PDF Version: Mixed Results for Corrections Officer Terminated for Dishonesty
Case Commented On: Alberta Union of Provincial Employees v Alberta, 2018 ABQB 524 (AUPE)
Justice GS Dunlop of the Alberta Court of Queen’s Bench recently heard an application for judicial review of a three-day suspension and termination of a long-standing employee of the Province of Alberta. For just about 30 years, Todd Ross (Ross) was a Correctional Peace Officer (CPO) employed by the Province. He was a member of the Alberta Union of Provincial Employees (AUPE) and was also a union representative (AUPE at para 1). In April 2013, a new Edmonton Remand Centre opened (AUPE at para 2). Ross had been terminated on June 28, 2013 on three grounds:
- His communication with management about the new Edmonton Remand Centre in April 2013; Ross wrote and sent two emails to the Executive Director and the Assistant Executive Director of the new Edmonton Remand Centre, which the arbitrator had described Ross as ‘insolent, insubordinate and untruthful’; Ross had also erred when he addressed his comments to the Deputy Minister and the Assistant Deputy Minister;
- His actions when he was relieved with pay on April 26, 2013; and
- His actions while he was on leave with pay after April 26, 2013; the employer alleged that Ross had induced other CPOs to engage in an illegal strike between April 26 and May 3, 2013—however, the arbitrator held that this allegation was not proven (AUPE at paras 10 and 11).
In a decision on this matter released April 14, 2015, the arbitrator held that the termination was an excessive response to Ross’s misconduct in the two emails; Ross’s dismissal was set aside and replaced with a six-month suspension starting from June 28, 2013 (AUPE at para 11).
One week after the arbitrator’s decision, on April 21, 2015, Ross admittedly told a television reporter that he had been fired by the Province shortly after the new Remand Centre had opened for speaking out about safety at the new facility (AUPE at para 12). The employer argued that Ross’s statements were false and defamatory. Ross was suspended for three days without pay (AUPE at para 12).
Ross successfully grieved the three-day suspension. The arbitrator held that the television reporter had made a ‘one-off background comment’ about Ross’s 2013 suspension that was peripheral to the main story, which was actually about an assault that had taken place at the Edmonton Remand Centre; a CCTV video of the assault was aired on the evening news. The arbitrator noted that Ross had some latitude as a spokesperson for the membership (he was a union representative), held that this incident did not warrant a suspension and ordered that Ross was to be reimbursed for any loss of pay and benefits resulting from the three-day suspension (AUPE at para 13).
Justice Dunlop noted that the standard of review was reasonableness, and then held that the arbitrator’s decision about the three-day suspension was “within the range of possible, acceptable outcomes” (AUPE at para 14). Justice Dunlop dismissed the employer’s application for judicial review of the arbitrator’s decision regarding the three-day suspension (AUPE at para 6).
However, Ross was not so fortunate when it came to his termination. The employer alleged that Ross was not honest with respect to the investigation of a leak to the media of the internal CCTV video, and had therefore tampered with the investigation (AUPE at para 3). The arbitrator had overturned the termination of Ross’s employment and ordered that he be paid damages in the amount of one year’s salary (the arbitrator did not order that Ross be reinstated) (AUPE at para 4). In concluding that Ross should have been suspended, the arbitrator had relied on four mitigating factors:
- Ross’s long service with the employer;
- Ross’s work as Chapter Chair of the Union Local and a leading member of the planning committee for the new Edmonton Remand Centre;
- Ross had not played a central role in recording the leaked video; and
- Lack of sufficient evidence that Ross had leaked the video (AUPE at para 17).
The arbitrator would not have ordered reinstatement because Ross’s dishonesty made the continued employment relationship impossible (AUPE at para 18). The arbitrator had also found that Ross had repeatedly lied to fellow employees who were investigating the leak of the video; the arbitrator noted that these lies had continued throughout the arbitration hearing (AUPE at para 7).
Justice Dunlop held that the appropriate test for employee dishonesty should be found in McKinley v BC Tel, 2001 SCC 38 (CanLII), a case that was not cited to the arbitrator by either party. He pointed to the following passage (from McKinley at para 48):
In light of the foregoing analysis, I am of the view that whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer.
In this situation, because Ross’s dishonesty made his continued employment impossible, following McKinley made the arbitrator’s solution (damages in lieu of reinstatement) unreasonable, as the employer had just cause for dismissal with no notice and no damages (AUPE at para 18). Justice Dunlop quashed the arbitrator’s decision regarding Ross’s termination and substituted his own decision upholding termination (AUPE at para 22).
The Union is appealing the ABQB decision. See: Paige Parsons “Union to appeal ruling on remand Centre guard’s termination” July 19, 2018 Edmonton Journal.
