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WM. SCOTT & COMPANY LTD.

AND CANADIAN FOOD AND


ALLIED WORKERS UNION, LOCAL P-162.
Before: P.C. Weiler, Chairman, C.J. Alcott and A. Macdonald, Members. British
Columbia, July 26, 1976. Decision No. 46176.
Discharge Arbitral review Employee publicly criticizes management.
The union made an application under s. 108(1)(b) for review of an arbitration award
which found that an employee had been justly discharged and refused to substitute a
lesser penalty. The majority of the arbitration board found as a finding of fact that the
employee in question had, with a malicious motive, contacted a newspaper to criticize the
employer. The employer, which was partially owned by the provincial government, had at
the time of the criticism, been under severe public attack for alleged inefficiencies. The
employee had been previously suspended for one year and had been involved in past
interferences with the daily operations of the employer. The arbitration board adopted a
two step procedure. First, it evaluated the evidence of the immediate incident and found
that employees conduct constituted just cause for discharge. Secondly, it concluded that
it should not order reinstatement under s. 98(d) of the Code. The union contended that the
award was inconsistent with the principles expressed or implied in the Labour Code
because the employees comments to the press were true and made without malicious
intent.
Held: The application for arbitral review was denied. The Labour Relations Board
reviewed the history of discharge from a pure matter of contract law to a matter governed
by the legislative changes to the Labour Code. The Labour Relations Board found the
two step procedure of the award to be incorrect, and set out the three distinct questions to
be properly posed in a typical discharge grievance. Nevertheless, it agreed with the
ultimate conclusion of the arbitration award. The Board dismissing the unions
contention, refused to exercise its limited supervisory role to find that the alleged
erroneous findings of fact rendered the award inconsistent with the principles expressed
or implied in the Labour Code.
Editors Note: The statement of facts and the arguments of the parties are summarized in
the headnote.
Irwin G. Nathanson, for the employer.
Marguerite Jackson, for the union.

DECISION OF THE BOARD


PANEL:

PAUL C. WEILER, CHAIRMAN;


CLARENCE J. ALCOTT, MEMBER;
ANGUS MACDONALD, MEMBER.

HEARING:

JUNE 11, 1976.

DECISION:

JULY 26, 1976.

FOR THE EMPLOYER:

IRWIN G. NATHANSON.

FOR THE UNION:

MARGUERITE JACKSON.

I
The Canadian Food and Allied Workers Union, Local P-162 (the Union) has applied
under Section 108 of the Labour Code requesting the Board to review an arbitration
award made under the collective agreement between the Union and Wm. Scott &
Company Ltd. (the Employer). The award in question issued on January 28, 1976, dealt
with the discharge of Margaret Martelli from her employment at the Employers poultryprocessing plant in Coquitlam. The majority of the arbitration board found that Martelli
was justly dismissed by the Employer and declined to substitute any lesser penalty for
that of discharge. The Union now requests the Board to substitute for that award a
decision that no cause has been established which would warrant the dismissal of
Martelli. A hearing was held at the Boards offices on June 11, 1976, for the purpose of
receiving oral argument by the parties.

II
The Unions application alleges that the arbitration award in Martellis case was
inconsistent with the principles expressed or implied in the Code, thus providing a legal
basis for Board review of the award under Section 108 (1) (b) of the Code. In order to
appreciate the thrust of that argument, it will be helpful to review the factual
circumstances which led to the arbitration, as disclosed in the award itself. At the time of
Martellis discharge in September 1975, the Employer was one of only two poultryprocessing companies in the Lower Mainland area, each of which was owned either
wholly or partially by the provincial government. On August 20, 1975, the Vancouver
Province reported that a wrangle between these two companies and B.C. turkey
processors had led to a substantial backlog of laying fowl and turkeys on Lower
Mainland farms awaiting slaughter by the processing companies. The report stated that
the processors could handle the extra birds but neither the union involved nor the

