The Canada Arbitration Board recently dealt with that question in a case involving a unionized Telus worker in Edmonton who was fired during a difficult but lawful labour dispute in 2005. The worker was fired during the work stoppage, which began in July and lasted until December 2005. That termination was set aside by an arbitrator, and the worker was reinstated. But Telus then terminated the worker a second time for additional reasons.
This article takes a look at whether Telus had just cause for that second termination and, more importantly, the concept of how the standard of just cause applies when the conduct in question occurs during a strike or lockout.
The bitter Telus dispute
Mimi Williams worked for Telus in the Telus Plaza in downtown Edmonton. She started on Oct. 31, 2003, and worked for 20 months as a temporary customer service representative. She was a member of the Telecommunications Workers Union.
As noted above, the bitter labour dispute lasted the better part of six months. Williams acted as the union’s picket captain at the Telus Plaza. The company continued to operate during the dispute and, as a result, those on the picket line encountered both managers and co-workers who had chosen to continue working.
Telus maintained a heavy security presence at the building. Guards would often videotape incidents as they occurred and, as a result, there was also significant activity between the picketers and the guards.
Some of the union supporters maintained a website upon which interested persons would post comments about the dispute. Williams, using the name activist@twu, posted frequent comments on the site. Telus management monitored the site during the dispute.
When Telus first made the decision to fire Williams, it was relying on just one incident — essentially a heated phone conversation she had with another Telus employee about a union event. The employee, Sean Bennett, didn’t see eye-to-eye with the union’s position. Bennett felt threatened by the phone call. He sent an e-mail to his manager complaining of the call and in particular of Williams having said, “just wait and see what happens to you.” This led to her firing on July 20, 2005.
That firing was grieved and the arbitrator gave Williams her job back. Telus then turned around and fired her again, citing a total of nine allegations, presented in the order given in the case:
Allegations one and two.
Williams posted a comment to a website concerning her termination from Telus. She made a number of derogatory and defamatory comments about Bennett, including he was “a liar and a conspirator of the degree that there may not be a hot enough place in hell for him when the time comes.”
Williams admitted to the postings and said she wasn’t proud of them. But, for at least three months, Bennett pretended to be supportive of the union and when he “flipped sides” she felt betrayed.
Also, the day after the call to Bennett that led to her initial firing, Williams spoke to a Telus manager about Bennett’s harassment of a co-worker who was on leave. Telus said the complaint she made was false and malicious, designed only to cause Bennett and another employee harm.
The worker who was on leave was a friend of Bennett, and he was not harassing her — she had confided in him, leaned on him and used him for support. She was shocked and surprised when she learned of what happened.
The arbitrator said that, while Williams’ dealings with Bennett over union matters involved protected union activity, her choice to complain of his conduct to management does not.
“(She) chose to use her position of Respectful Workplace Co-ordinator to add weight and authority to her complaint,” the arbitrator said. “She deliberately sought to invoke the employer’s internal processes, designed to protect employees from disrespectful treatment, to harm Mr. Bennett in his relationship with the employer and with the co-worker. In doing so, she stepped beyond the sphere of the statutory protections afforded union activity. Once the employer found out the allegations she made were false and malicious, and I find that they were, the employer was entitled to impose suitable discipline.”
Allegations seven and nine.
There were two incidents the company pointed to arising from interaction between Williams and Bennett at the union contract ratification meeting. Telus alleged that on Oct. 19, 2005, Williams verbally harassed him and identified him by name to other picketers. Williams denied verbally harassing him, but said she did identify him to other picketers.
On Oct. 20 she posted a comment to a website concerning the ratification meeting. She called Bennett an “asshole” and accused him of making profane gestures to picketers as he was walking off a bus to attend the meeting. She also made the following comments: “Did they promise you a management job, SB? Still don’t have it, eh? Good luck with the mortgage payments once we start garnishing your wages for the — how many, 70 charges we’ve got on you — anyway … Hey SB, thanks for coming. Now they all know what you look like. Sister with my camera, take his picture. Now we can e-mail it to BC … Keep looking.”
The arbitrator said there was nothing in either of these allegations to justify the employer being involved at all, let alone to impose discipline, calling it the type of unpleasant conduct that often arises during a work dispute.