It may be that some think Ross was actually fired for being a whistleblower. He may have thought he would be protected by the Public Interest Disclosure (Whistleblower Protection) Act, SA 2012 c P-39.5 (PIDA), but Ross did not follow the procedure for disclosures set out in the PIDA (sections 5 to 15.1); the PIDA clearly does not protect from reprisal those who do not follow the PIDA’s requirements (e.g., those who make a public disclosure), see Government of Alberta Employee Factsheet.
This post may be cited as: Linda McKay-Panos, “Mixed Results for Corrections Officer Terminated for Dishonesty” (August 17, 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/08/Blog_LMP_Employee_Dishonesty_Aug2018.pdf
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This raises a number of interesting issues. Damages in lieu of reinstatement are quite exceptional in the first place; this decision suggests that arbitrators may never have authority to award them in cases dealing with culpable conduct by the grievor: The test for damages in lieu essentially implies an irreparable breakdown in the relationship, and if this flows from culpable misconduct, the court’s analysis here would seem to fully apply.
This interpretation would be a double-edged sword for employers, though: An arbitrator who does not find that proven misconduct quite rises to the level of just cause – which is a high threshold – in an acrimonious case may not feel empowered to compromise by declining to order reinstatement.
Moreover, such an analysis would completely turn the conventional ‘damages in lieu of reinstatement’ analysis on its head. (And to do so in a decision that [a] makes no reference to the collective agreement or labour relations legislation and [b] relies heavily on an employment law case from a non-unionized environment…is a little concerning.)
Following the Supreme Court of Canada’s 1968 decision in Port Arthur Shipbuilding Co. v. Arthurs et al. (where the Court found that management rights included the right to assess a penalty for non-trivial misconduct, and that arbitrators had no authority under the collective agreement to substitute a different penalty where that misconduct was proven), most (all?) jurisdictions across Canada legislated language into labour relations statutes which allows a substitution of a penalty that is “just and reasonable in all the circumstances”. (There is a comparable provision in the collective agreement at issue in this case, to which the Court did not refer.) Accordingly, even in cases of significant misconduct, arbitrators apply an analysis to determine if there are mitigating factors that give reason to relieve against the penalty. It’s a broad discretion with which courts have usually been reluctant to interfere. See para 11 of the Ontario Divisional Court’s decision in The Corporation of the City of St. Catharines v. The St. Catharines Professional Fire Fighters’ Association: “Judicial deference is particularly apt in the context of the exercise of an arbitrator’s discretion on remedy. This is the case ‘however indulgent and permissive’ the decision may appear….”
Indeed, until 2004, there was a good argument that damages in lieu of reinstatement were ONLY available in cases of culpable misconduct – that if continuing the relationship seemed impossible, but the conduct of the grievor was non-culpable, the broad discretion on ‘penalty’ had no application (because there is no misconduct to penalize) and the only available remedy is reinstatement. This was the finding of the Alberta Court of Appeal in AUPE v. Lethbridge Community College in 2002 – until the SCC later reversed that decision.
Bear in mind that McKinley – which is an incredibly important case in employment law (not just for ‘dishonesty’, but for just cause in general), and is certainly one with which the arbitrator would be familiar without it being drawn to his attention – was not a case decided under the framework of a collective agreement. It was a wrongful dismissal case alleging breach of an individual contract of employment, and there were basically two possible outcomes: The employer had just cause, and the action would be dismissed; or the employer did not meet that threshold, in which case damages would be awarded in respect of the failure to provide reasonable notice. Unlike labour arbitrators, courts in wrongful dismissal actions do not have discretion to substitute lesser penalties, and so the just cause analysis is strictly a yes or no question.
For labour arbitrators, on the other hand, there’s a much broader range of results, calling for analyses not only of *whether* or not discipline is appropriate, but *what* discipline is appropriate. Various arbitrators and courts have framed the analysis slightly differently: Sometimes, the two-step analysis appears to be “Is there misconduct that would warrant some form of discipline?” (which is quite different from the just cause analysis in McKinley), then the penalty phase includes a very broad examination of the seriousness of the misconduct, together with any mitigating and aggravating factors. Other times, arbitrators ask whether or not there is just cause for the specific discipline imposed (which is more akin to the analysis in McKinley), then evaluate whether there are mitigating factors justifying relief against the penalty.
Either way, McKinley cannot be the end-point of a just cause analysis in a collective bargaining unit context, and it is likely an incorrect statement of the law to conclude that an arbitrator must uphold a discharge, without regard for mitigating factors, simply because the McKinley test is satisfied.
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Disclaimer: This post does not contain legal advice, but is limited to general legal information. It does not create a solicitor-client relationship with any readers.