processors want to have extra shifts, or pay the overtime involved. In the same story, the
Chairman of the B.C. Turkey Marketing Board was quoted as saying, It is obvious that
something is wrong in the present setup. Abbotsford closed early this year. It is now my
opinion that the Lower Mainland needs another independent processing plant. Decent
competition is one way to solve a problem like weve now got.
Against this background of adverse public comment about the Employer, Mrs. Martelli
stepped into the fray. After reading the story of August 20th, Mrs. Martelli telephoned the
news editor responsible for its publication, ostensibly to question the accuracy of the
report that the Union did not wish to work extra shifts. What followed was a wideranging conversation in which Mrs. Martelli was frankly critical of management practices
at the Employers plant. The result of that conversation was a story in the Province for
August 23, 1975, which read in part as follows:
Employees of William Scott Ltd. in Coquitlam, B.C.s
second largest poultry plant, will meet Tuesday to discuss
what union officials called inefficiencies.
The Plant, 40 per cent owned by the provincial
government, and the fully government-owned Panco
Poultry Ltd. in Surrey, have been partially blamed for a
back-up of almost 300,000 pounds of poultry waiting
slaughter.
Margaret Martelli, financial secretary for Local P-162 of
the Canadian Food and Allied Workers Union, said
employees are annoyed over recent reports of the poultry
meat backup.
We have never been asked to work overtime in order to
help clear up the backlog she said.
Earlier this week the B.C. Egg Marketing Board said there
are between 120,000 and 130,000 laying fowl backed up on
Lower Mainland farms and the chairman of the B.C. turkey
board said there are close to 40,000 turkeys waiting for
slaughter.
You wouldnt believe the inefficiencies at the plant, Mrs.
Martelli said.
She said that almost daily between 20 and 35 women waste
almost 20 minutes arguing over the use of a hose.

The General Manager of the Employers plant was on holiday when the articles of August
20th and 23rd appeared in the Province. When he returned to the plant in early September
and learned of the articles, he approached Martelli personally and told her she was
discharged.
On the same day, the General Manager discovered that his procedure in terminating
Martelli might be in conflict with the collective agreement then in effect. He reversed
himself and gave instructions that Martelli be requested to appear for work the next day.
Mrs. Martelli did so until the end of her shift on September 4th, at which time a letter of
discharge was presented to her in the presence of the Unions Vice-President and two
Shop Stewards. The letter was addressed to the Union and read as follows:
Local P 162
Canadian Food & Allied Workers of America
4530 Victoria Drive
Vancouver, B.C.
Dear Sirs:
In respect to recent derogatory allegations made by Mrs.
Margaret Martelli as publicly reported by the Province
newspaper August 23, 1975, we denounce such statements
as being unfounded. We assert that the public statements
made by Mrs. Martelli were unequivocally false and that
she knew that such statements were false. The statements
are proving to be extremely detrimental to our present and
future business transactions.
Since her re-instatement as an employee in April, 1975,
Mrs. Martelli has been the cause for much concern to
Management by her constant interruption to our production
process by interference in the work of other employees,
presenting unfounded complaints and her unwillingness to
comply to Management requests.
Such actions are not conducive to the expected harmonious
relationship .between Management and the Employee and
as such, we are herewith advising that we have seen fit to
dismiss Mrs. Martelli as of this date, September 4, 1975.
Yours truly,
PAN-READY POULTRY LTD.
Wm. Scott & Co. Div.
T. Stam
General Manager

