BC Labour Relations Board Finds No Anti-Union Animus in Discharge of 30-Year Employee During Organizing Drive

Previously printed in the LexisNexis Labour Notes Newsletter.

Article by:  James D. Kondopulos and Teodora Bardas (articled student)

In Re RMC Ready-Mix Ltd., 2021 BCLRB 99, Vice-Chair Andres Barker of the BC Labour Relations Board held that the discharge of a 30-year employee (“the Employee”) did not amount to an unfair labour practice under the Labour Relations Code as alleged by the union.

Facts

The employer’s workplace was not unionized, although the union had recently attempted an unsuccessful organizing campaign.  The union claimed it was in the middle of another campaign when the employment of the Employee was terminated.  It argued that the employer discharged the Employee from employment in order to quell support for the union and therefore committed an unfair labour practice.  The employer maintained that there was proper cause for the discharge.

The Employee was in a supervisory position and had worked for the employer since 1990.  While he was ultimately discharged for his breach of the Workplace Bullying, Harassment and Violence Policy (the “RWP”), he also had prior discipline on his record.  He had previously received a verbal warning for failing to submit daily plant logs.  He had also received a written warning and a five-day suspension for sending subordinate workers onto scaffolding which the Employee knew to be unsafe.  The employer asserted that the Employee was “already on thin ice” based on those prior infractions.

In September 2020, the Employee commenced a medical leave.  One month after his return to work, in December 2020, two workers made complaints to the employer that he was engaging in bullying and harassing behaviour at the worksite.  As a result, the employer hired an independent investigator to determine whether there had been a breach of the RWP (the “Investigator”).

The Investigator provided a summary report concluding that the allegations against the Employee met the definition of bullying and harassment.  The Investigator recommended further investigation.  The employer engaged the Investigator to interview additional workers, including the Employee.  In the result, a wide array of allegations against the Employee were found to be justified and the Employee was determined to have breached the RWP.  The Investigator recommended termination of employment.

After conducting an interview with the Employee and two other workers, the employer decided to discharge the Employee from employment and that resulted in this case before the Board.

Decision

In its decision, the Board considered the prior disciplinary record of the Employee as well as the findings of the RWP investigation.

Before the Board, ten workers testified against the Employee, describing a toxic and abusive work environment.  In his testimony, the Employee denied of all the allegations against him.  In balancing the evidence, the Board held that it was unlikely every worker was fabricating lies about the Employee’s behaviour.

In its decision, the Board accepted that the employer was aware the Employee was difficult to work for, but that until the employer received the results of the investigation, it was unaware of the extent and severity of the Employee’s behaviour.  As a result, there was no finding of condonation.

While there were suggestions made that the Employee’s behaviour towards the workers was simply a reflection of an “old school” style of management, the Board held this was not accurate and actually represented a “toxic and inappropriately aggressive manner of supervision”.

The Board recognized that there was some degree of union activity occurring at the time of the Employee’s dismissal.  However, the workers who testified before the Board claimed that they were not aware of an organizing drive, or the Employee was a union supporter.

Balancing the evidence, the Board held that the employer met the onus for establishing proper cause for discharging the Employee.  Although the Board recognized that the union presented some circumstances to support a finding of anti-union animus, it ultimately held there was no anti-union animus on the part of the employer in the termination of the Employee’s employment.

Takeaways

• It is helpful to provide proper training on workplace policies and consistently apply and enforce those policies, especially in situations where the employer may need to rely on a breach of the policies in order to terminate the employment of an employee for cause.
• Conducting investigations into policy breaches before making any decision to discharge an employee for cause can help to establish proper cause.

James D. Kondopulos is a founding member and partner (practising through a law corporation) at Roper Greyell.  He was named by Lexpert as one of Canada’s leading lawyers under 40 and is ranked as a leading employment lawyer in the Canadian Legal Lexpert Directory.  He is also recognized as a leader in the area of employment and labour law in Chambers Canada, Who’s Who Legal and Best Lawyers International, Canada.  James can be reached by e-mail at jkondopulos@ropergreyell.com. 

Teodora Bardas is an articled student at Roper Greyell LLP, an employment and labour law firm based in British Columbia.  She is interested in all areas of workplace law, including employment, labour and workplace human rights law, and assisted in writing this article.

For more information about James and Teodora and the work they do at Roper Greyell, 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.