The Steward
NEWS AND INFORMATION FOR BCGEU STEWARDS
June 1999
Vol 10, No 3
What constitutes abandoning a job?
Clarification and contract language
By Rob Wotherspoon
A
n employee who is
absent from work, not
on a recognized leave,
can be dismissed on the basis
that the employee has abandoned their position. Article
10.10 of the Master Agreement
sets out how dismissal based
on “abandonment” may
occur. Article 10.10 reads:
An employee who fails to
report for duty for 10 consecutive
work days without having
informing the employer of the
reason for their absence will be
presumed to have abandoned
their position. An employee shall
be afforded the opportunity to
rebut such presumption and
demonstrate that there were
reasonable grounds for not
having informed the employer.
Similar language is found in
most other BCGEU collective
agreements. Three recent
arbitration awards have
interpreted this language.
These awards involve employees who continued to be
absent from work after their
illness and injury benefits had
The STEWARD
Contract interpretation .......... 1
Determining the credibility
of a witness ............................ 2
Employer policies .................... 4
Independent contractor or
employee? .............................. 5
Determining dismissals .......... 7
An inside job ........................... 7
expired.
In the earliest award, arbitrator Rory McDonald confirmed that the employee must
be given an opportunity to
demonstrate that there were
reasonable grounds for not
informing the employer of the
reason for their absence.
However, he held that there is
an onus on the employee to
insist on a review of the
circumstances and provide a
rebuttal in a timely way and if
that doesn’t happen, the
opportunity to explain is lost.
He found that the employee
had not provided an explanation for her absence in a
timely way. He also found that
the grievance could not succeed because the grievance was
filed more than 30 days after
the grievor became aware of
the position the employer was
taking.
The facts of a subsequent
award, also decided by arbitrator McDonald, were that
several months after the
grievor’s illness and injury
benefits expired, the employer
attempted to contact the
grievor to determine her status
with respect to returning to
work. The grievor was asked to
provide medical evidence that
she was not fit to return to
work. When this information
was not forthcoming, the
manager wrote to the grievor
to advise her that she had
abandoned her employment
and was no longer an employee. The grievor phoned the
manager after receiving the
last letter. The arbitrator found
that the conversation left the
Continued on Page 3
The STEWARD, June 1999 — 1
ARBITRATION NOTES:
Determining the credibility of a witness
By David Streb
An issue that often arises in arbitration is whether or
not a witness is telling the truth. This issue often arises
in the event of conflict of evidence among witnesses.
T
he four main criteria
used in determining
credibility is as follows:
1. The first criterion, the
demeanour of the witness, is
difficult to assess and is not
usually given a lot of weight
by an arbitrator.
2. When considering the
second criterion, opportunity to observe, it is important to bear in mind the
difference between seeing
an event and assuming the
event took place. Witnesses
often testify to what are
simply their own conclusions, but these conclusions
are expressed as facts.
3. The third criterion is interest or bias. It is often argued
that any union member will
be biased in favour of
another member and likewise that a member of
management will be biased
in favour of management.
However, this argument will
not usually succeed without
more direct evidence of
actual bias. In general it is
reasonable to assume that
to the contrary good faith
should be presumed.
4. The most important criterion in evaluating credibility
and evidence in general is
the inherent probabilities of
the testimony or the consistency of the evidence with
probabilities. The best
known case that advances
this reasoning is Faryna v.
Chorney, which states in
part: The credibility of interested
witnesses, particularly in cases
The STEWARD, June 1999 — 2
of conflict of evidence, cannot be
gauged solely by the test of
whether the personal demeanour
of the particular witness carried
conviction of truth. The test
must reasonably subject his story
to an examination of its consistency with the probabilities that
surround the currently existing
conditions. In short the real test
of truth of the story of a witness
in such a case must be its
harmony with the preponderance
of the probabilities that a practical and informed person would
readily recognize as reasonable in
that place and in those conditions.
In commenting on the
consistency of the evidence
with probabilities, adjudicators consider whether the
evidence is consistent with
human nature, known behaviour, or factual circumstances.