Telus said that, on Aug. 26, 2005, Williams and two other picketers entered the Telus Plaza building. When she noticed she was being followed, she turned around and began screaming at one of the private investigators and demanded to see his identification card. Telus alleged that when he held up his card, she grabbed his wrist and attempted to grab the ID card and repeatedly yelled out his first and last name. Williams had a different take on the events.
The arbitrator said that, while Williams was being provoking during the instance, she was also being scrutinized and recorded in a way that was neither authorized nor justified in the circumstances. Williams neither grabbed the guard by the wrist or did anything other than touch the hand or the card to read it.
“It would not in my view constitute even the mildest form of assault,” the arbitrator said, and there was no cause for discipline of Williams.
This allegation involved a confrontation between Williams and Jennifer Klepsch, a Telus manager. The incident was recorded on videotape. Klepsch was approaching a crosswalk when a picketer yelled “corporate whore” at her. Klepsch approached the picketers and objected to the abuse. A picketer lectured her about crossing the line and doing bargaining work, which she denied.
Klepsch continued to argue with the picketers, at which point Williams came along. Klepsch began to leave, and Williams followed her, bending to read her identity card. A conversation ensued, and the arbitrator said Williams’ attitude to her was “condescending, lecturing and superior.” But Klepsch was giving as good as she got.
“Again, I find this incident involved the type of unpleasant but nonetheless permitted conduct on a lawful picket line,” the arbitrator said, pointing out that Williams believed she was addressing a co-worker and modified her stance once she realized Klepsch was in fact a manager. There was nothing Williams did that was deserving of discipline.
On Sept. 30, Williams was involved in a physical disturbance on the picket line in front of the Telus Tower. She was yelling and pushing while she was part of a crowd of picketers. She repeatedly used vulgar and profane language towards security personnel.
The arbitrator said Williams would have been better advised to stay out of the ruckus, but neither side could really claim the moral high ground in the incident. There was nothing that justified discipline.
On Oct. 1, Williams trespassed at the Telus Tower while wearing a green “fifotel” hat with the intention of provoking an arrest.
Williams admitted to wearing the hat, but denied having worn it with the intention of provoking an arrest.
But the arbitrator leaned towards the employer’s version of the events, calling it a “deliberately staged event to precipitate a reaction or a scene for its morale building or public relations purpose.”
There was an injunction in effect during this dispute, and rules had been worked out about when picketers could enter the building and how far they could go. One rule was that they should not wear or carry their placards and paraphernalia in to the building.
Williams and others from the union sported satirical “fifotel” hats. The name derives from a phrase apparently used by Telus CEO Darren Entwhistle in an article — “first in first out” — or as some expressed it playing on the acronym, “fit in or fuck off.” The hats were deliberately worn to express criticism and poke fun at the company’s management and, by doing so, elicit a response in a dispute where the CEO had taken a strong personal stand.
On Oct. 1, a blood donor clinic was scheduled to take place in Telus Plaza. Williams went in the building with another picketer, wearing the hat, as she described in a web post about the event: “It was a great plan. We would get thrown out of the plaza because of my hat, we would then call the local media down to the tower so that I could explain that I was unable to donate blood because of my hat. We would then tell the world what Darren doesn’t want the world to know: what does fifotel really mean? Great plan, eh. Especially because I don’t do needles (fainting and the like) and, as such have never (shame on me) donated blood in my life.”
But that plan didn’t pan out. Williams was able to donate blood.
But the arbitrator concluded Williams deliberately went into the building wearing the hat knowing it was considered to be strike-related paraphernalia and knowing that in so doing she was trespassing.
“She did so deliberately to try and provoke an incident,” the arbitrator said. Therefore, in this incident, management’s interests — which included keeping peace in its Telus Plaza worksite — were triggered. The conduct went beyond protected activity and discipline was justified.
At the Oct. 19 ratification meeting, Williams gave a handwritten note to a female co-worker which falsely stated that her husband was sleeping with a female Telus manager and falsely stated that the co-worker’s husband had signed the security log.
The recipient of the note was very upset and felt numb and sick to her stomach. She went outside and called her husband, and was able to conclude that the note was entirely fabricated. Williams claimed she thought it was true, and gave it to the woman because she “wanted to be a good friend.”
The arbitrator didn’t find this to be credible.