As the second paragraph of the letter suggests, Mrs. Martelli had been discharged by the
Employer on a previous occasion. The arbitration board in that earlier case had
substituted a suspension of one year for the discharge.
At the outset of the hearing, the parties presented these two questions to the arbitration
board for decision:
1. Was Margaret Martelli unjustly dismissed from the employ of Wm. Scott &
Company on the 4th September, 1975?
2. If the answer to Question No. 1 is Yes or No, what steps, if any, should the
employer be required to take?
The majority award engaged in an extended review of the evidence concerning this
matter, a review which need not be repeated here. Suffice it to say that the majority found
that Mrs. Martellis comments to Mr. Turnbull [the Province editor] were unwarranted in
the context in which they were made and in which they appeared. In short, the arbitration
board was satisfied that Mrs. Martellis allegations about the Employers inefficiency
were not true. Moreover, referring to the water hose problem cited in the news story of
August 23rd, the arbitration board concluded that it was malicious and vindictive for the
Grievor [Martelli] to use these occurrences which were the fault of employees as regular
examples of Company inefficiency. The majority concluded with this appraisal of Mrs.
Martellis conduct vis-a-vis her employer, that she took it upon herself to face Mr.
Turnbull as a self-appointed spokesperson and to lay at the feet of her employer the
blame for any poultry backlog that existed. In our view she went out of her way to
discredit her employer and identified herself immediately and directly as an employee of
Wm. Scott & Company. On that basis, the board answered the first question put to it by
finding that Mrs. Martelli was not unjustly dismissed from the employ of Wm. Scott &
Company.
The arbitration board then considered the invitation by counsel for the Union to find the
discharge of Mrs. Martelli excessive in the circumstances and to order reinstatement
pursuant to Section 98 (d) of the Code. After a brief review of the grievors motivation in
speaking to the newspaper reporter, her previous disciplinary record, and her attitude to
her supervisor which was conveyed on the witness stand, the majority decided that it felt
no compulsion to exercise any discretion which we have in favour of a substitution of
penalty. We should add finally that the dissent by the union nominee to the arbitration
board did not disagree with the finding that there had been some misconduct by the
employee warranting some discipline: The grievor took upon herself an officiousness
which her Union position would not warrant. However, her prior reputation and
apparent abrasiveness prompted the excessive reaction from the Company. However, the
dissenting board member found that a suspension without pay for the three months
elapsing from the date of the incident would be ample penalty for her impromptu and
impulsive comments made during a brief telephone conversation, and would have
ordered reinstatement of Mrs. Martelli as of the date of the arbitration award.

III
This is an application under Section 108 of the Labour Code. Section 108 (1) (b) entitles
the Board to set aside an award on the ground that it is inconsistent with the principles
expressed or implied in the Code. The Labour Code addresses itself directly to the issue
of discharge of an employee. First, Section 93 (1) requires that every collective
agreement contain a provision:
governing the dismissal or discipline of an employee bound
by the agreement and that provision, or another provision,
shall require that the employer have a just and reasonable
cause for the dismissal or discipline of an employee;
Then, in any grievances brought to challenge discharge under that clause of the
agreement, the Code confers this statutory authority on the arbitrator:
98. For the purposes set out in Section 92, an arbitration
board has all the authority necessary to provide a final and
conclusive settlement of a dispute arising under the
provisions of a collective agreement, and, without limiting
the generality of the foregoing, has authority
(d) to determine that a dismissal or discipline is excessive
in all the circumstances of the case and substitute such
other measure as appears just and equitable,
The wording of each of these provisions of the Code embodies the significant 1975
amendments contained in Bill 84. This explicit legislative attention to the problem of
discharge and discipline testifies not only to the serious impact these measures may have
on the individual employee, but also the need to provide adequate, peaceful machinery
for reviewing such cases as an antidote to possible industrial unrest in the bargaining unit.
In this, the first Section 108 application in which the Board has analyzed this legislative
language, we wish to emphasize the significance of the legal change from discharge as a
pure matter of contract law, under the individual contract of employment, to discharge as
the subject of legislative policy governing the collective agreement between employer
and trade-union. Without reviewing the common law of master and servant in any detail,
suffice it to say that the contract of employment allowed the employer to dismiss an
employee without notice for cause (some relatively serious forms of misconduct which,
in the eyes of the law, made the continuance of the employment relationship undesirable).
But that particular doctrine of the common law can be appreciated only in light of two
other features of the master-servant relationship. First of all, even in the absence of cause
on the part of the employee, the employer could unilaterally dismiss an employee with
reasonable notice, or with pay in lieu of notice. This meant that employees had no legal
expectation of continuity of employment even if their performance was satisfactory and