It is important to apply an
objective standard.
NOTE: Another test of
credibility is a previous incon-
The
sistent statement. The statement can be either written or
oral. What is required is that
the witness has made a statement on some other occasion
that contradicts part of the
testimony that the witness will
give at a hearing. While this
can be a very strong indication
In commenting on the
consistency of the
evidence with probabilities, adjudicators
consider whether the
evidence is consistent
with human nature,
known behaviour, or
factual circumstances.
of credibility and may be
difficult to overcome at hearing it is essential that the
witness be given an opportunity to explain the inconsistencies.
David Streb is a BCGEU Advocacy
Staff Representative.
STEWARD
NEWS AND INFORMATION FOR BCGEU STEWARDS AND OFFICERS
June, 1999
The STEWARD is published by the Advocacy and the Liaison,
Research and Communications Departments of the B.C.
Government and Service Employees’ Union, 4911 Canada Way,
Burnaby, B.C., V5G 3W3.
Telephone: (604) 291-9611 or toll free at 1-800-663-1674.
Fax: (604) 291-1537
E-mail: soren_bech@bcgeu.bc.ca
Website: www.bcgeu.bc.ca
This edition edited by Jim Molnar
Continued from Page 1
grievor with the impression
that the manager left open the
possibility for her to return to
work including possible retraining for employment in
another ministry. The grievor
subsequently wrote two letters
to the manager in which she
confirmed her understanding of
the conversation. The manager
did not respond to these two
letters. Finally, the grievor
received clearance to return to
work from her doctor and
provided a medical certificate to
the manager. The manager then
advised the grievor that his
earlier position with respect to
abandonment remained unchanged. The arbitrator found
that abandonment had not
occurred because the grievor
was not given the opportunity
to rebut the presumption under
article 10.10. He stated that the
employer is entitled to know
the reason for the continued
absence in order to determine
its adequacy. As part of the
process of determining such
adequacy, the employer has the
right to verify the reason for
absence. But in the circumstances of this case, once the
employer was informed that
the grievor’s doctor did not
clear her to return to work, the
employer could have sought
clarification of the medical
opinion. However, the manager
had closed his mind to the
subject of abandonment and
had not afforded the grievor the
opportunity to rebut the presumption of abandonment. At
the arbitration hearing the
employer also argued that the
grievance should be dismissed
on the basis that it was filed out
of time. However, the arbitrator
found that because the grievor
had been led to believe that the
manager had not closed its
mind to reinstating her, it was
reasonable for her to have not
filed her grievance earlier.
In the most recent award,
Arbitrator John Kinzie found
that this article did not apply
where the employee was not
scheduled to report to work.
The grievor was in receipt of
STIIP benefits but was not
eligible for LTD benefits. She
provided the employer with at
least one more update on her
medical condition shortly after
her STIIP benefits expired. The
medical prognosis was that the
grievor was not yet fit to return
to work. About a year later, the
employer made a number of
attempts to contact the grievor
but was unable to due to the
fact that the grievor had moved
and the employer did not have
her change of address on file.
The grievor had submitted a
change of address that was
apparently lost for reasons
beyond her control. Arbitrator
Kinzie commented that an
employee has a duty to keep the
employer informed of changes
in status or address. Several
months later, the grievor talked
to staff in the employer’s benefits department. The grievor
was not given an opportunity to
explain her failure to contact
the employer before then.
Several months after that, the
grievor obtained a medical
certificate from her personal
physician clearing her to return
to work. When she informed
the employer that she was ready
to return to work she was
informed that she had abandoned her employment and
was no longer an employee. In
addition to determining that
Article 10.10 was not applicable
to a situation where an employee is not scheduled to
report to work, arbitrator Kinzie
stated that the employer didn’t
afford the grievor an opportunity to explain the reason for
her absence as required under
this language.
Rob Wotherspoon is a BCGEU
Advocacy Staff Representative.
Under Abandonment of
Position language:
1. The employer has the right
to ask employees to provide updates of their status
with respect to continuing
absences.
2. An employee has an obligation to keep the employer
informed of any changes of
address to enable the
employer to update the
employee’s status with
respect to continued
absence.
