BC Arbitrator Orders “Make Whole” Remedy After Union Invokes Doctrine of Double Jeopardy
July 13, 2021
July 13, 2021
Previously printed in the LexisNexis Labour Notes Newsletter.
In School District No. 73 v. BCTF (Wasylik Grievance), a recent British Columbia labour arbitration case, Arbitrator Ken Saunders issued a supplementary award respecting remedy after finding that the union had properly invoked the labour relations doctrine of double jeopardy to bar the grievor’s just cause dismissal.
Simply put, the doctrine of double jeopardy stands for the proposition that an employee can only be disciplined once for the same offence.
As part of his award, Arbitrator Saunders considered an arbitrator’s remedial discretion under section 89 of the BC Labour Relations Code (the “Code”) as it relates to a finding of double jeopardy. The award is summarized below.
In 2016, the employer investigated an allegation that the grievor had acted inappropriately towards a student. The grievor denied key allegations when the employer sought an explanation for the suspected misconduct. The employer’s investigation resulted in the grievor’s suspension. The union grieved the suspension and the parties settled the grievance by substituting a three-day suspension for the five-day suspension.
The employer also referred the matter to the BC Commissioner for Teacher Regulation. This process led to a consent resolution agreement. The grievor’s admissions in that agreement were contrary to his denials when the employer sought his response in its 2016 investigation. The employer dismissed the grievor for dishonesty.
The issue for determination by Arbitrator Saunders was whether the employer dismissed the grievor for the same misconduct relating to his 2016 suspension. The arbitrator concluded that the grievor’s dishonesty in the 2016 investigation was already considered as part of his 2016 suspension and the settlement between the parties.
In the initial award, Arbitrator Saunders concluded that the union had properly invoked the labour relations doctrine of double jeopardy to bar the grievor’s dismissal, and accordingly the employer had not established just cause for discipline. For this reason, the arbitrator determined that there was no basis to substitute another penalty and ordered that the grievor be reinstated to employment.
The issues for Arbitrator Saunders’ determination in the supplementary award were whether the grievor was entitled to compensation for lost wages, benefits, service and seniority as a consequence of the grievor’s dismissal and, if compensation was owing, whether there should be any deduction in accordance with the principles of mitigation.
The employer argued in this case that there is no rule or principle that reinstatement is necessarily followed by a “make whole” order, even when there is a finding of no just cause. The employer argued the grievor did not act with clean hands, and the arbitrator should therefore not reward the grievor’s dishonesty by awarding him back pay. Arbitrator Saunders concluded in the earlier award that the employer had already considered the grievor’s unclean hands when it administered the 2016 discipline and settled the grievance concerning that discipline.
Arbitrator Saunders considered an arbitrator’s remedial discretion under section 89 of the Code, including the arbitrator’s ability to substitute another measure for discipline imposed by the employer. Under section 89(a) of the Code, an arbitrator may direct a person to pay all or part of the monetary value of an injury or loss suffered due to a collective agreement violation. Section 89(b) authorizes an arbitrator to order an employer to reinstate an employee dismissed in contravention of a collective agreement. Section 89(d) of the Code permits an arbitrator to “determine that a dismissal or discipline is excessive in all circumstances of the case and substitute other measures that appear just and equitable”.
Arbitrator Saunders highlighted that the Code confers on an arbitration broad the power to substitute appropriate measures when there is some cause for discipline, but the employer’s disciplinary response is found to be excessive. Similarly, the second and third stages of review under the Wm. Scott test are premised on a finding of just cause for some form of discipline.
Arbitrator Saunders questioned the employer’s proposition that section 89(d) of the Code goes so far as to permit the substitution of a disciplinary measure when there is no cause for discipline whatsoever. In the case of double jeopardy, there is no cause for discipline because discipline has already been imposed for the underlying misconduct. Arbitrator Saunders held that to issue an order substituting another penalty and, in effect, not make a “make whole” order in the case of double jeopardy seems notionally unfair and counter to the requirement for just and reasonable cause to justify discipline.
Arbitrator Saunders concluded that denying the grievor compensation would alter the substance of his previous award by negating a consequence of the finding of double jeopardy. The arbitrator declined to exercise his remedial jurisdiction to deprive the grievor of a “make whole” order in whole or in part. He also held that the language of the collective agreement between the parties did not displace the application of mitigation principles, and the “make whole” order was thus subject to mitigation.
Employers should always be alive to the doctrine of double jeopardy when making disciplinary decisions for employees with previous misconduct in both the employment and labour contexts.
Notwithstanding this principle, employers are still entitled to consider previous acts of misconduct when alleging just cause. On this basis, the misconduct and discipline records of employees, including the reasons for any discipline imposed, must be carefully reviewed and considered prior to determining any disciplinary outcome.
If an employee or union can successfully invoke the doctrine of double jeopardy, resulting in a finding that there was no cause for discipline, the employee may be reinstated to employment with a “make whole” order.
Natalie Cuthill is a lawyer with Roper Greyell LLP, an employment and labour law firm based in British Columbia. Natalie practises in all areas of provincial and federal employment and labour law, with an emphasis on employment litigation, human rights law and labour arbitration. She can be reached at (604) 416-1792 or firstname.lastname@example.org. For more information about Natalie and the rest of the Roper Greyell LLP 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.
 British Columbia Public School Employers’ Association School District No. 73 (Kamloops-Thompson) v. British Columbia Teachers’ Federation Kamloops-Thompson Teachers’ Association, 2021 CanLII 20861 (BC LA).
 British Columbia Public School Employers’ Association School District No. 73 (Kamloops-Thompson) v. British Columbia Teachers’ Federation Kamloops-Thompson Teachers’ Association, 2020 CanLII 76278 (BC LA).