Court of Appeal Gives Some Guidance on the Right to a Union Steward in Disciplinary Interviews20-Jul-10
We were rather surprised some months ago to have an Alberta judge rule that a breach of a provision that gives a right to a steward at disciplinary interviews “ordinarily” renders the discharge null and void. This was inconsistent with many decisions including previous Alberta court decisions. It is therefore a relief that this view has been rejected by the Court of Appeal.
There is no automatic right to have a steward present at interviews, but collective agreements often provide for that right. In this case, the collective agreement provided a greater right in this area than many other collective agreements do:
An Employee who is to be interviewed with respect to disciplinary
action...shall be notified of the time and place of the interview and
if desired by the Employee he may arrange to be accompanied by a
Union Representative or Union Steward.
There were two Court of Appeal judgments. Two judges emphasized the importance of the fundamental rights provided by the clause. In doing so, they provided an expansive view of the rights granted by the clause. They commented that it was not enough to just have a steward present but the employee could also have the steward of his/her choice. The Court observed:
She was not given time to plan and put her best foot forward at
the meeting. She was deprived of any meaningful consultation with
any union representative, let alone one of her choice. She was blind
sided. Even during the meeting, the grievor asked on several occasions
whether the meeting was disciplinary in nature. She did not get a
response. In sum, she was not afforded the opportunity for advice and
sober second thought at the outset.
These observations are interesting because anyone who has performed investigations knows that the most candid responses come when the person being questioned is uncoached. There is surely some value in knowing what the employee will say without reflection, preparation, and coaching. That is why many employers do not agree to these clauses. The employment relationship is not like a criminal investigation. Employers are entitled to answers and are, without these clauses, able to ask employees what went on without delays, notice, and third party intervention.
None of the judges agreed with the Queen’s Bench judge’s observation that breach of such procedural provisions ordinarily renders the discharge null and void, but there was some modest disagreement in the Court on the available remedies for a breach. One judge said that procedural breaches of this type can never void a discharge. Two of the judges did not agree that the case law went that far. They said that one possible remedy for breach of such a clause would be to void the discipline, depending on the facts. All agreed to send the issue back to the arbitration panel to rule on what the proper remedy should be for what was a violation of the clause in this case. They agreed that the arbitration board had broad discretion to determine the proper remedy for breach. They also recognized that the panel was quite entitled to draw reasonable inferences with respect to what may have happened at the meeting and thereafter in assessing the impact of the breach. They all showed some sympathy for the conclusion of the arbitration panel that the discharge was justified without consideration of the interview and would have occurred without it.
It will be interesting to see what the arbitration panel will decide to do. The path is certainly open to a variety of options, including small damages for breach of this section.