3. An employee must be given
an opportunity to demonstrate that there were
reasonable reasons for not
informing the employer of
the reason for a long
absence. The employer
can’t simply close its mind
once it decides that the
employee has abandoned
their employment.
4. If the employer disputes the
medical reasons given for a
continuing absence, there is
an onus on the employer to
seek clarification of the
medical opinion.
5. There is an onus on an
employee to insist that
the employer review the
circumstances of an alleged
abandonment.
6. The employee must provide
reasons for continued
absence in a timely way.
7. Once the employee is made
aware that the employer
considers that abandonment has occurred, the
employee must file a
grievance within 30 days
(or whatever time line
applies to any other grievance under your collective
agreement).
8. Abandonment language
may not be applicable
where the employee has
not actually been scheduled
for work.
The STEWARD, June 1999 — 3
EMPLOYER POLICIES
Are they in conflict with your contract?
By Chris Anderson
A
n employee of the K.V.P.
Co. Ltd., of Ramsey
Ontario, Raoul
Veronneau, was terminated
June 24, 1964 because, contrary to a company rule, his
wages had been garnisheed.
Brother Veronneau was a
mechanic, a good one according to his supervisor, and had
worked for K.V.P. for several
years. The only grounds the
employer had for discharging
him was that he had violated a
rule that they had posted some
six months earlier.
The rule said:
“Effective December 1, 1963,
any employee on whose behalf
the company is obligated to
process more than one garnishee,
will be discharged”
Brother Veronneau filed a
grievance and at arbitration,
the board turned their minds
to the question of company
rules. The resulting award has
been accepted over the years as
one that defines clearly the
general principles that must be
followed by employers when
constructing, implementing
and enforcing the rules, regulations or policies that are to be
visited on their bargaining unit
employees.
The board found that while
the making of rules is generally
an inherent right of management, a rule or regulation, if
not subsequently agreed to by
the union, must satisfy the
following requisites:
1. It must not be inconsistent
with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the
attention of the employee
The STEWARD, June 1999 — 4
affected before the company
can act on it.
5. The employee concerned
must have been notified that a
breach of such rule could result
in his discipline or discharge, if
the rule is used as a foundation
for the discipline or discharge.
6. Such rule should have been
consistently enforced by the
company from the time it was
introduced.
Having set those parameters
down as guidelines, the board
then summarized the effect of
such a rule in the event the
discipline or discharge is
challenged at arbitration. They
took the position that if the
breach of the rule is the foundation for the discipline or
discharge of an employee, such
rule is NOT binding upon the
Board of Arbitration. The
simple reason for this is that
the very issue before the board
may require it to pass upon the
reasonableness or other factors
that may affect the validity of
the rule itself.
The board said:
“The rights of employees
under a collective agreement
cannot be impaired or diminished by such a rule but only
by agreement of the parties.”
The board found in
Veronneau’s case that the rule
was unreasonable and inconsistent with the collective
continued on Page 5
Comments, story ideas,
criticism, suggestions welcome
The Steward is published specifically to meet the needs of BCGEU
stewards and local officers. If there are topics or issues that you
would like us to cover, please let us know.
Write: The Steward, 4911 Canada Way, Burnaby, V5G 3W3
Fax: 604-291-1537
E-mail: soren_bech@bcgeu.bc.ca
continued from Page 4
agreement. He was reinstated
with full back pay.
It is important to remember
that the onus is on the employer with regard to their
rules. They must ensure that
the rules are not in conflict
with the agreement, that they
are reasonable, and that they
are clear and unambiguous.
It is important to
remember that the
onus is on the
employer with
regard to their rules.
They must ensure
that the rules are not
in conflict with the
agreement, that they
are reasonable, and
that they are clear
and unambiguous.
Having done that, they must
ensure that ALL employees
affected must be aware of the
rules – simply posting them on
a bulletin board may not be
enough.
If the employer intends to
discipline someone if they
break the rule, then they must
prove that the employee was
aware of that discipline may
arise if the rule is broken.
