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Labour (Ont) - Discipline. Service Employees International Union, Local 2 v. Labatt Breweries Ontario Canada
In Service Employees International Union, Local 2 v. Labatt Breweries Ontario Canada (Div Court, 2024) the Divisional Court dismisses a JR of a labour arbitration decision, here where an employee was dismissed "for conduct that created a safety hazard for other employees".
Here, the court comments on the interpretation of "how an arbitrator is to exercise their discretion to substitute a penalty other than dismissal under s. 48(17) of the LRA":[27] Section 48(17) of the LRA provides:Substitution of penalty
(17) Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances. ....
[36] In prior discipline decisions relating to the exercise of discretion under s. 48(17) (or other equivalent statutory provisions), arbitrators in Canada have adopted the approach set out in William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518 (B.C.L.R.B.). In that decision, the Chair of the B.C. Labour Relations Board repeatedly emphasized the importance of an employees’ service when determining the appropriate disciplinary penalty: see William Scott, at paras. 7, 9, 13. In that decision, at para. 11, the Board adopted the framework set out in an earlier Ontario arbitration decision, Re United Steelworkers of America, Local 3257 and Steel Equipment Co. Ltd. (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Ont. L.A.). In Steel Equipment, at pp. 357-58, the arbitration board outlined ten non-exclusive factors for consideration when assessing aggravating and mitigating factors in discipline matters and listed the “long service of the grievor” as a key mitigating factor.
[37] Arbitrators have adopted the framework in William Scott and Steel Equipment in subsequent discipline decisions across Canada: see Canada Post Corp. v. Canadian Union of Postal Workers, 2010 CanLII 86717 (Can. L.A.), at paras. 48, 51; Zehrs Markets Inc. v. UFCW, Local 175 & 633, 2006 CarswellOnt 9907 (Ont. L.A.), at para. 85; International Union of Elevator Constructors, Local 50 v. OTIS Canada Inc., 2023 CanLII 127717 (ON GSB), 2023 CanLII 15002 (Ont. L.R.B.), at para. 34. This framework has also been recognized as authoritative in influential textbooks on labour arbitration in Canada: see Donald Brown, David Beatty & Adam Beatty, Canadian Labour Arbitration, loose-leaf, 5th ed. (Toronto: Thompson Reuters Canada Limited, 2019, loose-leaf updated 2024), ch. 7.67; Morton G. Mitchnick & Brian Etherington, Labour Arbitration in Canada, 3rd ed. (Toronto: Lancaster House, 2018), pp. 287-290.
[38] The rationale for considering the “long service of the grievor” has been described by various arbitrators as tied to the investment that an employee makes in their employment, an investment that increases with time, sometimes referred to as “service equity” or “trust equity”. That factor “represents a form of investment made by the employee which an arbitrator is required to give some weight in carrying out the review mandated in the legislation”: MacMillan Bloedel Ltd. v. I.W.A.-Canada, Local 1-85, Re (1993), 1993 CanLII 16674 (BC LA), 33 L.A.C. (4th) 288 (B.C. L.A.), at p. 304; see also UNITE HERE, Local 75 v. Fairmont Royal York Hotel, 2012 CanLII 19247 (Ont. L.A.). Failure to consider an employee’s full years of service has resulted in the overturning of other arbitration decisions in discipline matters: see University of British Columbia v. Canadian Union of Public Employees, Local 116, 2000 CanLII 27314 (B.C.L.R.B.), at para. 48, reconsideration dismissed, 2001 CanLII 33288 (B.C.L.R.B.), at paras. 28, 30; Bart v. McMaster University, 2016 ONSC 5747, 133 O.R. (3d) 592 (Div. Ct.), at para. 188.
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