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Labour relations—Arbitration—Question as to whether employee discharged for just cause referred to arbitrator—Finding that employee’s impairment probably result of medication—No error of law affecting arbitrator’s jurisdiction.

The appellant Lean, who had been employed by the respondent for approximately 15 years, was discharged by oral notice. On the two days preceding her discharge, she had been directed by her foreman to return home before completing her shift. The foreman alleged that on these occasions Lean had appeared unsteady on her feet and that he could smell liquor.

A grievance was lodged under the provisions of a collective agreement, and the grievance procedure having failed to resolve the grievance, the question as to whether Lean had been discharged for just cause was referred to an arbitrator. The arbitrator found that Lean had not been discharged for just cause. On appeal, the British Columbia Court of Appeal, Branca J.A. dissenting, allowed the appeal and remitted the award to the arbitrator for reconsideration. The Court of Appeal was unanimous in its view that impairment had been found by the arbitrator, who had however concluded that the evidence did not establish alcohol as its cause. The majority held further that the arbitrator had failed to go beyond the question of alcohol and had thus committed an error of law going to jurisdiction. Branca J.A., in his dissenting reasons, was rather of the opinion that the arbitrator had found impairment because of the ingestion of drugs, had failed to relate this aspect to proper cause for dismissal (which in his view it was) and had thus committed an error of law which, however, did not go to his jurisdiction. Leave to appeal to this Court was granted by the Court of Appeal.

[Page 704]

Held: The appeal should be allowed and the arbitrator’s award reinstated.

The arbitrator had determined (1) that on the occasions in question Lean was in fact impaired; (2) that the evidence failed to establish a case of impairment by alcohol; (3) that this impairment was probably the result of medication for her physical condition; (4) that impairment caused by such medication opened the door to a leave of absence in accordance with the relevant clause of the collective agreement; (5) that a discharge in these circumstances did not amount to a dismissal for a just cause.

The arbitrator, accordingly, had applied himself to the problem at hand and had looked at all the circumstances to provide an answer to the question submitted to him by the parties. In reaching his conclusion, he may have been right or wrong, a point on which this Court was in no position to express an opinion, but he certainly committed no sin of omission amounting to an error of law affecting his jurisdiction.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from the award of an arbitrator and remitting same to the arbitrator for reconsideration. Appeal allowed.

J.N. Lanton and M. Coady, for the appellants.

J.M. Giles and G.K. MacIntosh, for the respondents.

The judgment of the Court was delivered by

DE GRANDPRÉ J.—On November 1, 1973, appellant Lean, who had been employed by the respondent for approximately fifteen years, was discharged by oral notice. It is common ground that on the two days preceding the discharge, appellant Lean had been directed by her foreman to return home without completing her shift. The arbitrator has found that this removal was correct “for safety considerations”.

Under the collective agreement then in existence between the appellant union and the respondent, appellant Lean and the appellant union lodged a grievance alleging that the respondent had improperly used its right “to select its employees and to

[Page 705]

discipline or discharge them for proper cause” (art. II, s. 2). The grievance procedure having failed to resolve the grievance, the appellant union notified the respondent that it was proceeding to arbitration on the question:

“Was Marguerite Lean discharged for just cause?”

The hearing was conducted very informally, so that we do not have the benefit of the evidence and of the submissions presented by the parties. By an award dated February 18, 1974, the arbitrator found that the answer to the question before him was “no”, that is the appellant Lean had not been discharged for just cause.

The employer thereupon gave notice that it would move before the Court of Appeal of British Columbia to have the award set aside or remitted to the arbitrator for reconsideration, the whole pursuant to s. 108 of the Labour Code of British Columbia Act, 1973 (B.C.) (2d Sess.), c. 122, which reads:

108. (1) Subject to sections 96 and 107, the Court of Appeal has exclusive jurisdiction in all arbitration cases under a collective agreement or under this Act; and may set aside a decision or award of an arbitration board, or remit matters referred to it to the arbitration board for reconsideration, or stay the proceedings before the arbitration board, on the following grounds only:

(a) That an arbitrator misbehaved or was unable to fulfil his duties properly; or

(b) That there was an error of law affecting the jurisdiction of the arbitration board; or

(c) That there was an error of procedure resulting in denial of natural justice.

(4) Section 14 of the Arbitration Act does not apply to an arbitration under this Act.