work was available. Secondly, if an employee was guilty of some misconduct at work,
the employer had no other form of discipline available. The contract of employment did
not entitle the employer to suspend the employee, for example. The presence of these two
subsidiary doctrines naturally coloured the common law analysis of what constituted
cause for discharge, in two respects: first, the law concentrated on the immediate
incident which triggered the discharge, rather than the situation of the individual
employee; secondly, gradually the law took the view that certain serious forms of
misconduct automatically justified discharge (e.g. insubordination, dishonesty, or
disloyalty) on the grounds that these amounted to a fundamental breach of the contract of
employment.
The nature of the legal right to discharge an employee has taken on a very different hue in
the world of collective bargaining. A classic depiction of that new reality is contained in
the award of the arbitrator in the crucial case of Port Arthur Shipbuilding:
Without exploring the common law rules of the masterservant relationship, it must be said that this board of
arbitration is charged only with the administration of the
collective agreement, and was not intended to provide a
forum for the enforcement of common law rights. A basic
difficulty in this argument advanced by the company was
its failure to allege, let alone prove, the existence of a
common law contract of employment. Indeed, today the
ordinary employee almost inevitably enjoys only an at-will
relationship with his employer, which at common law could
be terminated for any reason virtually without notice.
However, the collective agreement does create an entirely
new dimension in the employment relationship: it is the
immunity of an employee from discharge except for just
cause, rather than the former common law rule of virtually
unlimited exposure to termination. Whatever may have
been the early views of labour arbitrators, it is common
knowledge that over the years a distinctive body of arbitral
jurisprudence has developed to give meaning to the concept
of just cause for discharge in the context of modern
industrial employment. Although the common law may
provide guidance, useful analogies, even general principles,
the umbilical cord has been severed and the new doctrines
of labour arbitrators have begun to lead a life of their own.
Thus we turn to the question of whether or not just cause
for discharge existed, and to the companys alternate
submissions to this effect.
(1967) 17 LAC 109 at 112.

No doubt this legal shift is ultimately attributable to such socio-economic factors as the
transformation of the personal relationship of master and servant in a small firm into
the impersonal administration of a large industrial establishment by a personnel
department. But within the collective agreement itself, there were specific, contractual
features which required from arbitrators a different conception of discharge.
First of all, under the standard seniority clause an employer no longer retains the
unilateral right to terminate a persons employment simply with notice or pay in lieu of
notice. Employment under a collective agreement is severed only if the employee quits
voluntarily, is discharged for cause, or under certain other defined conditions (e.g.
absence without leave for five days; layoff without recall for one year, and so on). As a
result, an employee who has served the probation period secures a form of tenure, a legal
expectation of continued employment as long as he gives no specific reason for dismissal.
On that foundation, the collective agreement erects a number of significant benefits:
seniority claim to jobs in case of layoff or promotion; service-based entitlement to
extended vacation or sick leave; accumulated credits in a pension plan funded by the
employer. The point is that the right to continued employment is normally a much firmer
and more valuable legal claim under a collective agreement than under the common law
individual contract of employment. As a result, discharge of an employee under collective
bargaining law, especially of one who has worked under it for some time under the
agreement, is a qualitatively more serious and more detrimental event than it would be
under the common law. At the same time, the standard collective agreement also provides
the employer with a broad management right to discipline its employees. If an individual
employee has caused problems in the work place, the employer is not legally limited to
one, irreversible response of discharge. Instead, a broad spectrum of lesser sanctions are
available: verbal or written warnings, brief or lengthy suspensions, even dmotion on
occasion (see Cominco Ltd. (1914) 6 LAC (2d) 225). Because the employer is now
entitled to escalate progressively its response to employee misconduct, there is a natural
inclination to require that these lesser measures be tried out before the employer takes the
ultimate step of dismissing the employee, and thus cutting him off from all of the benefits
associated with the job and stemming from the collective agreement.
Recognizing the cumulative impact of these contractual developments flowing from the
modern industrial environment, Canadian labour arbitrators did gradually evolve quite a
different analysis of discharge grievances. The essence of that approach was nicely
conveyed by Mr. Justice Laskin, speaking for the Ontario Court of Appeal in upholding
the arbitrator in Port Arthur Shipbuilding:
The collective agreement leaves the extent of discipline (be
it as light as a warning or as heavy as discharge) at large
under the formula of proper cause. By this I mean that
there are no fixed consequences for specified types of
misconduct. This is so even in respect of a violation of such
a specific prohibition as is involved in article 11.03. The
reason is simple; experience has shown that there must be a
pragmatic and not a cut and dried, Medes and Persians

