2022 ONSC 2524
DIVISIONAL COURT FILE NO.: 447/21
DATE: 20220427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Lederer, and McCarthy JJ.
BETWEEN:
TELUS COMMUNICATIONS INC.
Applicant
– and –
TELECOMMUNICATIONS WORKERS UNION, UNITED STEELWORKERS NATIONAL LOCAL 1944
Respondent
John Craig and Matt Craig, for the Applicant
Shaheen Hirani and Kristina Adhikari, for the Respondent
HEARD at Toronto (by videoconference): April 4, 2022
Swinton J.:
Overview
[1] Telus Communications Inc. seeks judicial review of an arbitration award of Kevin Burkett dated May 4, 2021, in which he reinstated a grievor who had been discharged and substituted a ten-day suspension. The arbitrator found that Telus had engaged in discriminatory treatment in discharging the grievor when a number of other employees who had engaged in similar misconduct received much lighter penalties.
[2] For the reasons that follow, I would dismiss the application, as Telus has not demonstrated that the arbitrator’s decision was unreasonable.
Factual Background
[3] The grievor was a Loyalty and Retention Agent in the Scarborough call centre of Telus’ operations. At the time of dismissal, he had 17 years of seniority.
[4] Telus is a company that operates Canada-wide. The grievor was a member of a national bargaining unit represented by the respondent Telecommunications Workers Union, part of the United Steelworkers Union (the “Union”).
[5] The grievor and five other employees at the Scarborough call centre were discharged in March 2019, because they were found to have engaged in fraudulent misconduct. They had added the “Easy Roam” feature to customers’ accounts without consent, for which they had received an incentive payment.
[6] The grievor’s case proceeded to arbitration, where the Union did not dispute that the grievor had engaged in conduct that warranted discipline. However, the Union argued that the penalty of discharge was excessive and discriminatory, because 10 other agents in call centres in Barrie and Calgary had received sanctions of written warnings up to suspensions of five days for similar misconduct.
[7] The arbitrator admitted in evidence the ten letters of discipline for the employees in Barrie and Calgary, as well as information about their seniority. He concluded that the conduct giving rise to the discipline of the grievor and the ten other employees was essentially the same misconduct, and he concluded that Telus had engaged in discriminatory treatment when it discharged the grievor. Having decided that the grievor should benefit from progressive discipline and taking note of the grievor’s job and seniority, the arbitrator substituted a ten-day suspension.
Issues
[8] Telus argues that the arbitrator’s decision is unreasonable for three reasons: the arbitrator erred by shifting the burden of proof to the employer to show there was no discrimination in the discipline imposed; he misapprehended the evidence; and he failed to consider all the grounds for dismissal, as well as post-termination conduct, when he decided that reinstatement was appropriate.
Analysis
The arbitrator did not reverse the burden of proof
[9] Telus submits that the arbitrator erred in failing to put the onus on the Union to prove discrimination in the application of discipline. It argues that the arbitrator failed to follow the approach adopted in AGT Ltd. and International Brotherhood of Electrical Workers, Local 348 (1996), 52 L.A.C. (4th) 415 (Sims) and prescribed in Re Canada Post Corporation v. Teplitsky (1986), 17 O.A.C. 290 (Div. Ct.).
[10] I see no error on the part of the arbitrator. He began his analysis by stating the importance, in the arbitral jurisprudence, of treating like cases of discipline similarly. He then discussed AGT, quoting para. 83 of that award:
The onus of proving discriminatory treatment by the employer rests with the union. An arbitration board making such a finding needs evidence to show that the material circumstances in the cases involved were similar in substance: see Re Canada Post Corporation v. Teplitsky and C.U.P.W. (1986), 17 O.A.C. 290 (Div. Ct.).
The arbitrator then set out what he called a “more nuanced” approach to determining whether there has been discriminatory discipline from that in AGT, stating at p. 15 of his award:
…the placement of the evidentiary onus in cases of alleged discriminatory treatment, as here, is more nuanced than the hard and fast rule set out by arbitrator Sims. Clearly, an arbitrator cannot make a finding of discriminatory treatment without evidence to support such a finding. Given that it will be the union that will make the allegation, the initial evidentiary onus rests with the union to establish that on a prima facie basis discriminatory treatment has occurred. If there are extenuating or mitigating factors that distinguish the case at issue from the cases put into evidence by the union, the evidentiary onus then shifts to the employer, as the party who knows why it imposed lesser discipline in these other cases, to establish these distinguishing factors and thereby to blunt the evidence led by the union that establishes the prima face [sic] existence of discriminatory treatment.
[11] I do not see any inconsistency between the AGT and Canada Post cases and the approach in the present award. The arbitrator was clearly aware that the Union bore the onus to provide evidence of discriminatory discipline. Indeed, on the following page of his award, he considered whether the Union had provided adequate evidence, finding as follows (at p. 16):
… the Union put into evidence 10 disciplinary letters signed by Telus managers detailing essentially the same misconduct as the grievor’s by Client Care agents and in regard to which the grievor’s manager acknowledged in cross-examination that, although he was not familiar with the individual circumstances in those cases, the described misconduct constituted fraud. Each of the disciplined employees is a customer care agent with less seniority than the grievor and the conduct, as described by the Employer in those letters, was similar, if not identical, to that of the grievor. The discipline ranged from a written warning to a five-day suspension. If there are distinguishing factors that would explain the discrepancy in treatment, these distinguishing factors are in the knowledge of the Employer. It alone knows why it acted as it did. Accordingly, the letters having been put into evidence, not challenged as other than authentic and Mr. Morasco having acknowledged that the misconduct described therein, which, to repeat, is similar if not identical to that engaged in by the grievor, constituted fraudulent activity, the evidentiary onus shifts to the Employer to justify the lesser discipline imposed on junior bargaining unit employees.
