails at work. The Union acknowledged some discipline was warranted but relying on their clean records and other factors argued progressive discipline principles should apply, the terminations were excessive and suspensions should be substituted.  The arbitrator found there was evidence of a long standing pattern of accessing/distributing highly inappropriate material. The grievances were dismissed based on the arbitrator’s finding that the members failed to accept full responsibility for their behaviour and they minimized the seriousness of the misconduct.

BCGEU and LDB – BCLRB No. B41/2010 (March 3, 2010)
The Employer appealed the arbitration award (#984) decision that the LDB did not have just cause to terminate a member for inappropriate conduct and an order for reinstatement. The Employer argued the arbitrator did not deal with the issue of whether it was safe for the member to be returned to the workplace. The Board dismissed the application as there was nothing in the award that was inconsistent with the express or implied principled in the Code.

BCGEU and Ministry of Children and Family Development  –  #1000 (January 6, 2010)
The grievor was an 11 year employee who was terminated for failing to perform visual checks of sleeping youths in a provincial custody centre. The Union argued that termination was an excessive response as others received suspensions for similar misconduct. The arbitrator accepted the Union argument and reinstated the worker with a nine month suspension to the date of hearing. The worker had a clean record and the arbitrator agreed his apology was sincere.

Government of BC and BCGEU - #714C (July 8, 2009)
The 27 year liquor store manager was terminated in 1998 for theft of alcohol. At the original arbitration (March 14, 2000), the arbitrator found that alcoholism was a contributing factor to the theft but because some aspects of the member's conduct were voluntary, the termination fell within a culpatory framework and upheld the termination. The union appealed and the Labour Relations Board overturned the award. It created a new hybrid test applying a human rights analysis to cases involving addiction and misconduct. The Board referred the award back to the arbitrator with direction to apply the new hybrid test. The arbitrator issued the second award on February 28, 2007. He concluded there was evidence of prima facie discrimination, the employer's conduct did not meet the test for undue hardship and reinstated the member to a demoted store clerk position. The employer appealed the reinstatement award to the Court of Appeal. The Court of Appeal determined that no human rights analysis was required if a member was terminated for theft. A human rights analysis is required only if the member is terminated for a reason that engages an enumerated ground of protection under the Human Rights Code. The Court remitted the matter back to the arbitrator for a third hearing. The union applied for leave of the Court of Appeal decision to the Supreme Court of Canada. Leave was denied by the Court on February 5, 2009. At the third hearing, the arbitrator reviewed the factors from the hybrid test, including the member's alcohol addiction and his recovery, but upheld the termination because of the seriousness of the employment offence.

Government of BC and BCGEU - #991 (August 25, 2009)
The 27 year employee was terminated by the LDB on the basis of alleged defamatory and demeaning comments about his store manager. The union argued termination was excessive. The arbitrator agreed with the union. He did not accept the testimony of the employer's witness that the inappropriate comments were made in front of customers. A 30 day suspension was substituted for the termination and the member was ordered to provide a written apology to his manager and attend anger management training. The employer has filed a section 99 appeal of the award.

Ministry of Public Service and BCGEU - #986 and #986A (June 25, 2009 and August 31, 2009)
The ten year service member was terminated for releasing unauthorized information to the media. At the time of termination he was a Corrections supervisor and had a discipline free record. The union argued discharge was an excessive penalty. He acknowledged his mistake, was remorseful and his actions were motivated by health and safety concerns. The arbitrator concluded the member should be reinstated and a suspension was the appropriate penalty. He referred the issue of the appropriate penalty back to the parties (#986).

The parties were unable to reach agreement on the remedy and a second hearing was held on July 27, 2009. The employer argued the member's dishonesty was so severe that he had destroyed the trust relationship and should be awarded damages in lieu of reinstatement. The union argued the appropriate penalty was a short period of suspension and/or if a demotion was ordered, it should be for a specific period of time. The arbitrator concluded the employment relationship was incapable of being restored and awarded three weeks of pay for each year of service. The union is filing a section 99 appeal of the awards.

BCGEU and Government of BC- #984 (June 15, 2009)
The union grieved the termination of a 10 year employee who assaulted a co-worker at a Christmas party. The union argued the grievor engaged in off duty conduct and termination was an excessive response. The arbitrator found the grievor had engaged in serious misconduct that was connected to the workplace but did not warrant termination. He reinstated the grievor and substituted a six month suspension. The employer has filed a S.99 LRB appeal.

BCGEU and Mainroad, February 27, 2009 #980

The grievor was an 11 year employee who was terminated for engaging in sexual annoyance and unhygienic behaviour. The union argued that termination was an excessive response in all the circumstances. The arbitrator accepted the union argument and reinstated the worker with a 10 month disciplinary suspension (for the serious employment offence). The worker had a clean record, the arbitrator agreed his apology was sincere, the offence was an isolated incident and a spontaneous act. The arbitrator also accepted the union argument that the tough economic times contributed to special economic hardship.

Sutherland Hills Rest Home Ltd. and BCGEU (March 13, 2008) BCLRB No.B32/2008

The Union complained the employer dismissed an employee contrary to sections 6 and 9 of the Code. The Board made a declaration the employer dismissed the employee without proper cause as it did not discharge its onus to prove the employee engaged in conduct deserving of some discipline. The employer presented uncorroborated hearsay evidence on a material fact in dispute. The employee was re-instated.

