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Alberta arbitrator refuses to award back pay to employee who fails to admit bad behaviour during employer’s investigation

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A recent Alberta arbitration decision, Hinton Pulp, A Division of West Fraser Mills Ltd. v. Unifor Local 855, 2014 CanLII 57678 (AB GAA) illustrates how a lack of candour during an investigation can impact on the terms under which an employee is reinstated following a termination. The employer had terminated Thompson, a long-term employee with 35 years of service, for having intimidated and engaged in aggressive, bullying and harassing behavior towards Rooks, a fellow employee.

After being subjected to sarcastic comments by Thompson over several months, Rooks approached his manager to complain.  Rooks had been very reluctant to raise his concerns, but finally decided to do so after he began to experience serious anxiety.

The employer had a violence in the workplace policy (the “Policy”) in place.  An investigator was retained under the Policy to determine what had happened between Thompson and Rooks.  The investigator delivered a 26-page report in which he recommended that the employer discipline Thompson for his infractions of the Policy.  Relying on the investigator’s report, the employer terminated Thompson’s employment.  Thompson, a unionized employee, grieved the termination.

The Arbitrator reviewed the evidence and concluded that Thompson should be reinstated even though his conduct amounted to harassment under the Policy.  Thompson had been a long-serving employee and, despite his conduct, was afforded a last chance opportunity to show that “he could conduct himself in a civil and respectful way in the workplace”.

During the hearing, Thompson conceded that he had engaged in deliberate attempts to tease and intimidate Rooks.  The Arbitrator took particular note of the fact that Thompson had been given an opportunity to explain himself to the investigator and that he had tried to convince the investigator that he had done nothing wrong. The Arbitrator was not impressed by Thompson’s attitude. He stated that:

There was no failure by the Company to permit the grievor to explain or deny the allegations.  He was given a couple of opportunities to explain himself, but chose instead to try and convince the independent investigator that he had done nothing wrong.  Instead he tried to cast the complainant in an unfavourable complaining and dishonest light, so that he might look innocent. 

In addition, the Arbitrator noted that at no point did Thompson apologize to Rooks or to the employer for his behaviour.

Even though the Arbitrator did not uphold the termination, he refused to award back pay to Thompson, which would have been quite significant.  This was clearly because of Thompson’s attitude during the investigation, and his lack of remorse.  The Arbitrator stated that:

The grievor might have avoided what amounts to an extensive suspension by providing the investigator with the account of events he ultimately provided to this Board.  Having failed to do so, it is more equitable that he bear the consequential loss of wages pending this hearing rather than the Company.  He deliberately chose to dispute the allegations.  His doing so is what led the Company to come to the conclusions they expressed in the…letter of termination.

This case is noteworthy for lawyers and union representatives who provide advice to employees who are respondents in an investigation. There is often an impulse to deny all accusations of wrongdoing, and instead put pressure on the complainant to “prove it”.  In a case where those allegations can be proven, the consequences to an employee who admits to the behaviour in the first place, and apologizes, may be less severe than if he or she maintains a denial to the ultimate hearing of the matter.  In this case, the fact that the employee had extremely long service is what appears to have persuaded the Arbitrator to reinstate him and give him a final chance.  The outcome may well have been different if this employee had modest service.

Marie-Helene Mayer and Janice Rubin