Finally, the employer must
then ensure that they are
consistent when dealing with
employees who break the rule.
It is worth noting that many
employers have a great deal of
difficulty with this last requirement.
The full award may be
found at 16 L.A.C. page 73.
Chris Anderson is a BCGEU
Advocacy Staff Representative.
The case of Peggy Havard:
Independent contractor
or employee?
By George Reamsbottom
The Peggy Havard decision
was the third in a series of
wins for the BCGEU at
arbitrations that sought to
determine whether certain
contractors were
independent contractors
or employees under the
common law of contract.
A
rbitrator Hugh Ladner,
in the January 18, 1990
Alice Albert Award,
summarized 12 points from a
long line of previous cases in
Canada and England that he
adopted as a test to distinguish
an independent contractor
from an employee. He found
that Albert, a policy analyst
hired on a personal service
contract with the Ministry of
Education, was in law under
the (meaning of the) collective
agreement an employee of the
government of B.C.
Arbitrator Richard Bird in
the February 19, 1992 de
Montezuma and Felkner
award, adopted the 12-point
summary used by Ladner in
the Alice Albert decision. Bird
found that 11 of 13 employees
of “Syscom Consulting Ltd.”,
all of whom worked in the
Vancouver Data Centre of the
Ministry of the Attorney
General, were employees of
the government of B.C. in law
under the collective agreement.
Judi Korbin, after being
named as Chair of the Commission of Enquiry into the
Public Service (the Korbin
Commission) in March 1992,
at the urging of the BCGEU
decided that the 12-point test
adopted by both Ladner and
Bird would be applied to
determine which government
contractors – of those reviewed by the Korbin Commission – were independent
contractors and which in law
under the collective agreement
were employees of the government of B.C.
The union and the government, at the conclusion of the
Korbin Commission, agreed
that any outstanding disputes
left unresolved by the commission on whether a contractor
was an independent contractor or an employee would be
arbitrated by Korbin.
The first (and only) test case
arbitrated was Peggy Havard,
an interpreter at Rathtrevor
Provincial Park on Vancouver
Island.
Korbin, over the objection
of the government in Peggy
Havard, adopted as proposed
by the union the 12-point test
previously relied on by Ladner
and Bird.
The 12 points are:
l.
control of alleged employees;
2. ownership of tools and
equipment;
3. chance of profit;
4. risk of loss;
5. burden of remuneration;
6. disciplinary powers;
7. hiring;
8. dismissal;
9. alleged employee’s perception of relationship;
10. intention of the parties;
continued on Page 6
The STEWARD, June 1999 — 5
continued from Page 5
11. integration into the employer’s organization;
12. alleged employee’s other
work commitments.
Korbin found for the following reasons that Havard
was an employee under the
collective agreement of the
government of B.C.
1. Control The Parks Branch
determined the days and hours
Havard worked and the programs and activities she put
on for visitors to the park.
Korbin would have had to ask
approval of the Parks Branch
if she wanted to change anything.
2. Tools and Equipment She
had to work in the park and
used facilities in the park and
equipment which for the very
large part belonged to the
Parks Branch. Any displays or
art work she developed became the property of the Parks
Branch.
3. Chance of Profit Her budget
was approved by the Parks
Branch. It covered her expenses and allowed an hourly
rate for the hours she and her
assistants worked. There was
no room for her to make a
profit above that.
4. Risk of Loss There was none.
Her expenses were covered. If
she wanted to spend money in
excess of that provided in the
budget, she would have had to
negotiate an amendment to
her contract to provide for
extra funding.
5. Burden of Remuneration
The Parks Branch provided the
funding for Havard and the
programs she agreed to put on
under her contract. Havard
paid her assistants out of her
own bank account but the
money came from the Parks
The STEWARD, June 1999 — 6
Branch.
6. Disciplinary Powers Havard
testified that she would seek
prior approval from the Parks
Branch district supervisor
before disciplining her assistants. If she was told by the
district supervisor to discipline
any of her assistants, she said
she would have done what she
was told. Havard believed she
herself could have been disciplined by the Parks Branch.
