An Ontario court has upheld an arbitration ruling that overturned a one-day suspension of a union rep at PUC Services Inc. for allegedly aggressive behaviour directed towards an HR manager following a termination meeting for another worker.
The Ontario Superior Court of Justice dismissed the judicial review application from the employer. Although the arbitration process had elements of unfairness, these did not affect the ultimate outcome of the grievance process, the court ruled.
Termination meeting
The case centred on the one-day suspension of J.P., a union representative and longtime employee of PUC Services, following his conduct at a disciplinary meeting on Oct. 26, 2020. During that meeting, J.P. represented another employee who was being terminated. PUC Services argued that J.P.’s behaviour violated its Workplace Violence Policy due to “disrespectful and disruptive comments” toward management and allegedly aggressive behaviour toward a human resources manager after the meeting.
He allegedly confronted the HR professional and expressed his dissatisfaction with how the termination was handled. The ruling states that he told the HR manager they had “botched” the termination and acted disrespectfully. His comments were described as “harsh and unprofessional,” delivered in a raised voice, and included remarks questioning how the manager could “sleep at night.”
However, the arbitrator determined that while Priddle’s behaviour was unprofessional, it was not intimidating or threatening, and therefore fell within the scope of protection for union representatives.
PUC Services sought a judicial review, alleging procedural unfairness in the arbitration.
In its submission, PUC claimed the arbitration was unfair because the arbitrator refused to hear preliminary objections about evidence admissibility and denied PUC’s request to cross-examine J.P. PUC also argued that the arbitrator applied the wrong legal standard in determining the scope of protection for union representatives.
Flawed arbitration process
Justice Davies, who presided over the case, acknowledged that the arbitration process had been flawed. “I agree that it was unfair for the Arbitrator to refuse to hear PUC’s preliminary objection to the admissibility of some of the evidence,” he wrote. However, Davies concluded that the procedural flaws did not merit a new hearing because they would not have altered the arbitrator’s decision. “The nature of (J.P.’s) conduct and whether his conduct fell within the protection afforded to union representatives were the main issues in this grievance.”
PUC’s arguments primarily focused on what it saw as a failure by the arbitrator to consider evidence related to the termination of the worker and a lack of opportunity to introduce rebuttal evidence. In response, the Power Workers’ Union argued that the arbitrator had the authority to determine procedural issues under the collective agreement’s expedited arbitration process.
Justice Davies explained that, while the procedural protections were limited, this was consistent with the expedited arbitration process defined in the collective agreement between the parties. He emphasized that “some elements of the process are like a judicial process, which supports a finding that the arbitrator owed greater procedural protections to the parties,” but also pointed out that “other elements are quite distinct from a judicial process, which suggests that fewer procedural protections may be required.”
900 pages of witness statements
In his assessment of whether procedural fairness had been compromised, Justice Davies noted that the agreement’s provisions anticipated a rapid process with reduced protections compared to a formal judicial setting. He also remarked on the significant volume of documentation—roughly 900 pages of witness statements—submitted in the arbitration, suggesting that the process had evolved beyond the summary nature originally intended.
However, Justice Davies dismissed PUC’s claim that the arbitrator had applied an incorrect legal standard. He stated that the arbitrator’s test, which affords wide latitude to union representatives unless their conduct is “malicious or knowingly or recklessly false, or illegal, or actually threatening or intimidating,” was consistent with established legal principles. The judge also noted that the arbitrator “rejected PUC’s characterization of (J.P.’s) conduct” as aggressive or intimidating, instead finding it merely “unprofessional and unnecessarily rude.”
The court concluded that there was no need to remit the case for a new hearing, as it found that the same result would be reached. “The arbitrator did not rely on impugned evidence about the merits of (the worker’s) termination,” the judge noted, adding that even if PUC had been allowed to discredit (the fired worker), “it could not have changed the result” because the arbitrator had accepted PUC’s evidence on the seriousness of J.P.’s conduct.
Consequently, the court dismissed PUC’s application and ordered the company to pay $7,500 in costs to the Power Workers’ Union, Local 1000.
For more information, see PUC Services Inc. v. Power Workers’ Union, 2024 ONSC 5470 (CanLII).
