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LABOUR RELATIONS - Employees - Dishonesty - Hours of work - Theft

Friday, January 26, 2018 @ 10:06 AM  


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Appeal by the union from a chamber’s judge’s decision to quash an Arbitration Board decision that had set aside a grievor’s termination for time theft. The grievor, who had worked as a supervisor for the Yorkton Cooperative Association (Co-op), was dismissed from her position because she committed time theft by intentionally falsifying time sheets and claiming pay for time she had not worked. The grievor’s union grieved the termination and the matter went to arbitration. The Arbitration Board found that the grievor had committed time theft, had lied during an investigation the Co-op conducted and continued to lie about her misconduct while testifying at the arbitration hearing. The Board nonetheless overturned the termination and ordered the grievor to be reinstated with a suspension. The Co-op brought an application for judicial review in the Court of Queen’s Bench. The chambers judge found that the Board’s decision was unreasonable and quashed the decision, confirming the termination. The union appealed the chambers judge’s decision arguing that, although the judge purported to apply the reasonableness standard of review, he simply substituted his own views for those of the Board. The union also argued that the chambers judge erred by reinstating the termination rather than contenting himself with quashing the Board’s decision.

HELD: Appeal dismissed. Given the factual findings of the Board and given the applicable arbitral jurisprudence, there was only one reasonable outcome. The grievor took no ownership of her wrongdoing and the Board found as a fact that there could be no comfort that she would not repeat that wrongdoing. The trust necessary to sustain the employment relationship between the grievor and the Co-op had been fractured in circumstances where the Co-op could have had no confidence it would have or could have been repaired. The termination of the grievor’s employment was the only reasonable bottom line at which the Board could have arrived. It followed that the chambers judge did not err by reinstating the grievor’s termination.

Yorkton Cooperative Assn. v. Retail Wholesale Department Store Union, [2017] S.J. No. 540, Saskatchewan Court of Appeal, R.G. Richards C.J.S., M.J. Herauf and P.A. Whitmore JJ.A., December 11, 2017. Digest No. TLD-January222018010