[12] The arbitrator had an evidentiary basis in the ten disciplinary letters from Barrie and Calgary to find that the conduct for which the grievor was discharged was “similar if not identical” to that of the ten employees who received significantly lesser forms of discipline. In contrast, in the Canada Post case on which Telus relies, the Divisional Court observed that the arbitrator “had absolutely nothing, no evidence from which he could make a finding that the material circumstances of the grievors’ case substantially conformed to the circumstances of the other employees who were alleged to have been treated more leniently” (at para. 22).
[13] The shifting of the evidentiary onus in this case was reasonable, given the evidence of discriminatory discipline led by the Union and accepted as persuasive by the arbitrator. His approach is also consistent with that of other arbitrators – see for example, Toronto Transit Commission v. Amalgamated Transit Union, Local 113 (Slotnick) at pp. 66, 70 and Purolator Inc. v. Teamsters Local 31 (McEwan).
[14] The arbitrator reasonably rejected Telus’ argument that the discipline cases to be compared should be those in the Scarborough call centre. Given that the grievor is a member of a national bargaining unit, the arbitrator reasonably concluded that the discipline imposed on other employees of that unit, whether in Scarborough, Barrie or Calgary, should be considered.
The decision was reasonable
[15] The arbitrator reasonably concluded that there was discrimination in the discipline imposed on the grievor, because of the lighter penalties imposed on the ten other employees who had engaged in similar if not identical misconduct. During oral argument of this application, Union counsel took the Court through a number of the letters, and they establish a basis for the arbitrator’s conclusion that there were significantly lighter penalties for comparable fraudulent misconduct. Telus is, in effect, asking this Court to interfere with the arbitrator’s weighing of the evidence. That is not the role of this Court on judicial review.
[16] Telus also argues that the arbitrator’s decision demonstrates a serious logical inconsistency. The arbitrator found discriminatory discipline because the Barrie and Calgary employees received a written warning or a suspension of up to five days. However, the arbitrator then imposed a 10 day suspension on the grievor. Telus argues that this suspension is significantly more severe and must indicate that the arbitrator considered the grievor’s conduct to be twice as bad as that of the person who received a five day suspension.
[17] There is no merit to this submission. The arbitrator found that there was discriminatory treatment in the discipline imposed for the same or substantially the same misconduct. He then had to determine the appropriate sanction for the grievor. He observed that the fact the grievor was a Loyalty and Retention Agent was a factor “at the margin” (p. 17). However, the misconduct was not a “capital offence that can reasonably be characterized as an irreparable breach of the trust between the Employer and employee that underpins this particular employment relationship” (at p. 18). He concluded that there was not just cause for discharge, and substituted the penalty of a ten-day suspension in light of the other penalties, the fact that the grievor was a Loyalty and Retention Agent, and the fact that he had 17 years seniority.
[18] The penalty was reasonable, and there was not a logical inconsistency between the finding of discrimination and the imposition of what the arbitrator concluded would be an appropriate penalty. The fact the arbitrator imposed a ten-day suspension is not, as counsel argues, an indication that the arbitrator found the grievor’s conduct to have been twice as bad as the conduct of the other employees. It reflects the arbitrator’s view of the appropriate penalty for the misconduct in light of the grievor’s position and seniority.
[19] Telus also argues that the penalty was unreasonable, because the arbitrator looked only at dishonesty and fraud without considering the other grounds on which Telus had relied in the dismissal letter – the grievor’s failure to report dishonesty by other employees, in violation of the employer’s Ethics Policy, and his failure to acknowledge his misconduct at the start of the employer’s investigation. Telus also relies on his post-termination conduct as a ground for refusing to reinstate, because Telus asserts that the grievor had not taken responsibility for his misconduct.
[20] Some of the letters relating to the employees who received lesser penalties reveal that they, like the grievor, were disciplined for more than adding Easy Roam without customer consent. Again, the arbitrator reasonably concluded that their misconduct was substantially similar to that of the grievor.
[21] Finally, the Union takes issue with Telus’ submission that the grievor did not take responsibility for his misconduct. It is not for this Court to resolve this disagreement. The arbitrator heard and considered the parties’ submissions and ultimately rejected Telus’ argument that the grievor’s conduct caused an irreparable breach of trust.
Conclusion
[22] Telus has not demonstrated that the arbitrator’s penalty decision was unreasonable on the facts of this case. Accordingly, the application for judicial review is dismissed.
[23] Costs to the Union are fixed at the agreed amount of $5,000.00 all inclusive.
Swinton J.
I agree _______________________________
Lederer J.
I agree _______________________________
McCarthy J.
Released: April 27, 2022
2022 ONSC 2524
DIVISIONAL COURT FILE NO.: 447/21
DATE: 20220427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Lederer and McCarthy JJ.
BETWEEN:
TELUS COMMUNICATIONS INC.
Applicant
– and –
TELECOMMUNICATIONS WORKERS UNION, UNITED STEELWORKERS NATIONAL LOCAL 1944
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: April 27, 2022