Previously printed in the LexisNexis Labour Notes Newsletter.
In Teck Coal Ltd. v. United Steel, Paper and Forestry, Rubber, Manufacturing Energy, Allied Industrial and Service Workers International Union, Local 7884 (Lybacki Grievance),  B.C.C.A.A.A. No. 114 (Glass), Arbitrator Nicholas Glass dismissed a union grievance concerning the discharge of two employees, Lybacki and Sandberg, from their maintenance positions at Teck Coal’s Fording River mine.
The two were terminated from employment after falsely accusing their supervisor, Hennessey, of being under the influence of alcohol while at work. Extensive evidence was introduced during a 10-day hearing concerning what the two employees said and did after they claimed to have smelled alcohol on Hennessey and their motivation and handling of the matter.
Summary of facts and findings
The two grievors each had a history of criticizing the employer and their supervisor, Hennessey.
Lybacki was described as frequently referring to the company as “a s#!% hole” and not thinking highly of his supervisor, making comments such as he is “high strung”, “[makes] bad calls” and does not know what he is talking about.
Similarly, Sandberg had a low opinion of Hennessey and was on one occasion caught mimicking him in a mocking voice, saying, “I’m Don Hennessey. I’m a f$%^&*g idiot. I don’t know what I am talking about.”
The two were also critical of recent discipline against a group of employees who had left work early. This criticism continued during the investigative interviews of each of the grievors and bore on the arbitrator’s ultimate conclusion regarding the retaliatory motivations behind the conduct which led to the termination of their employment.
The employer led evidence that the mine site was a safety-sensitive workplace, with a large number of employees working at any one time. It also provided evidence regarding its extensive safety program, in place since 2005 and in which all 14,000 of its employees had been “indoctrinated”. In practice, this meant 23 hours of training, with a clear message that each employee was responsible for promoting the safety of all employees. Included in this general obligation was the expectation that employees had to contact their supervisor whenever a safety issue arose. Further evidence was tendered regarding the collective agreement obligation to immediately report unsafe equipment practices or conditions to a supervisor, and the employer’s drug and alcohol policy, which identified various risk areas associated with alcohol use, including hangover and carryover effects, and made clear that a blood alcohol level of 0.02 was considered a safety risk and a “positive test” was prohibited by the policy.
Evidence was led that on the day in question, both grievors had reported to other employees that Hennessey was not only smelling of alcohol but also under the influence of it. They denied making such statements but their evidence was contradicted by others, who reported being told by the grievors that the supervisor was impaired. Further, during the investigative interviews, Sandberg had claimed that Hennessey “showed up drunk and he was called out on it”.
Arbitrator Glass resolved these and other factual discrepancies against the grievors, considering, in part, the numerous changes and inconsistencies in the grievors’ statements to management – in writing, during interviews and at the hearing. This was made possible by the detailed notes taken during the investigations, which revealed the changing stories of the grievors over time.
The arbitrator also relied on similar fact evidence that one of the grievors engaged in “jokes” and then lied about his involvement.
He was also able to rely on extensive witness testimony from the employer’s numerous witnesses, who reported numerous and lengthy interactions with Hennessey on the day in question, with no observations of alcohol odour or unusual behaviour which might be associated with alcohol use or its impacts.
Another damaging fact for Lybacki, both on the issue of credibility and motivation, was the rumour he started that Hennessey had been taken for a urine test in accordance with the employer’s drug and alcohol policy. This was disproven by the employer in evidence, with reliance on testimony of the employer tester and Hennessey. The arbitrator further rejected the union’s argument that Lybacki may been honestly mistaken about the identity of the woman he says he saw (the tester). He held that Lybacki’s claim was “a further fabrication designed to provide corroboration for the message [he] was distributing that … Hennessey was intoxicated [and] not just that he smelled an odour of alcohol on him”, and found that this was “also evidence of bad faith and … an intent to harm [Hennessey]”.
As for Sandberg, his credibility was called into doubt by his claim that another employee had told him that he smelled alcohol on Hennessey. When that employee testified at the hearing, he indicated that because of his allergies, he could not smell anything except cigarettes, and he denied smelling any alcohol on Hennessey.
Arbitrator Glass also addressed the union’s argument that an insufficient number of employees were interviewed by the employer in order to ascertain whether they had smelled alcohol on Hennessey. He noted that the employer engaged in reasonable efforts to interview employees, both from management and within the bargaining unit. In contrast, the union failed to introduce evidence from any employee, other than the grievors, who claimed that Hennessey smelled of alcohol. This was all the more notable, according to the arbitrator, in light of the many months between the event and the hearing.
The arbitrator also found it curious that the grievors were aware of the appropriate reporting route (to a supervisor) but had failed to follow this well known expectation. They had taken no steps to follow up or otherwise pursue the issue through other mechanisms.
Turning to the issue of motivation and bad faith, the arbitrator held that there was more than enough tension and hostility toward Hennessey on the part of some of the crew members to motivate the grievors to generate a harmful rumour against him. He held that bad faith does not require absolute proof that the false allegation was known to be untrue. Rather, it is sufficient for the allegation to be made recklessly, not caring whether it is true or false. He found that the false story about smelling of alcohol and impairment was motivated by a desire to harm the supervisor.
Relying on past arbitration awards which define bad faith conduct as “dishonesty, recklessness or gross negligence”, the arbitrator concluded that the grievors had engaged in deliberate falsehood in order to damage Hennessey’s reputation and standing, and had spread false statements and rumours that were perpetrated recklessly, without regard for their truth, and again with the intent to harm the supervisor. Considering all of the evidence, he rejected the union’s argument that the grievors sincerely believed their allegations to be true.
Arbitrator Glass concluded that the grievors had engaged in bad faith behaviour, deserving of discipline. He found such actions to be compatible with the employment relationship, and deserving of the usual penalty of discharge for making a false allegation against a co-worker because of the breach of the trust and honesty requirements which are the cornerstone of an employer-employee relationship.
This case illustrates at least a couple of important lessons for employers.
First, employers are much more likely to be able to discover and then prove dishonesty when investigators are well trained on investigation techniques and take comprehensive notes of investigative interviews. It can also be useful to request written statements, followed by interviews, as this can reveal inconsistencies in employee accounts. The arbitrator in this case was able to reach many of his conclusions on credibility because the employer had conducted a thorough investigation, with detailed notes.
Second, standing up against misconduct of this kind has a cost, but also a significant benefit. While the arbitration hearing took 10 days, and undoubtedly took many more days of preparation, all the while using up valuable resources that are well spent elsewhere, this type of discord could not be permitted to fester and spread in the workplace.
Ryan Copeland is a partner at Roper Greyell LLP in Vancouver. He practises in all areas of employment, labour and workplace human rights law. Ryan can be reached at firstname.lastname@example.org. For more information about him and Roper Greyell’s other lawyers, please visit www.ropergreyell.com.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.