approach to discipline. Employers and unions are, in my


opinion, wise to leave room in collective agreement
administration (which includes arbitration) for
consideration of the worker as an individual, and not as
simply part of an indistinguishable mass. The formulae of
just cause or proper cause or reasonable cause or just
and proper cause which are found in collective agreements
join to the pragmatic case by case approach a sensible
individualization in the assessment of punishment for
misconduct. Whether the qualifying word be proper or
just, it expresses the duty to act according to the
circumstances of the case in which an issue of discipline,
reaching perhaps to discharge, arises.
(1967) 67 CLLC 14,024 (at p.116)
In evaluating the immediate discharge of an individual employee, the arbitrator would
take account of the employees length of service and any other factors respecting his
employment record with the Company in deciding whether to sustain or interfere with the
Companys action (at p.117). The following is an oft-quoted, but still not exhaustive,
canvass of the factors which may legitimately be considered:
1. The previous good record of the grievor.
2. The long service of the grievor.
3. Whether or not the offence was an isolated incident
in the employment history of the grievor.
4. Provocation.
5. Whether the offence was committed on the spur of
the moment as a result of a momentary aberration,
due to strong emotional impulses, or whether the
offence was premeditated.
6. Whether the penalty imposed has created a special
economic hardship for the grievor in the light of his
particular circumstances.
7. Evidence that the company rules of conduct, either
unwritten or posted, have not been uniformly
enforced, thus constituting a form of discrimination.

8. Circumstances negativing intent, e.g. likelihood that


the grievor misunderstood the nature or intent of an
order given to him, and as a result disobeyed it.
9. The seriousness of the offence in terms of company
policy and company obligations.
10. Any other circumstances which the board should
properly take into consideration, e.g., (a) failure of
the grievor to apologize and settle the matter after
being given an opportunity to do so; (b) where a
grievor was discharged for improper driving of
company equipment and the company, for the first
time, issued rules governing the conduct of drivers
after the discharge, this was held to be a mitigating
circumstance; (c) failure of the company to permit
the grievor to explain or deny the alleged offence.
The board does not wish it to be understood that the above
catalogue of circumstances which it believes the board
should take into consideration in determining whether
disciplinary action taken by the company should be
mitigated and varied, is either exhaustive or conclusive.
Every case must be determined on its own merits and every
case is different, bringing to light in its evidence differing
considerations which a board of arbitration must consider.
Steel Equipment Co. Ltd. (1964) 14 LAC 356, at pp.40-41.
Unfortunately, this indigenous arbitral solution was abruptly aborted by the Supreme
Court of Canada, when it reversed the Ontario Court of Appeal and the arbitrator in Port
Arthur Shipbuilding:
The task of the Board of Arbitration in this case was to
determine whether there was proper cause. The findings of
fact actually made and the only findings of fact that the
Board could possible make establish that there was proper
cause. Then there was only one proper legal conclusion,
namely, that the employees had given the management
proper cause for dismissal. The Board, however, did not
limit its task in this way. It assumed the function of
management. In this case it determined, not whether there
had been proper cause, but whether company, having
proper cause, should have exercised the power of dismissal.

