The British Columbia Labour Relations Board has ruled that an arbitrator erred in denying reinstatement to a union representative whose termination was found to be excessive, concluding the decision was inconsistent with principles expressed or implied in the Labour Relations Code.
The Board set aside the arbitrator’s decision and remitted the matter back for reconsideration, directing the arbitrator to account for protections afforded to union representatives when assessing whether reinstatement should be granted.
Discipline and termination of union representative
The case stemmed from the British Columbia Institute of Technology’s disciplinary actions against a bargaining unit chair (the grievor) for conduct while carrying out union duties. The grievor was disciplined on multiple occasions for what the Employer deemed inappropriate interactions with management, HR staff, and an external investigator. The final incident led to the grievor’s termination.
Following a 31-day hearing, the arbitrator upheld some of the Employer’s disciplinary actions, including a written reprimand and a five-day suspension.
However, the arbitrator found termination to be excessive, concluding there was “some cause to discipline the grievor, but dismissal was an excessive response in all the circumstances.”
Despite this finding, the arbitrator declined to reinstate the grievor, determining that the employment relationship was no longer viable and awarding damages in lieu of reinstatement.
Union’s challenge under Section 99
The B.C. General Employees’ Union (the Union) sought review of the arbitrator’s decision under Section 99 of the Code, arguing that the refusal to reinstate was inconsistent with statutory principles protecting union representatives.
The Union asserted that the arbitrator failed to properly consider the unique relationship between union representatives and management, as well as the broader protections for participation in union activities. The British Columbia Federation of Labour (the Federation) was granted intervenor status and supported the Union’s position.
Labour Board’s findings
The Board found that the arbitrator’s reasoning on the issue of reinstatement failed to account for the grievor’s role as a union representative and the established protections under the Code. While the arbitrator acknowledged that termination was excessive, the Board noted that the analysis of whether reinstatement was appropriate did not reference the grievor’s union role, protections for union advocacy, or qualified immunity for union officials.
The Board held that “[t]he principles related to protection for participation in union activities and the unique role of union representatives must be considered as part of the analysis to determine whether the case is an exceptional circumstance in which it is appropriate to reject the presumptive remedy of reinstatement.” The Board further stated that an arbitrator must consider whether a union representative’s adversarial role inherently involves conflict with management and that this context should inform the viability of continued employment.
Arbitrator directed to reconsider remedy
Although the Union sought outright reinstatement, the Board opted to remit the matter to the arbitrator, directing a reassessment of the remedy in light of the statutory protections for union representatives. The Board emphasized that arbitrators are generally in the best position to determine appropriate remedies but must ensure their decisions align with the principles of the Code.
For more information, see British Columbia Institute of Technology, 2025 BCLRB 64 (CanLII).