7. Hiring Havard had to have
the approval of the Parks
Branch to hire any of her
assistants. She said she would
not have been able to hire
anyone not approved.
8. Dismissal Havard said she
could not have dismissed her
assistants without the approval of the Parks Branch.
The Parks Branch could have
terminated her contract with
two weeks notice.
9. Perception of Relationship
Havard, who had worked
previously for three years as
an interpreter while an employee of the Parks Branch,
said her perception was that
she was an employee. The
perception of her assistants
was that she was an employee
of the Parks Branch and the
perception of visitors to the
park was that she was an
employee.
10. The intention of the
parties was that Havard would
be an independent contractor,
but Korbin said the need to
control and direct the programs and activities she was
responsible for putting on,
made it impossible for the
Parks Branch to maintain an
arm’s length relationship with
Havard.
11. Integration Korbin regularly met with Parks Branch
employees in the process of
planning and organizing the
programs and activities specified in her contract. Parks
Branch employees supervised
her and her staff and participated in some programs. She
clearly was integrated with the
Employer’s organization.
12. Other Work Commitments
Havard had two quite small
contracts, one at another
provincial park and one with
the local school board. However, she was dependent on
the Rathtrevor Park contract
for the very major portion of
her income. She would not
have been able to hire her two
assistants without this income.
The government appealed
the Havard decision to the
B.C. Labour Relations Board
and lost. The board found
Korbin’s reasons for her
decision were sound. The
board also upheld the 12-point
test.
George Reamsbottom is a Senior
Practioner in Advocacy.
Legal test for discipline and dismissal
By Colleen Fitzpatrick
O
ver 22 years ago, the
William Scott case was
decided by Paul Weiler,
then Chair of the Labour
Relations Board. Ever since, it’s
been regarded as an arbitrator’s principal guide to reviewing dismissals for culpable
conduct.
Margaret Martelli worked at
William Scott and Co., a
poultry processing plant in
Coquitlam. There had been
media coverage about a dispute involving the company, a
competitor, and the provincial
government that had resulted
in a backlog of chickens and
turkeys awaiting slaughter by
the warring companies. Ms.
Martelli called The Province’s
news editor with some critical
remarks about management
practices at the plant. Her
remarks were reproduced in a
news article. She was fired in
September 1975. She had been
discharged by the same employer on a previous occasion,
but was reinstated by an
arbitration board, which
substituted a one-year suspension for the dismissal.
The arbitration board,
which heard the details of her
second discharge, concluded
her actions justified dismissal,
and further, her employment
record did not indicate reasons
for a substitution of a lesser
penalty. The union appealed
the award to the LRB.
Weiler, chairing the appeal
hearing, reviewed the legal
history of dismissal, from
English common law to the
evolving law of the collective
agreement and labour code
legislation. He found that the
Code’s requirement of arbitrators to deal with the real
substance and merits of a
dismissal grievance fundamentally changed the previous,
common-law definitions of
“cause”.
As a result of this fundamental change, arbitrators, he
said, “should pose three
WORK LAW
An inside job
the workplace first crack at
vacancies.
There are two main types of
clauses. The first is a seniority
clause, where the applicant
with most seniority will get the
job, provided he or she can
perform the work. The second
is a competitive clause, where
applicants will first be rated on
their skills and abilities. Seniority will only be the deciding
factor if their skills and abilities are relatively equal.
Seniority clauses often work
smoothly, although disputes
may arise over whether a
worker can do the job. Competitive clauses, widespread in
white collar workplaces, are
another story. Skill and ability
are frequently in the eye of the
beholder, and an employer’s
view may be influenced by
unreasonable perceptions,
both for and against particular
applicants.
In many cases, grievances
can be filed. However, these
cases are usually difficult to
win. Arbitrators are generally
reluctant to substitute their
view of skill and ability for
that of the employer. Their
thinking is that employers are
in the best position to know what
is required for the job and to
assess the qualifications of workers in light of those requirements.
