Written by Daniel Standing LL.B., Editor, First Reference Inc.
The 2019 British Columbia labour arbitration decision regarding BC Hydro and Power Authority and IBEW, Local 258 (Vanegas), Re (2019 CarswellBC 4126), considered the case where a worker with a history of poor behaviour had an outburst in a fact-finding meeting. This culminating incident led to his dismissal. The arbitrator’s decision demonstrates the traditional analysis that takes place in disciplinary cases with a consideration for various aggravating and mitigating factors. In this case, despite the worker’s poor record and lack of remorse, several compelling mitigating factors convinced the arbitrator to substitute a lengthy unpaid suspension for the termination.
At the time of the hearing into his grievance, Roberto Vanegas was a 59-year-old electrician with BC Hydro. He was hired in 2008 and encountered some and was transferred in 2018 to the employer’s operations at Fraser Valley West Stations in April 2018. For unspecified reasons, he considered this to be a “fresh start” and understood that any concern could lead to his termination. At the time of the incident in question, he reported to his crew lead, Dennis Bonkowski and his manager, Craig Turnbull.
BC Hydro had a detailed safety protocol and chain of command that applied to the discovery of a safety hazard on the job site. Under the terms of the “Safety Stop” policy, if an employee calls a safety stop, all crew were required to stop work and the crew lead would try to resolve the issue. If that was not possible, the manager would be called. When the issue was resolved, the workers would sign off on the resolution of the problem. Vanegas was aware of the policy.
While at work on September 5, 2018, he was concerned that the load tap changer (“the LTC”) was operating while work was being performed. He raised his concern with Bonkowski, who responded that he saw no problem with the LTC being left in automatic mode while they worked. Bonkowski offered to call the control centre for guidance if Vanegas wanted him to, but Vanegas did not ask him to do so. Instead, without informing Bonkowski, he left the immediate work area and called the control centre. After he explained the situation with the LTC, he called Turnbull at the control centre’s request. Vanegas explained the situation to Turnbull, who told him that the LTC could be put in manual mode if required. He said that he would follow up with Vanegas the next day.
On September 6, Turnbull summoned Bonkowski and Vanegas to his office. He wanted to find out what had happened with the LTC the day before. While Vanegas described Turnbull’s voice as being “loud-the boss voice,” others who heard the conversation described him as being calm, respectful and firm. The meeting ended abruptly when Vanegas got up and left to find another employee. When the meeting resumed, Vanegas repeatedly got up from his chair, yelling at Turnbull. Each time this happened, Turnbull told Vanegas to sit down and calm down. He assured him he was not accusing him of anything, but that he wanted to gather the facts. Unable to calm him down, Turnbull told Vanegas to go home. He didn’t feel it was safe for Vanegas to be at work in his state.
By that point, Vanegas had accumulated a serious disciplinary record. In the past four years, he had received a letter of expectation, two written warnings, a one-day suspension and a 15-day suspension. All but the longest suspension were for insubordinate or disrespectful conduct. The employer considered the latest outburst to be the final straw. On September 18, the employer terminated Vanegas’ employment because of the September 6 culminating incident which, it was claimed, “led to the employment relationship suffering irrevocable damage” which was beyond repair.
The parties’ positions
The union acknowledged that there was just cause for discipline, but it argued that termination was excessive. The union argued that several mitigating factors should lead to a reduction in the penalty, namely, the spontaneity of the outburst, the absence of union involvement as a calming influence at the September 6 meeting, the employee’s length of service and the economic hardship imposed on Vanegas as his family’s sole breadwinner.
The employer pointed to the absence of remorse as an indication that Vanegas lacked rehabilitative potential. It argued there was no breach of representational rights since the collective agreement contained no requirement for a union official to be present in a fact-finding meeting. It argued that Vanegas’ unprovoked conduct lasted several minutes and was similar to similar past behaviour that attracted discipline. In the alternative, it proposed damages in lieu of reinstatement, and further, the imposition of an unpaid suspension to the date of the award.
The arbitrator’s decision
The arbitrator began his analysis by noting the three-part test that applies to all discipline and discharge cases. It requires the arbitrator to first assess whether there is justification for any form of discipline. If so, the arbitrator considers whether termination is excessive. Finally, the arbitrator will consider whether a lesser form of discipline should be substituted.
The union’s concession that some form of discipline was warranted allowed the arbitrator to move directly to the second stage of the analysis. The arbitrator concluded that there was no just cause for discipline for anything that happened on September 5. While Vanegas should have informed Bonkowski that he was calling the control centre, his actions in breach of protocol could be addressed through coaching to ensure that Vanegas was aware of proper protocol.
However, the September 6 meeting led to a different conclusion. The arbitrator noted Vanegas’ loud, agitated and insubordinate behaviour. After siding with the employer on the issues of union representation at the meeting and the lack of provocation, the arbitrator turned to the mitigating factors applicable to the question of whether termination was excessive.
Of key importance in this case were the grievor’s lengthy service of more than 10 years, and the spur of the moment nature of the behaviour. There was evidence at the hearing of some remorse and an attempt to obtain self-help and anger management skills. Finally, the arbitrator was motivated by the special economic hardship caused by the grievor’s termination, given that he had three small children and his wife was unable to work.
Unconvinced that the relationship was beyond rehabilitation, the arbitrator substituted an unpaid suspension to the date of his award, sending a “strong message” to Vanegas about his conduct. He also ordered Vanegas to take anger management on his own time.
Takeaways for employers
This case will serve as a useful precedent for employers when considering disciplinary measures for a culminating incident, particularly in cases of insubordinate behaviour. The arbitrator’s reliance on economic hardship and length of service also serve as important considerations for any employer considering a termination. With the assistance of trained legal counsel, employers may determine that these or other compelling circumstances merit the imposition of a lesser form of discipline, saving termination for situations where the employment relationship truly is beyond repair, or where a sufficiently long history of suspensions and lesser discipline has failed to achieve its deterrent effect.