'A last-chance agreement… doesn't mean the employer can treat that employee differently'
“Just because there's a last-chance agreement in place doesn't mean the employer can treat that employee differently for the purposes of what is and isn’t misconduct warranting discipline. The standard that applies to all employees will continue to apply to an employee subject to a last-chance agreement.”
So says Mike Hamata, a labour and employment lawyer at Roper Greyell in Vancouver, after a British Columbia arbitrator overturned discipline for a worker’s aggressive behaviour and foul language that triggered dismissal under a last-chance agreement.
The worker was employed with Brewers Distributor Limited, a company that distributes beer in the four Western provinces and three Northern territories, in BC.
In early 2023, the worker’s employment was terminated for belligerent behaviour at work and making a comment about bringing a gun to the workplace. However, the union and Brewers Distributor negotiated an agreement that allowed the worker to return to work under a last-chance agreement. The agreement was reached on March 30 and stated that he must “maintain a clean disciplinary record and will not provide the employer with any cause to impose discipline as per any other employee.”
Although this last-chance agreement was more restrictive than many, it was drafted well, says Hamata.
“There's no reason why the triggering event for termination in a last-chance agreement can’t be any further discipline,” he says. “Last-chance agreements are typically only triggered when the subsequent discipline is of the same nature [as the reason for original termination], but they can be more narrowly drafted - it's not a rule that they must be limited in that way.”
Foul language at safety meeting
The worker worked 12 shifts over the next three months and, on his 13th on July 6, he attended a regular monthly shift safety meeting. The monthly safety meeting involved representatives from the union conveying matters discussed by the joint health and safety committee, with a small management presence.
The safety meeting was held in the staff lunchroom with about 30 employees and three management representatives in the back of the room. Eight of the employees were new hires.
The topic of mental health and the employee assistance plan (EAP) was introduced and the worker loudly interjected. He started ranting about the company being toxic and made disparaging comments about the company regarding its treatment of his mental health and that of a co-worker who was off work on disability. The worker swore and expressed his anger at how Brewers Distributor had handled mental health issues in the past. He also questioned the company’s sincerity around the EAP and mental health assistance that was being offered.
The union safety committee chair stopped the worker and told him they could speak after the meeting.
Afterwards, an operations supervisor who was at the meeting contacted two managers to advise what the worker had said and that he believed that the worker had made a reference to bringing a gun to work when he said, “ They didn’t take ownership of what they did to me, and they wonder why people threaten to bring AK4…” before being cut off by the union safety chair. He followed up by saying that the worker’s “casual and divisive” speaking about gun violence made him uncomfortable and he didn’t make him feel safe.
Investigation into worker’s behaviour
Another operations supervisor who attended the meeting told management that the worker had expressed his displeasure about a toxic work environment had “kept saying how this situation can get even worse and someone could change behaviour or even use aggression.” He didn’t hear the worker make a reference to a gun.
A third operations supervisor at the meeting reported that the worker “acted and spoke unprofessionally with vulgar language constantly using the f bomb.”
Brewers Distributor investigated, including an interview with the worker on July 10. The worker denied making a comment about firearms or swearing, but he acknowledged that he had expressed dissatisfaction and anger. He reiterated that he felt that the workplace was toxic and he wasn’t sorry about what he had said in front of his co-workers, including the new hires.
The company felt that the worker’s behaviour at the safety meeting violated its workplace harassment and bullying policy. The policy’s definition of workplace harassment included “engaging in vexatious (causing or tending to cause annoyance/frustration) comments or conduct, including, but not limited to, yelling…” as well as verbal comments or behaviour that were unwelcome, offensive, threatening, or degrading that created a hostile or uncomfortable work environment.
Brewers Distributor determined that the worker’s violation of the harassment and bullying policy warranted discipline and therefore breached the last-chance agreement. As a result, it terminated his employment on July 11.
Discipline not warranted: union
The union grieved the discharge, arguing that the worker’s actions didn’t warrant discipline and didn’t trigger the last-chance agreement. It argued that it was common for employees to express anger towards the company and swear in the workplace, including in safety meetings that are moderated by the union. No one had ever been disciplined for such behaviour in at least 20 years, the union said.
The arbitrator agreed that the worker was upset and expressed anger towards the company at the safety meeting, but the evidence showed that such behaviour wasn’t uncommon in safety meetings. Employees often had greater freedom in the meetings because they were run by the union and not management, even though a few members of management usually attended.
The arbitrator also found that the worker wasn’t seeking to publicly embarrass Brewers Distribution or confront an individual manager or co-worker. Instead, the employer as a corporate entity was his target, the arbitrator said.
As for the one supervisor who reported that the worker used a gun comment that made him uncomfortable, no one else heard the comment, including the other two other supervisors present and the union chair.
The arbitrator accepted that foul language was used often at safety meetings, as employees could be passionate about the topics. In this case, the worker’s comments were in the context of what the union chair was discussing and were “a dialogue of sorts between two individuals in a public forum with the situation, sadly, constituting a real-life example of mental health manifestations, with palpable elements of anger and blame,” said the arbitrator.
Foul language tolerated in workplace
“The employer tolerated the same sort of language from other employees, so it wasn't entitled to treat this employee differently,” says Hamata. “It couldn’t take the position that just because he had recently been subjected to a last-chance agreement there was a different standard for what wasn't disciplined in that workplace.”
The arbitrator determined that the worker’s conduct in the safety meeting and investigatory interview didn’t breach the company’s policy and were not deserving of discipline. As a result, the worker didn’t breach the last-chance agreement and should be reinstated with the agreement remaining in effect, the arbitrator said.
“By not consistently applying the policy to all employees, [Brewers Distributor] lost the ability to apply that policy to this employee in this circumstance,” says Hamata. “Essentially, the employer had acquiesced to what would otherwise be a breach of the policy and lost the ability to say that what the worker had engaged in was misconduct.”
When a workplace features off-colour language and employees who speak their minds, the employer has to decide where on the spectrum they want to be, according to Hamata.
“Employers are free to have a workplace culture that fosters speaking freely, and that might include curse words and angry speech,” he says. “But they need to know that when they do that, they are limiting the circumstances in the future that they can say are deserving of discipline.”
“Various tribunals, courts, and boards have departed from the approach that there is some excuse for foul language on the shop floor, as that that line of reasoning is being displaced from more current law,” says Hamata, adding that employers can end those practices through education, training, and notice.
“Reissuing a bullying and harassment policy with training and notice will help employees to understand that what had been tolerated previously will no longer be tolerated, and by doing that they can put themselves in a position where they might be able to uniformly enforce their workplace bullying and harassment policy.”
See Brewers Distributor Ltd. (Employer) and SEIU, Local 2 (Rennie), Re, 2024 CarswellBC 817.