Unfortunately, this is something of a leap of faith. Decisions about applicants may be
made by members of management who are not particularly
familiar with the details of a
job, who are rooting for a
particular applicant, or who
have made up their minds in
advance. Like the cook in
Saki’s story, the time for thinking that the employer always
knows best should have come
and gone by now.
Judith McCormack/CALM
“The cook,” said Saki, a
famous writer, “was a good
cook, as cooks go; and as cooks
go, she went.” What he didn’t
mention was that in a unionized workplace, her vacant
position would likely be filled
by a job posting process.
How that process works
depends on the collective
agreement. Usually, job posting
clauses set out certain rules
both for posting job vacancies
and for choosing people to fill
them.
The purpose of this kind of
clause is to establish a fair
process for deciding who will
get what job. The idea is to
minimize or eliminate favouritism or other improper considerations. As well, job posting
clauses usually give workers in
continued on Page 8
Judith McCormack is a lawyer
with Sack Goldblatt Mitchell in
Toronto and former chair of the
Ontario Labour Relations Board.
Distributed by the Canadian
Association of Labour Media.
The STEWARD, June 1999 — 7
Continued from Page 7
distinct questions in the
typical discharge grievance.
First, has the employee given
just and reasonable cause for
some form of discipline by the
employer? If so, was the
employer’s decision to dismiss
the employee an excessive
response in all of the circumstances of the case? Finally, if
the arbitrator does consider
discharge excessive, what
alternative measure should be
substituted as just and equitable?”
The language of the Code
meant that an arbitrator’s
evaluation of an employer’s
decision to dismiss must be
especially searching, the board
found. To assist arbitrators
with this evaluation, the board
posed the following questions:
(i) How serious is the immediate offence of the employee
that precipitated the discharge
(for example, the contrast
between theft and absenteeism)?
(ii) Was the employee’s conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration, perhaps provoked by
someone else (for example, in
a fight between two employees)?
(iii) Does the employee have a
record of long service with the
employer in which he proved
an able worker and enjoyed a
relatively free disciplinary
history?
(iv) Has the employer attempted
earlier and more moderate forms
of corrective discipline of this
employee which did not prove
successful in solving the problem
(for example, of persistent lateness or absenteeism)?
(v) Is the discharge of this
individual employee in accordance with the consistent
policies of the employer or
does it appear to single out
this person for arbitrary and
The STEWARD, June 1999 — 8
harsh treatment (an issue
which seems to arise particularly in cases of discipline for
wildcat strikes)?
Applying the initial three
questions to the grievance, the
board found the grievor gave
the employer just cause for
some discipline, that in light
of the circumstances, including the grievor’s disciplinary
record, discharge was not
excessive, and that because the
grievor’s demonstrated attitude toward the employer was
recalcitrant, no alternative
measure should be substituted
for the dismissal.
Despite the outcome of the
Scott case, it has been utilized
to reinstate many a grievor.
At a recent discharge grievance, a health care worker
received a loan of $1,000 from
a resident in intermediate care
who admitted to be fully
capable of managing her own
finances. The employer agreed
that the loan was voluntary,
but discharge was appropriate
because the grievor’s actions
were a conflict of interest, and
contrary to well-known policies. The grievor had no prior
discipline, and had seven
years’ seniority. Her evaluations indicated she was a
capable employee. Shortly
after she was fired, she sent
written apologies to the employer and to the resident,
with postdated cheques repaying the loan.
Applying the Scott questions
to the matter before him, the
arbitrator found the grievor
was deserving of discipline.
Per Scott, he stated the question before him was whether
discharge was excessive, and if
so, what was the appropriate
discipline?
The arbitrator stated his
agreement with the employer
that the conduct of the grievor
amounted to breach of trust.
But her previous good work
record, as well as evidence of
genuine remorse, were circumstances that weighed in favour
of reinstating her. A penalty of
six months’ suspension was
substituted, because of the
seriousness of the offence and
because the grievor didn’t
reveal the matter for eighteen
months.
William Scott is, 22 years
later, the framework of analysis an arbitrator will utilize in
any hearing involving discharge for culpable conduct.
Colleen Fitzpatrick is a BCGEU
Advocacy Staff Representative.