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DISCIPLINE AND DISCHARGE - Available sanctions - Grounds - Dishonesty

Friday, December 13, 2019 @ 6:26 AM  

Lexis Advance® Quicklaw®
Appeal by the Alberta Union of Provincial Employees from a judicial review judgment quashing a labour arbitration decision. The grievor was a corrections officer with 30 years' experience and an active role within the Union. The grievor gave a public response to a news story that criticized his employer. The news story was in relation to an internal video leaked by other corrections officers. Approximately one week earlier, the applicant had returned to work after a six-month suspension for his role in a wildcat strike. Following an investigation, the employer terminated the grievor's employment based on dishonesty regarding the release of the video, the public critical comments of the employer, and dishonesty regarding a relationship with another corrections officer. The Union grieved the termination. A labour arbitrator found that discipline was justified, but that termination was not. Instead of ordering reinstatement, the arbitrator awarded damages to the grievor. The arbitrator found that the grievor's ongoing pattern of untruthfulness made continuation of the employment relationship unviable. On judicial review, the chambers judge found that the remedy was unreasonable. The Union appealed.

HELD: Appeal allowed. The chambers judge erred in his approach to judicial review when he conflated the analysis of the appropriateness of the discipline with the analysis of the appropriate remedy. There was a line of discipline cases that held that there may be exceptional circumstances justifying damages instead of reinstatement where an employer lacked just cause for termination, but that the employment relationship was no longer viable. Here, the arbitrator found ongoing employment was not viable for a lack of truthfulness in three different contexts, including the arbitration proceeding itself. The finding was not unreasonable. The determinations that discipline was warranted, but termination was not, and that the appropriate remedy was damages rather than reinstatement was within the range of reasonable outcomes. The arbitrator's award was thus restored in its entirety.

Alberta Union of Provincial Employees v. Alberta, [2019] A.J. No. 1436, Alberta Court of Appeal, T.W. Wakeling, R. Khullar and E.A. Hughes JJ.A., October 29, 2019. Digest No. TLD-December92019014