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PROCESS AND PROCEDURE - Arbitration - Jurisdiction

Friday, June 02, 2017 @ 8:39 AM  


Appeal by ExxonMobil and Hebron from the dismissal of Hebron’s application for judicial review of an arbitrator’s decision, ordering the reinstatement of employees Hebron had dismissed. Hebron represented all the employers on ExxonMobil’s worksite. ExxonMobil had denied the employees access to the site on the basis of their alleged violation of the substance abuse policy promulgated by their contractor-employer. ExxonMobil was not a party to the site-wide collective agreement entered into between Hebron and the unions whose members worked at the site. The arbitrator found that the employees had not violated site policies prohibiting alcohol possession, use and consumption on site by consuming alcohol off site and returning to their accommodations with a blood alcohol level exceeding the prohibited level. ExxonMobil took the position it was not bound by the arbitrator’s decision because it was not a party to the collective agreement. Hebron had raised the jurisdictional issue with the arbitrator, who rejected the challenge to his jurisdiction. The arbitrator found that it made no sense to allow ExxonMobil, as owner, to circumvent the entire labour relations process by granting it the power to veto all actions of the parties to the collective agreement. He stated that ExxonMobil was bound by the outcome of his award, and that the employees were to be granted access to the work site to perform their employment duties. On judicial review, the judge declined to set aside the arbitrator’s award. The judge found that the Special Project Order pertaining to ExxonMobil’s project made it clear that ExxonMobil might be affected by outcomes properly found within the parameters of the collective agreement, that the arbitrator’s decision did not force ExxonMobil to violate its obligations under occupational health and safety legislation, and that ExxonMobil was not denied procedural fairness by the arbitrator assuming jurisdiction over the matter.

HELD: Appeal dismissed. In essence, ExxonMobil was seeking to assert rights as owner of the site to exclude the employees, who had been found to have not violated the policies governing alcohol use on site and intoxication while working. This would undermine the Special Project Order regime from which ExxonMobil and the other participants in the project benefitted. ExxonMobil’s rights as owner were subordinated to the labour relations regime. There was no merit to the argument that the arbitrator’s decision forced ExxonMobil to violate its occupational health and safety obligations. ExxonMobil chose not to participate in the arbitration, and was not denied procedural fairness because its rights were affected by the result.

Hebron Project Employers Assn. v. Resource Development Trades Council of Newfoundland and Labrador, [2017] N.J. No. 151, Newfoundland and Labrador Supreme Court - Court of Appeal, J.D. Green C.J.N.L., M. Rowe, C.W. White, L.R. Hoegg JJ.A. and G.D. Butler J. (ex officio), April 27, 2017. Digest No. TLD-May292017009