Argo Road Maintenance and BCGEU, November 7, 2007 #933B

The member, a 16 year stockman employee was terminated by the employer under the tech change language in the collective agreement. The employer argued the employee was unable to satisfactorily perform the new duties of the job using the new computer technology. The tech change language states that loss of a job due to technological change results in the offer of a vacancy or severance. The Arbitrator found the employer had provided training, familiarization and on the job coaching on the new computer system. The arbitrator rejected the union's characterization of the termination as a dismissal for a non-culpable inability to perform the requirements of the job. The arbitrator concluded the employer discharged its onus of proving it made a reasonable and bona fide assessment of the member's performance in relation to the standards, and dismissed the grievance. As the employer's offer of severance had not been withdrawn, the arbitrator ordered that it be paid to the member.

BCGEU and BC Public Service Agency #957 (October 1, 2007)
The grievor, a four year member was terminated for inappropriate behaviour. The Union filed a termination grievance. The Employer raised a preliminary objection arguing the member had breached 8.10 which prohibits members from pursuing grievance issues through other forums or processes. The member wrote a series of letters to the Deputy Minister regarding the termination. The Arbitrator found that the evidence established the member had attempted to pursue the subject of the grievance through another channel outside of the grievance process. By operation of Article 8.10(b) the Arbitrator concluded the grievance had been abandoned.

Thompson and Government of BC and BCGEU #942A (July 17, 2007)
In an earlier award, the arbitrator awarded that the member's termination be substituted with a 6 month suspension. The union challenged the content of the employer's amended letter of suspension which raised concerns about the member's conduct not in evidence at the hearing. The employer argued that it had the right to set expectations and that the arbitrator did not have jurisdiction to decide the issues raised in the grievance. The arbitrator finds for the union and orders the employer to comply with the award by deleting certain paragraphs of the suspension letter. It was not appropriate for the employer to raise new grounds for discipline.

BCGEU and Lifestyle Retirement Communities Ltd. #952 (June 14, 2007)
The member was a care aide at a retirement facility. She was a six year employee who was terminated on October 16, 2006 for misconduct. The union acknowledged the member had made intemperate remarks to a co-worker but argued termination was an excessive penalty. The arbitrator gave the benefit of the doubt to the member regarding the evidentiary conflicts about the content of the member's remarks. The arbitrator upheld the grievance and reinstated the member. The discharge was replaced by a one month suspension and the member was directed to attend anger management training.

BCGEU and Ministry of Children and Family Development (Preliminary Application) #948 (March 13, 2007)
The member was dismissed for off duty conduct and resulting criminal charges relating to a marijuana grow operation. The criminal charges were stayed and the materials seized during the police search were excluded as the member's Charter rights were violated. Prior to the termination hearing, the Union applied to exclude the evidence obtained during the search and statements made by the member during the investigation.

The arbitrator refused to exclude the evidence obtained during the search for the following reasons: it existed independent of the Charter violation, the Employer had no involvement in the search, Section 24 of the Charter is applied less restrictively in the civil context and the member's liberty was not at stake.

The arbitrator did exclude statements made by the member during the investigation as that evidence did not exist independent of the Charter violation.

The parties negotiated a financial settlement of the outstanding issues.

Ministry of Public Service and BCGEU, Settlement (January 4, 2007)
A long service single parent liquor store clerk was terminated in October 2005. Prior to the arbitration hearing, the member tragically died. The union was able to negotiate a retroactive reinstatement of the member's employment resulting in the payout of significant life insurance benefits to her dependent children.

Government of BC v. BCGEU #942 (January 17, 2007)
A long service store clerk was dismissed for inappropriate behaviour and theft at the Long Service Awards at Government House in 2005. The grievor expressed remorse for her actions and had written letters of apologies. The grievor denied stealing cutlery.

The union argued termination was an excessive response as the grievor had a clean record during 18 years of service.The union argued the circumstances were similar to an earlier award arising out of the same Service Awards ceremony where that arbitrator reinstated the member and imposed a six month suspension.

The arbitrator found the member engaged in serious misconduct and severe disrespect. However, he concluded that her conduct was a momentary and emotional aberration and accepted her expression of remorse as genuine. He followed the earlier award finding the termination was excessive and substituted a six-month suspension. He found there was no clear and cogent evidence to support the theft allegation.

Government of BC v. BCGEU #714B (February 28, 2007)
The member, a long service liquor store manager, was discharged for theft of alcohol on August 21, 1998. At the investigation meeting, the member admitted the theft and disclosed a lengthy alcohol addiction. The arbitrator upheld the termination in an award dated March 14, 2000 relying on the "significant impairment" test. The union appealed the arbitration award. That test was overturned in 2002 when the Board adopted a new hybrid test in Fraser Lake Sawmills for cases involving addiction issues and misconduct. The case was sent back to the arbitrator in 2003. The arbitrator sought guidance from the Board about which test should apply. In June, 2006, the Board confirmed he should apply the Fraser Lake Sawmills test.

The arbitrator found the employer did not accommodate the member despite having knowledge of his disability. The employer knew he had entered a detox program, the member confessed to the thefts, and was attending counselling and AA. In recognition of the culpable factors, the arbitrator substituted a 19 month suspension and reinstated the member to a bargaining unit position with no supervisory duties.

The union received notice on March 16, 2007, the employer is appealing the award to the Board and the Court of Appeal.

Ministry of Public Service and BCGEU, Award # 936 (September 30, 2006)
The union grieved the termination of a long service employee who engaged in drunken behaviour at the Long Service Awards at Government House. The arbitrator found that dismissal was an excessive response. There was just cause to discipline the employee but because of his length of service, his employment record and the isolated nature of the misconduct, the arbitrator substituted a six-month suspension. However, he also found the employee provided evasive testimony and made duplicitous and self-serving statements to the Employment Insurance Commission. For that reason, he ordered the employee to repay all employment insurance benefits he had received.