'Dishonest dealings with your employer always merit severe discipline': lawyer
An Alberta arbitrator has upheld the firing of a union president from his job for his involvement in an illegal strike and his dishonesty during the employer’s investigation into the matter.
The worker was a driver for Coca-Cola Canada Bottling in the company’s Edmonton distribution centre. Hired in 2007, he delivered the company’s products from the facility to customers in the area.
The collective agreement stipulated that Coca-Cola had the discretion for final allocation of delivery routes for the drivers, although for several years the company allowed drivers to choose their daily delivery routes based on seniority.
In May 2023, the worker was elected union president, although he didn’t have much experience in union business.
A few weeks later, on June 16, the company notified the union that it would be ending the practice of allowing drivers to select their own routes and exercising its right under the collective agreement to select routes itself.
All drivers refused voluntary overtime
Three days later, the company asked all drivers on the overtime rotation list to perform off-duty overtime the next day. No drivers responded to the callout and 13 product routes were held for delivery until the next day.
On June 20, the company made another call for off-duty overtime for the next day, but again no drivers responded. Twenty-two of the product routes had to be held for delivery until June 22.
A call for off-duty overtime on June 21 and June 22 had the same result, delaying 20 product routes on the first day and 22 on the next day. On June 23, the company called 22 drivers for off-duty overtime work the next day and six agreed.
During this period on June 21, management instructed the worker to tell the drivers to resume volunteering for off-duty overtime, and the worker replied that he would, but he couldn’t force them. However, he didn’t send any such message to the drivers until two days later.
The company suspected that the worker was involved in the drivers refusing to perform off-duty overtime work, so it placed him on administrative leave with pay on June 27, pending the results of an investigation. It then retained an independent, third-party investigator.
Illegal strike
On June 30, Coca-Cola filed an application with the Alberta Labour Relations Board alleging that the union and certain bargaining unit members engaged in an illegal strike contrary to the Alberta Labour Relations Code. A week later, the board determined that the union had engaged in an illegal strike, despite the fact that the worker had stated to the board that he hadn’t instigated a work stoppage.
The investigator interviewed the worker and several other employees, and reviewed text messages between the worker and other drivers. The text messages included the worker telling another driver “We are looking to stop doing OT starting next week,” “requesting all driver not to work [overtime] for next week June 19 to 24,” and “no [overtime] this week still a go.” He also sent two text messages to drivers saying they could be forced to do overtime but only on their shifts, not when off duty.
The investigation proceeded appropriately by interviewing relevant people and demanding the text messages related to the matter given the seriousness of the allegations, according to Joseph Oppenheim, a labour and employment lawyer at Carbert Waite in Calgary.
“The law is pretty clear that when an employee leads or encourages others to participate in an unlawful strike, then termination of employment can be justified - and dishonest dealings with your employer always merits severe discipline,” he says. “So [Coca-Cola was] right to ask those questions and pursue those lines of investigation.”
The investigator completed the investigation on July 19, submitting a report finding that the worker “encouraged and incited employees to participate” in the illegal strike.
Termination of employment
Two days later, Coca-Cola terminated the worker’s employment for his leading role in the strike and abusing his role as union president. The union grieved the termination.
The arbitrator noted that an employee can’t be disciplined for joining a union or participating in lawful labour actions, but they can be disciplined for inappropriate behavior during a lawful strike or in an illegal strike. The level of discipline depends on the employee’s “degree of involvement or leadership” in the illegal strike, said the arbitrator.
The arbitrator found that the worker had played a “significant role” in the planning and execution of the work stoppage. The text messages provided as evidence showed that he encouraged drivers not to decline off-duty overtime shifts, including one text that specifically stated he was “requesting all driver not to work [off-duty overtime] for next week June 19 to 24,” and another group message confirming that the plan was proceeding.
The arbitrator noted that it wasn’t necessary to determine if the worker was “the singular leader of the strike,” just that he played a significant role in planning, encouraging, and leading it.
Dishonesty in investigation
The arbitrator also found that the worker misled the company while the illegal strike was happening. On June 21, he said that he would urge drivers to return to off-duty-overtime work, but he didn’t send a text until two days later, the arbitrator said.
The worker claimed that he made individual phone calls after management’s instruction, but the arbitrator said that “strains credulity” given all other communication was done by text message, which was the most efficient manner advising the drivers collectively on any labour action.
“Intentional misleading of your employer has long been considered misconduct that’s deemed to destroy the relationship between employer and employee,” says Oppenheim. “An arbitrator or court is tasked with trying to assess whether, objectively speaking, one can expect the parties to the relationship to be able to work together constructively again, and when you have an intentional misleading of your employer, trust is broken at that point.”
The arbitrator pointed to the worker’s role as union president, who could influence the actions of union members, as an aggravating factor, along with inconsistencies between his statements to the labour board that he was “not instigating a work stop or strike.”
There’s a significant distinction between those who lead or encourage workers to participate in an illegal strike versus those who simply go along with the group, says Oppenheim.
“Workers can be forgiven for participating if it’s not their idea - they're not expected to do their own legal analysis and push back against leadership,” he says. “But for an employee who’s leading the charge, particularly the president of the union, there's a responsibility to ensure that what you're doing is in fact lawful - and if you fail to do that and recklessly lead the charge, then that can be grounds for serious discipline. It's just a different order of culpability.”
Responsibility of union president
Although the worker claimed that he was inexperienced in labour relations, the arbitrator found this wasn’t an excuse, as it was his responsibility when he became union president to have some understanding on labour relations law. He also would have known of the illegality of the work stoppage after speaking with management, the arbitrator said.
“I suspect the board had to wrestle with [the worker’s inexperience] a little bit but, ultimately, when you take on the mantle of being a president or senior officer of the union, that comes with the responsibility to do your due diligence and ensure that when you're going to lead the union or the members in a disruption like this, that there's legal grounds to do it,” says Oppenheim. “Whether you're on the job for a year or a day, that responsibility exists, and if you're inexperienced, that just means you have to be that much more careful to learn the limits of your leadership.”
The worker’s illegal and dishonest conduct during the work stoppage, his dishonesty in Coca-Cola’s investigation, and his failure to demonstrate candour during the arbitration hearing all undermined the trust necessary for an ongoing employment relationship, the arbitrator said in denying the grievance and upholding the dismissal.
This case is an example of how dismissal can be justified when the employer conducts itself at a high standard in investigating misconduct, and the employee in question doesn’t, according to Oppenheim.
“Conducting an investigation professionally and lawfully with procedural fairness, that's always important for employers, and that's what happened in this case,” he says. “And where an employee conducts himself dishonestly and dishonourably, you don't have to tolerate it.
“Understanding that dishonesty is a red flag is important, because I think often employers are too willing to tolerate that kind of misconduct,” adds Oppenheim. “And as a result, it can lead to problems in the workforce, including poor morale - because employees who seek to do a good job see that management tolerates bad behavior too easily.”