“My conclusion is that Ms. Williams associated this co-worker with Mr. Bennett, with whom she was sitting, and simply took the opportunity, with no credible basis for doing so, to cause her pain in retribution for crossing the line and for associating with the person whom she felt had conspired with the employer to have her fired,” the arbitrator said.
But in terms of justifying employer discipline, the arbitrator said this allegation was a difficult one. It took place away from the workplace at a union-run ratification meeting. Most conduct at such a meeting would be protected union activity. But there was nothing to tie the note into any legitimate union business.
“It was a spiteful and emotional assault on a co-worker in part because she was a co-worker albeit with different views,” the arbitrator said.
The woman worked in the same area as Williams, so it was likely they would have to work together in the future. Therefore, Williams’ actions made a working relationship with this person and with the manager involved untenable.
Telus had established just cause for discipline in respect to three of the allegations. The question then became whether discharge was the appropriate penalty. The arbitrator ruled it was because there had been such an “irretrievable breakdown” in the employment relationship.
Strikes are by their nature controversial. Williams appeared to be a dogged and passionate advocate for the union’s position. Being controversial is not, of itself, cause for dispute-related discipline.
“What convinces me that this relationship is irretrievably damaged is the nature of the conduct engaged in,” the arbitrator said. “In two of these matters, I have found that Ms. Williams, perhaps as a result of her commitment and fervour and related deep personal feelings, but nonetheless without any cause, launched personal assaults upon the reputations and personal lives of co-workers without regard to the hurt those actions caused. The employer was entitled and even obliged to respond to protect its employees from such action.”
While Williams said she is “not proud” of some of her conduct, she demonstrated little that could be called remorse or insight into why such conduct was appropriate. There was little to offer the employer hope for a changed approach to such matters in the future, the arbitrator said. Williams didn’t have a long and blameless record with the employer, as she had been there less than two years.
Therefore the dismissal was upheld and the grievance was dismissed.
For more information see:
Telus Communications Inc. v. T.W.U.
, 2006 CarswellNat 3621 (Can. Arb. Bd.)
Employment relationship during a strike
Re British Columbia Telephone Co. and Telecommunications Workers
, a 1981 ruling, the Canada Arbitration Board said the dynamics of the employment relationship are “profoundly changed” during a lawful strike.
The employer can neither expect nor implore obedience and respect from employees.
“The economic struggle envisioned in our industrial relations society as a means of resolving collective bargaining disputes compels confrontation between the employer and employees,” the board said.
That notion was reinforced in this case involving Telus. During ordinary times, the energy of employee is directed towards servicing the employer’s interests, the arbitrator said. But during a lawful strike or lockout, the reverse may be true. Therefore, many of the usual rules that underlie the test for just cause simply don’t apply.
“Concepts such as obey now, grieve later, insubordination and the duty not to harm the employer’s reputation in the community lose much of their relevance,” the arbitrator said. “(But) despite this change, a relationship continues nonetheless … while a strike or lockout continues, employees remain free to quit and employers retain a right to end the employment relationship for cause, subject to the restrictions imposed by the
Canada Labour Code
’s unfair labour practice protections.”
What is just cause for discipline?
The arbitrator in the
case said, in summary, what is just cause for discipline in relation to picket line or strike related activities must recognize that:
(a) certain union and dispute related conduct is protected by the
Canada Labour Code
even though it may at times be unpleasant or detrimental to the employer's interests;
(b) management, while entitled to protect its interests and its employees, lacks the right to manage the picket line or the dispute in the same way it manages the workplace. This means that concepts like insubordination and "obey-now, grieve-later" which derive from the right to manage work have little relevance to allegations of dispute-related misconduct;
(c) the right to engage in a strike or lockout neither licenses nor excuses criminal conduct or related conduct like ethnic, racial or gender discrimination. While often not a crime, discriminatory conduct goes to an employer's ongoing duty to maintain a workplace free of such practices;
(d) the employer and employee relationship is in the ordinary event expected to continue following the dispute. Conduct that is not protected activity and is inconsistent with an ongoing viable employer/employee relationship may be the subject of discipline or discharge where that conduct affects the employer's legitimate interests; and
(e) conduct must be judged and evidence assessed recognizing the realities of a strike or lockout including the quite different circumstances in which the protagonists interact with each other.
“This is not intended to be exhaustive, but it is sufficient for the issues that arise in this case,” the arbitrator said.