Article by: Bobby Sangha
Previously printed in the LexisNexis Labour Notes Newsletter.
When considering potential discipline for poor performance, a novel labour arbitration decision suggests a demotion – a permanent disciplinary demotion – may be an appropriate response.
In Coquitlam Public Library v. Canadian Union of Public Employees, Local 561 (Levesque Grievance),  B.C.C.A.A.A. No. 85 (Sullivan), Arbitrator Christopher Sullivan was tasked with determining whether the Coquitlam Public Library had just and reasonable cause to discharge Lisa Levesque for inappropriate behaviour as a supervisor and dishonesty during a related investigation.
During the course of her 25 years with the Library, Ms. Levesque had moved up the ranks of the organization to become a Customer Experience Lead, a senior bargaining unit position with supervisory responsibilities.
In the fall of 2019, however, four employees came forward with separate but similar complaints against the grievor regarding her management style and work ethic and treatment of them.
After receiving these complaints, the Library did as any employer should do and put the allegations against Ms. Levesque to her during an investigative meeting. While it did not provide the grievor with the specific allegations in advance of the meeting, it did provide her with notice of the general nature of the meeting.
At the start of the meeting, the Library highlighted to Ms. Levesque the importance of providing honest answers. During the meeting, the grievor repeatedly denied any wrongdoing or flawed work performance.
After carefully reviewing the grievor’s responses, the Library determined that she was dishonest and terminated her employment for: (a) the concerns raised by the complainants; and (b) her dishonesty during the employer’s investigation. The Library took into account her existing coaching and disciplinary history.
In spite of agreeing with the findings of fact made by the Library in its investigation, the arbitrator – somewhat surprisingly – determined that the employer did not have just and reasonable cause to terminate Ms. Levesque’s employment.
The arbitrator essentially agreed with the union’s suggestion that the grievor may have better understood the gravity of the situation when providing her responses in the investigative meeting had she been provided with notice of the specific allegations against her in advance of the meeting.
The arbitrator did not, however, let Ms. Levesque off the hook for her misconduct. He substituted the termination of her employment with a two-week unpaid suspension and did not make any award for lost wages. Perhaps more significantly, he also demoted the grievor to a role with fewer supervisory responsibilities. With respect to the demotion – a permanent disciplinary demotion – he reasoned that Ms. Levesque had failed to improve her performance in spite of having previously been provided with the opportunity to do so. She was demoted to the next lowest position in the collective agreement which she was qualified to perform.
- This decision is a good reminder to management to consider whether the collective agreement has any language (even obscure language) which might require notice to be provided to an employee and/or his or her union prior to an investigative or disciplinary meeting.
- The larger takeaway, however, is the support which this decision offers for the proposition that a permanent disciplinary demotion may be an appropriate response to an employee’s poor exercise of his or her core responsibilities, especially if management has already invested significant time and energy in coaching the employee.
Bobby Sangha is an associate lawyer at the Vancouver-based employment and labour law firm of Roper Greyell LLP, where he practises in all areas of labour, employment and workplace human rights law. He is also an executive member of the CBABC Labour Law Section and a coach of the UBC Law Team for the National Labour Arbitration Competition. He can be reached at firstname.lastname@example.org. For more information about Bobby and the rest of the Roper Greyell team, 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.