Of the grounds urged by the employer before the Court of Appeal, the only one relevant to the appeal before this Court may be expressed in the following terms:

(a) the arbitrator has made a finding that Marguerite Lean was evidently impaired on October 30 and October 31, 1973;

(b) the arbitrator has been unable to find that this evident impairment was the result of alcohol

[Page 706]

but has refused to examine whether or not this impairment was the result of drugs;

(c) the failure of the arbitrator to examine into the question of drugs constitutes an error of law because by so doing, the arbitrator modified the question submitted to him, namely “Was Marguerite Lean discharged for just cause?” and replaced it with the following: “Was Marguerite Lean impaired by alcohol?”;

(d) this error of law goes to the jurisdiction of the arbitrator.

The Court of Appeal was unanimous in its view that impairment had been found by the arbitrator, who had however concluded that the evidence did not establish alcohol as its cause. The majority (Bull and Carrothers JJ.A.) held further that the arbitrator had failed to go beyond the question of alcohol and had thus committed an error of law going to jurisdiction. Branca J.A., in his dissenting reasons, was rather of the opinion that the arbitrator had found impairment because of the ingestion of drugs, had failed to relate this aspect to proper cause for dismissal (which in his view it was) and had thus committed an error of law which, however, did not go to his jurisdiction: (50 D.L.R. (3d) 439; [1975] 1 W.W.R. 399; 75 C.L.L.C. 15,269). Leave to appeal to this Court was granted by the Court of Appeal.

At the outset, I wish to make three remarks:

(1) the jurisdiction granted to the Court of Appeal by s. 108 of the Labour Code being very limited in scope, the question to be determined is not whether or not the arbitrator was right or wrong in fact or in law, but simply whether the case discloses one or the other of the three grounds spelled out in the section;

(2) although repeated reference, particularly by appellants, has been made to the burden of proof in arbitration proceedings following a dismissal, nothing turns on that point in the view I take of the case;

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(3) one possible “just cause” for the discharge of appellant Lean was her record of absenteeism; it was discarded by the arbitrator and is no longer in issue.

The first submission made by appellants, and the only one that need be examined if it is accepted, is that the Court of Appeal was wrong in its reading of the award; the arbitrator has not found impairment and, in any event, if impairment has been found, he has made a proper examination of the situation and has in truth answered the question put to him. Of course, appellants go on to say that, if on a proper reading of the award their first submission cannot be accepted, the judgment of the Court of Appeal is still in error: the record would not disclose on the part of the arbitrator an error of law going to his jurisdiction.

It is not possible to examine the first submission without quoting at length from the award. After a few preliminary remarks, the arbitrator refers to the evidence of the foreman on the events of October 30th:

Dan de Vranceanu, the graveyard shift foreman on the night of October 30, 1973 stated that he saw the grievor, Lean, “standing around” and asked her what was wrong. At that time the foreman alleged Lean appeared unsteady on her feet and that he could smell liquor. He then sent her home and told her that if she was still unavailable for work the next day to phone in. De Vranceanu said that he did not ask Lean whether she had been drinking since he was fearful that she would become emotional. He alleged that his prime concern at the time was her safety and therefore, to keep her away from the machines. De Vranceanu also stated that he was aware that Lean took medication and was in ill-health since she was, as he put it, “about the number one absentee”.

After a lengthy reference to the employee’s record of absenteeism, the arbitrator reverts to the evidence which this time deals with the events of October 31st.

On October 31, 1973 the grievor, Lean, reported for work at the commencement of the graveyard shift and, according to de Vranceanu, appeared again to be unsteady on her feet. She complained to the foreman about her machine and other matters. De Vranceanu

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alleged she appeared in a worse state than the night before and he ordered her home. He alleged she took a long time to gather her gear and on the way out stopped to talk to other employees and from one endeavoured to borrow taxi fare. De Vranceanu stated that he again smelled liquor.

The general foreman, Alec McCombie, stated that at about three-thirty a.m. on October 31, 1973 he received a telephone call from Lean asking him why she was sent home. McCombie alleges he had difficulty understanding what she was saying since her speech was slurred and, in his opinion, she was impaired.

Marguerite Lean testified that she had been taking medication in the form of Valium, tranquilizers and 222’s for some time because of chronic asthma and bronchitis.

Norman Stafford, personnel supervisor, stated that at 1:00 P.M. on October 31st, 1973 he talked with Marguerite Lean and asked her if she had been drinking. She denied that she had been drinking and when asked what medication she had been taking replied “just asthma pills”. Lean also advised him that she had an appointment that evening with her doctor.