The Board substituted its judgment for the judgment of


management and found in favour of suspension.
The sole issue in this case was whether the three employees
left their jobs to work for someone else and whether this
fact was a proper cause for discipline. Once the Board had
found that there were facts justifying discipline, the
particular form chosen was not subject to review on
arbitration.
(1968) 68 CLLC 14,136 at 587
On its face, that passage seemed to suggest that if an arbitrator found some employee
misconduct, no matter how trivial, then management had a totally unreviewable
discretion to select any form of discipline, no matter how heavy, up to and including the
dismissal of a long-service employee. Although some arbitrators attempted to mitigate the
impact of such a draconian doctrine (e.g. S.K.D. Manufacturing (1969) 20 LAC 231),
Canadian legislatures uniformly considered it necessary to overturn Port Arthur
Shipbuilding by statutory reform. Section 98 (d) of the Labour Code, the provision under
analysis in this case, is the vehicle through which the B.C. Legislature has sought to place
on a contemporary, industrial relations footing the law of discharge under a collective
agreement.
We have reviewed this historical background to Section 98 (d) to emphasize strongly its
central thrust. The B.C. Legislature, in common with all other Canadian legislatures,
wished to eradicate once and for all the residual traces of the common law of master and
servant which had surfaced in Port Arthur Shipbuilding and which would prevent an
arbitrator coming to grips with the real substance and respective merits of a discharge
grievance (Section 92 (3)) and thus impair the ability of arbitration to provide a
satisfactory resolution of such disputes without resort to stoppages of work (section 92
(2)). For that reason, it is not legally correct for an arbitrator in a discharge case to
assume that the common law definition of cause remains unchanged under the Code,
subject only to the possibility that an arbitrator might exercise an ill-defined discretion to
rescue an employee from the normal legal consequences of discharge and substitute a
lesser penalty on equitable grounds. An arbitrator who approaches a discharge
grievance with that reluctant set of mind simply is not proceeding in accordance with the
principles of the Labour Code.
Instead, arbitrators should pose three 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 employers 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?
Normally, the first question involves a factual dispute, requiring a judgment from the
evidence about whether the employee actually engaged in the conduct which triggered

the discharge. But even at this stage of the inquiry there are often serious issues raised
about the scope of the employers authority over an employee, and the kinds of employee
conduct which may legitimately be considered grounds for discipline. (See for example
Douglas Aircraft (1973) 2 L.A.C. (2d) 56.) However, usually it is in connection with the
second questionis the misconduct of the employee serious enough to justify the heavy
penalty of discharge?that the arbitrators evaluation of managements decision must be
especially searching:
(i)
How serious is the immediate offence of the employee which precipitated
the discharge (for example, the contrast between theft and absenteeism)?
(ii)
Was the employees 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 accord with the consistent
policies of the employer or does it appear to single out this person for arbitrary
and harsh treatment (an issue which seems to arise particularly in cases of
discipline for wildcat strikes)?
The point of that overall inquiry is that arbitrators no longer assume that certain conduct
taken in the abstract, even quite serious employee offences, are automatically legal cause
for discharge. (That attitude may be seen in such recent cases as Phillips Cables (1974) 6
L.A.C. (2d) 35 (falsification of payment records); Toronto East General Hospital (1975) 9
L.A.C. (2d) 311 (theft); Galco Food Products (1974) 7 L.A.C. (2d) 350 (assault on a
supervisor).) Instead, it is the statutory responsibility of the arbitrator, having found just
cause for some employer action, to probe beneath the surface of the immediate events
and reach a broad judgment about whether this employee, especially one with a
significant investment of service with that employer, should actually lose his job for the
offence in question. Within that framework, the point of the third question is quite
different than it might otherwise appear. Suppose that an arbitrator finds that discharge
and the penalty imposed by the employer is excessive and must be quashed. It would be
both unfair to the employer and harmful to the morale of other employees in the
operation to allow the grievor off scot-free simply because the employer overreacted in
the first instance. It is for that reason that arbitrators may exercise the remedial authority
to substitute a new penalty, properly tailored to the circumstances of the case, perhaps
even utilizing some measures which would not be open to the employer at the first
instance under the agreement (e.g. see Phillips Cables, cited above, in which the
arbitration board decided to remove the accumulated seniority of the employee).

