Employer Allowed to Call Rebuttal Evidence in Text Message Controversy

November 2015

Article by: Graeme McFarlane

In BC Hydro & Power Authority and International Brotherhood of Electrical Workers, Local 258 (August 4, 2015) Arbitrator Moore considered the Employer’s application to call rebuttal evidence. In particular, BC Hydro (or the “Employer”) sought to call expert rebuttal evidence regarding albacore tuna. The Union opposed the application, arguing the rebuttal evidence was collateral to the reasons for the Grievor’s termination and violated the collateral fact rule.

Background

By way of background, this application arose in the context of a termination grievance. The Grievor, a Power Line Technician, was terminated from BC Hydro due to alleged breaches of the Employer’s Code of Conduct and alleged theft of power facilitated by installing a second service line to his own property and by operating a power diversion.

Following his dismissal, the Employer discovered certain suspicious text messages on the Grievor’s work issued cell phone. One of the text messages read: “Linder got 1850 sq ft yesterday”. The Employer suspected this text message was code for the price per pound of marijuana and that the Grievor was involved in the illegal sale of marijuana. The Employer presented evidence to this effect during its case.

The Union provided no explanation for the text message until the Grievor took the stand and stated, for the first time in his direct examination, that the text message actually referred to the price per pound of albacore tuna. The Grievor described going on a fishing trip in April 2013, catching several hundred pounds of albacore tuna, and selling them to family and friends.

Following the close of the Union’s case, the Employer applied to call expert rebuttal evidence regarding the price and availability of albacore tuna in April 2013 off the coast of British Columbia. The rebuttal evidence was sought to prove the Grievor fabricated his explanation.

 Arguments

The Employer argued it should be permitted to call the rebuttal evidence because the Grievor’s explanation for the text message was not provided until the Union responded to the Employer’s case, and the Employer could not have reasonably anticipated this explanation.

The Union opposed this application, arguing the rebuttal evidence was collateral to the main issues and offended the collateral fact rule.

Decision

In the result, Arbitrator Moore allowed the Employer’s application, finding the expert testimony was proper rebuttal evidence in the circumstances of the case for three reasons.

First, the Employer could not have reasonably anticipated the Grievor’s explanation prior to the Union’s case being put in. Second, the evidence would not necessarily amount to collateral evidence because it was potentially relevant to the Grievor’s termination and of sufficient importance to the case. Third, the collateral fact rule was inapplicable because the new facts in question arose in direct examination, and the collateral fact rule only applies to answers given by a witness to questions first put to them in cross-examination, concerning collateral facts.