The arbitrator then makes a quick reference to a part of the testimony on which he does not intend to rely. Follow his final paragraphs:

When de Vranceanu sent Lean home on October 30, 1973, he told her not to return on her next shift if she were not feeling better. This hardly seems the type of remark a foreman would make to a person he felt was under the influence of liquor, despite his remark that he refrained from speaking about liquor because of the emotional reaction he might get from the grievor.

De Vranceanu correctly removed the grievor from the area for safety considerations but I am convinced that the reason for her evident impairment was beyond his capabilities to determine. Was the grievor impaired by reason of the medication she was under? Was she impaired by alcohol? Was it a combination of both? The same questions arise as a result of McCombie’s testimony concerning the 3:30 a.m. telephone call from Lean on October 31, 1973.

My observation of the grievor, Lean under cross-examination by Company counsel disclosed that it would be impossible to accurately assess her physical state. She had difficulty focusing her eyes and her speech was slurred, yet she had not apparently been drinking. There is no doubt that the absenteeism as detailed above would

[Page 709]

under common law have been grounds for summary dismissal. However, the collective agreement in Article XIX—Leave of Absence—Section 1: Injury or Illness reads in part that “The Company will grant leave of absence to employees suffering injury or illness for the term of this Agreement, subject to a medical certificate if requested by the employer. The employee shall have a reasonable period of time to present such medical certificate…”.

The grievor was discharged on November 1, 1973 despite the fact that Health and Welfare forms had been requested.

On this text, it is impossible to accept appellant’s submission that there is no finding of impairment. The sentence “I am convinced that the reason for her evident impairment was beyond his capabilities to determine” can only have one meaning, namely that at the relevant time, appellant Lean was impaired. The Court of Appeal was indeed right in so concluding.

The real issue is the following: did the arbitrator, having found that Marguerite Lean was evidently impaired but that the impairment was not proven to have been drunkenness, refuse to go any further and to determine whether impairment because of medication related to a physical condition was a just cause for dismissal? It is common ground that, if the impairment was the result of drugs, these had been taken because of the chronic asthma and the bronchitis from which the appellant Lean had been suffering for some time. Reading the award as a whole, it is my view that the arbitrator has not failed to answer the question put to him and has not shut his eyes to the real circumstances. He has determined

(1) that on October 30 and October 31, 1973, appellant Lean was in fact impaired;

(2) that the evidence failed to establish a case of impairment by alcohol;

(3) that this impairment was probably the result of medication for her physical condition;

[Page 710]

(4) that impairment caused by such medication opens the door to a leave of absence in accordance with the relevant clause of the collective agreement;

(5) that a discharge in these circumstances does not amount to a dismissal for a just cause.

It has been suggested that the reference in the award to the article of the collective agreement dealing with leave of absence appears to be related exclusively to the absenteeism. However, that interpretation can hardly be adopted when it is noted that the reference is found in a paragraph dealing in the same breath with the physical state of the employee showing signs of apparent impairment and with absenteeism and that it is immediately followed by a statement that health and welfare forms had been requested, without restricting their purpose. The arbitrator, although a very experienced one, was not legally trained and his writing must receive a reading taking that circumstance into consideration.

For these reasons, I cannot share the view of Bull J.A., that the arbitrator failed (50 D.L.R. (3d) 445):

… to consider whether or not the impairment that he obviously found, although not necessarily from alcohol, was a good ground in law for dismissal and to apply the facts and circumstances of the case to that very point.

On the contrary, the arbitrator has, in my view, applied himself to the problem at hand and has looked at all the circumstances to provide an answer to the question submitted to him by the parties. In reaching his conclusion, he may have been right or wrong, a point on which I am in no position to express an opinion, but he certainly committed no sin of omission amounting to an error of law affecting his jurisdiction.

Accordingly, I would allow the appeal and reinstate the arbitration award. The appellants should have their costs in the Court of Appeal. As to the costs in this Court, in accordance with the order of

[Page 711]

the Court of Appeal granting leave, the appellants will pay these on a solicitor and client basis.

Appeal allowed with costs.

Solicitors for the appellants: Laxton & Co., Vancouver.

Solicitors for the respondent: Farris & Co., Vancouver.

 



[1] [1975] 1 W.W.R. 399, 50 D.L.R. (3d) 439.

 

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