IV
Returning to the particulars of this case, the primary focus of the Unions attack on the
arbitration award was on its finding that Mrs. Martelli did something wrong, for which
the employer was entitled to issue any discipline at all. The Union contended that the
only reasonable inference from the facts at the hearing was that Mrs. Martellis statement
about the inefficiencies at the plant were true and that she was not motivated by any
desire to defame or harm her employer. However, the majority of the arbitration board
disagreed with the Unions position with respect to these matters of concrete fact. There
is no basis under Section 108 of the Code for this Board to substitute its own views about
the proper findings of fact for those made by the arbitration board. In our recent decision
in Simon Fraser University [1976] 1 Canadian LRBR, we said that the arbitrators
interpretation of the language of the particular agreement should not be touched by this
Board under Section 108 simply because we might disagree about the proper meaning. A
fortiori, that requirement of self restraint applies to the arbitrators judgment about the
concrete sequence of events leading up to a grievance. This Board does not hear the
evidence about these events, it does not see the witnesses, and it does not have access to
any transcript of arbitration proceedings. It is hardly practical for us to assume that we
could reach a more accurate judgment about the facts than members of the arbitration
board which does have each of these advantages (and on the assumption that the
arbitration board has afforded both parties a fair hearing within the meaning of Section
108 (1) (a) of the Labour Code). We do not interpret the limited supervisory role afforded
to this Board under Section 108 as entitling us to find that alleged erroneous findings of
fact by an arbitrator may render its award inconsistent with the principles expressed or
implied in the Labour Code.
Accordingly, we must address the Unions first argument upon the assumptions with
which the majority of the arbitration board perceived the evidence: Mrs. Martelli phoned
up the newspaper, accused her employer of serious inefficiencies, and did so in a
vindictive effort to discredit her employer. She took this action at a time when her
employer, a Crown-owned corporation, was under vigorous public attack by farm
organizations for creating a backlog in the processing of poultry, a backlog which was
costing farmers a great deal of money. Understandably, in the summer of 1975 in British
Columbia, Mrs. Martelli asked the newspaper not to quote her directly unless you want
to get me fired. We reiterate that we are not endorsing these factual conclusions of the
arbitration board. But we are in no doubt that the facts as the board majority found them
to be would give the employer just and reasonable cause for some discipline.
However, there is a further difficulty in the arbitration decision. Reading the award on its
face, the Board appeared to have adopted a two-step procedure. First of all, it evaluated
the evidence of the immediate incident on the assumption that if the employee did engage
in the conduct as alleged by the employer that would constitute just cause for discharge.
Having so found, and thus concluding in answer to the first question that the grievor was
not unjustly dismissed by the employer, only then did the arbitration board turn to a
second inquiry about whether to order reinstatement under its statutory authority under
Section 98 (d). It was in response to that second question that the arbitration board

canvassed the evidence of the grievors motivation, attitude, and previous disciplinary
record.
For the reasons we have spelled out in detail in the preceding section of this decision, that
manner of posing the issues in a discharge case is not correct. Having found as a matter
of fact that Mrs. Martelli had engaged in immediate conduct which warranted discipline,
the arbitration board must then decide whether the form of discipline selected by the
employerdischargewas or was not excessive in all of the circumstances. Such
features as the employees motivation, attitude, and disciplinary record are directly
relevant to the question of whether the employee was justly dismissed by the employer in
the first place. They should not be relegated to a secondary level of inquiry in which the
arbitrator must be persuaded that there are good and sufficient reasons for relieving
employees of the fate which is allegedly required as a matter of law for their immediate
offence.
But while we disapprove of the manner in which the written reasons for decision were
phrased, we are not satisfied that the Boards analysis and ultimate conclusion regarding
the immediate grievance was actually impaired by that inadequate formulation of the
questions. Reading the majority and the minority opinions together, it is apparent that this
arbitration board did come to grips with the substance and the respective merits of this
dispute. Both opinions assume that Mrs. Martelli was wrong in phoning the newspaper as
she did and that she deserved some penalty for this action. The majority took a much
graver view of this incident because of its findings of fact about her motivation. From its
appraisal of the grievor on the stand, the majority also believed that she remained
recalcitrant in her attitude towards her employer. The majority then considered her
previous disciplinary record, the most prominent feature of which was the fact that she
had been fired not that long before; and while she was reinstated by the earlier arbitration
board, that Board substituted a one-year suspension, thus indicating its view of the
seriousness of the earlier incident. Mrs. Martelli went back to work pursuant to that
arbitration decision in April 1975. Less than five months later, she was in the further
difficulty reflected in these arbitration proceedings. Having evaluated the results of the
grievors experience of a very long suspension, the majority of this arbitration board was
now of the view that dismissal was required in the circumstances and refused to order her
reinstatement a second time. We wish to make it clear that we are neither endorsing nor
disapproving of these judgments. However, we are not satisfied that the decision of the
majority of this arbitration board was inconsistent with the principles expressed or
implied in the Labour Code and that there are any grounds for setting aside that award.
Accordingly, the Unions application under Section 108 of the Labour Code is hereby
denied.
Clarence J. Alcott
Angus Macdonald