"Discipline in the unionized context is an exercise in patience": lawyer
A British Columbia arbitrator has ruled that dismissal was excessive for a worker’s repeated bad behaviour but declined to reinstate him because the employment relationship was too damaged.
Although the employer didn’t have just cause, it was still a win, according to Richard B. Johnson, a labour and employment lawyer at Ascent Employment Law in Vancouver.
“The fact that this employee still remains out of the workplace, even if [the employer] may have to pay damages, is better for everybody, especially the employer,” says Johnson.
The worker was employed with the British Columbia Institute of Technology (BCIT), a polytechnic educational institute in Burnaby, BC, since 1998. He was also the faculty bargaining unit chair.
There were some issues with the way the worker communicated with other staff and management, but BCIT initially tried to fix it through informal counselling.
In the spring of 2020, the worker, as the bargaining unit chair, contacted BCIT’s manager of labour relations for an update on the contracts of faculty members whose contracts hadn’t been renewed. There were back-and-forth emails over the next couple of months.
Aggressive emails
The worker became frustrated and felt he was being given the runaround. He emailed the labour relations manager about “a lack of honest and transparent response.” The manager told the worker to “review emails before accusations are made that we have not responded.” The worker felt insulted and emailed executives using bold and capitalized fonts and accusing management of deflecting and giving him false information.
On July 2, BCIT issued a written reprimand to the worker for rude, offensive, and abusive emails and his refusal to acknowledge any wrongdoing. The disciplinary letter stated that his behaviour breached BCIT’s policies and values, and further misconduct would lead to more severe discipline, up to and including dismissal.
In late 2020, BCIT moved the pay periods back one week for administrative reasons. The worker exchanged emails with management about it and he was warned about the tone and conduct of his communication.
In January 2021, the worker was loud, angry, and aggressive at meetings. On Jan. 28, he sent an email saying that BCIT was “stealing $2,000” from faculty salaries. He felt that the word “steal” fit the circumstances.
The director of total compensation said the stealing allegation was false because the pay period move wouldn’t change the amount employees received. The worker suggested information was being “held hostage” and the president was hiding behind meetings.
Accusatory email
On Feb. 19, the worker accused the director of total compensation of lying about a rescheduled meeting and “directly disparaging my character.” According to the worker, he used the word “lying” in the heat of the moment.
BCIT investigated and the worker said there was nothing wrong with the tone or content of his communications and the director provided false information. On March 29, BCIT suspended the worker for three days.
On Jan. 13, 2022, the worker requested a document about how BCIT would manage the illness-related absence of an instructor. He didn’t receive the document, so he escalated interactions with management at weekly safety meetings, including yelling rude and offensive remarks.
On Jan. 25, the worker emailed the board of governors and senior leaders with belittling statements about BCIT leaders. He was defiant at a meeting with management, saying his behaviour was appropriate because he was “being spun around in circles.” He also denied being angry at the safety meetings and suggested people turn down the volume in the videoconference meetings if they found him too loud.
On Feb. 9, BCIT suspended the worker for 10 days for inflammatory emails and his conduct in meetings.
External investigator
A short time later, BCIT hired an external investigator - an experienced lawyer - to look into an allegation by a student against an instructor. The worker was the instructor’s union representative.
The worker exchanged emails with the investigator, which the investigator marked as confidential. They discussed the instructor’s availability for an investigation meeting and the worker said the instructor was away on vacation, which the investigator passed on to management. The worker accused the investigator of lying about her emails, saying that anyone who asked for information in confidence and relayed it to management lacked the integrity to conduct an investigation.
At a disciplinary meeting the worker said his communications with the investigator were appropriate and she shouldn’t have relayed information about the instructor’s scheduling. He denied calling her a liar and said he was “simply pointing out that lying about an email would create issues of their credibility as an investigator.”
On April 21, BCIT terminated the worker’s employment for the email that impugned the character and integrity of the investigator. The termination letter stated that his comments “had a profound impact” on the investigator, and his disrespectful and intimidating behaviour was “fundamentally inconsistent with the previous warnings you have been given, and with your continued employment with BCIT.”
The union filed grievances against the discipline and dismissal, arguing that the worker was acting in his role as a union representative. BCIT countered that it had just cause or, in the alternative, if dismissal was excessive, the employment relationship was too damaged for reinstatement.
Progressive discipline
The arbitrator found that the July 2020 reprimand was an appropriate response to the worker’s communications, particularly since the worker refused to acknowledge a need to communicate more respectfully. The three-day suspension for the worker’s February 2021 accusations of dishonesty and disparaging comments, which constituted personal intimidation, was an appropriate next step, said the arbitrator, adding it “strayed from strenuous advocacy to an angry personal attack.”
As for the 10-day suspension, the arbitrator found that the worker’s anger at meetings was within “the latitude given to union representatives dealing with management regarding a contentious subject.” However, his emails included serious allegations that impugned the integrity of senior leaders. The worker may have disagreed with them, but that didn’t warrant personal attacks, said the arbitrator. However, the principle of progressive discipline made the jump to a 10-day suspension excessive, the arbitrator said in substituting a five-day suspension.
“I think it's a bit of a win for the employer for the arbitrator to uphold a suspension beyond the three days, but tempering that was this advocacy in the union context,” says Johnson. “I think that's why they pulled it back a little bit and said there's some cause [for discipline] but not quite enough for a 10-day suspension - it's the quintessential unionized scenario, where there's always difficulty imposing discipline [on union representatives].”
As for the worker’s conduct towards the investigator, the arbitrator found that the worker was “reckless as to the truth of his allegation that she was lying.” The worker’s words could be “reasonably construed” as a personal attack on the investigator’s integrity that was “at least in part motivated by an element of malice,” said the arbitrator.
Length of service
However, the arbitrator considered that the worker went for years without discipline and had 24 years of seniority. Although the investigator was offended by the worker’s communications, BCIT overstated the impact, as she didn’t acknowledge any lasting impact on her, the arbitrator said in finding that dismissal was excessive.
“If he had been a five-year employee, or less than 10 years, I think it could have gone the other way, says Johnson. “But when it's a career person, the arbitrator was loath to see that career dispensed with.”
However, the arbitrator agreed with BCIT’s suggestion that the worker’s conduct “has led to a complete lack of trust” between the worker and BCIT, making it unlikely they could continue the employment relationship. The arbitrator declined to reinstate the worker and retained jurisdiction for an award of damages.
Despite the finding that dismissal was excessive, the employer ultimately got a win, according to Johnson.
“[BCIT] started out saying, ‘We think we have cause, but even if not, let's just pay him out,’” he says. “At the end of the day, the last thing they probably wanted was to have somebody who is really difficult to work with coming back into the fold because the relationship is so impaired - we don't know what the damages will look like, but to impose damages instead of reinstatement was a benefit for the employer.”
Respectful workplace
Even though the worker was acting as an advocate for the bargaining unit, he was still subject to the same rules of conduct as everyone else, adds Johnson.
“A union will protect one of its members in this capacity and say they were acting as a representative, and sometimes advocacy has to be zealous,” he says. “But you're still an employee and it doesn't excuse you from following the fundamental policies and legal requirements of respectful workplace conduct and good faith.”
BCIT acted appropriately in disciplining the worker, it just escalated to termination too quickly, according to Johnson.
“In most cases, discipline in the unionized context is an exercise in patience, particularly with a long-service employee,” he says. “Slow escalation is the way to go - had they gone from a three-day suspension to five and then seven or 10, then I think dismissal could have eventually been upheld.”
See British Columbia Institute of Technology and British Columbia General Workers Union (Langford), Re, 2024 CarswellBC 1572.
