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Labour (Ont) - Misconduct. PUC Services Inc. v. Power Workers’ Union
In PUC Services Inc. v. Power Workers’ Union (Div Court, 2024) the Divisional Court dismissed a labour JR brought by the employer, here respecting a one-day suspension from employment of a union representative for "unprofessional and disrespectful conduct".
Here the court reviews the "scope of the protection afforded to union representatives":[59] The Arbitrator described the scope of the protection afforded to union representatives as follows:Unless a union representative’s actions are malicious or knowingly or recklessly false, or illegal, or actually threatening or intimidating, there is wide scope of protection for communications between collective representatives in the labour relations relationship. [60] The test articulated by the Arbitrator is consistent with other arbitration decisions. For example, in Re Burns Meats Ltd. and Canadian Food & Allied Workers, Local P139 (1980), 1980 CanLII 4012 (ON LA), 26 L.A.C. (2d) 379, the Arbitrator held that the protection for union representatives extends to lawful union duties and does not cover illegal or malicious acts, or comments that are knowingly or recklessly false. Physical threats and intimidation are also not protected: Canada Post Corp. and CUPW (Condon), [2013] C.L.A.D. No. 316, at para. 17.
[61] In Canada Post Corp. and CUPW (Condon), a union steward received a one-day suspension for using insulting and vulgar language towards a member of management. The issue in that arbitration was whether the union steward’s conduct fell outside the scope of immunity for union representatives carrying out union activities. After a lengthy review of the caselaw on the scope of the immunity afforded to union representatives, the Arbitrator articulated the test as follows at para. 18:[T]he tests to be applied in determining whether discipline imposed on a union official is justified may be summarized as follows:1. Was the official acting in the capacity of a union representative at the time of the impugned conduct?
2. Could the conduct be properly characterized as malicious in that statements made were knowingly or recklessly false?
3. Was the impugned conduct intimidating or physically threatening?
4. Did the conduct go too far and exceed what might reasonably be considered as a legitimate exercise of a union function?
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