Finding the Line in the Sand for Collective Agreement Cause

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Introduction

In the wake of a workplace incident, employers often face two difficult questions: is discipline required and, if so, what is the appropriate amount of discipline?

Two recent arbitration decisions consider incidents that led to dismissals and illustrate how arbitrators balance misconduct against mitigating workplace factors.

The decisions reveal that deliberate, deceptive conduct and acts of physical violence both sit at the wrong end of the misconduct spectrum but also that factors such as lengthy service without disciplinary history, genuine remorse shown by the worker and the surrounding circumstances will be considered by an arbitrator in mitigating discipline.

Canadian Union of Public Employees, Local 1505 v. Wood Buffalo (Regional Municipality), 2025 CanLII 96701

What Happened

A municipal work crew in Alberta was assigned a routine task to dispose of a pile of dirt at a landfill. Instead, the pile ended up at the personal property of the first grievor (“Brown”), a long-serving team leader with the municipality. Brown had orchestrated the diversion while remaining on duty, directing others to “make it disappear” and co-ordinating the delivery that evening.

The second grievor (“O’Neil”), serving as acting team leader, was tasked with overseeing the crew during the transfer. Although O’Neil carried out Brown’s instructions, he failed to verify the delivery location or to take basic steps to ensure the instructions he received and delivered to his crew were appropriate.

Both Brown and O’Neil (the “Grievors”) participated in investigations conducted by the Regional Municipality of Wood Buffalo (the “Municipality”) and were subsequently dismissed. The Canadian Union of Public Employees, Local 1505 (“CUPE”) argued that mitigating factors including long service, prior good record, voluntary restitution and the isolated nature of the incident should reduce the severity of discipline.

The Arbitration

The Municipality characterized Brown’s conduct as deliberate misuse of municipal resources, deception and a breach of the Lost or Unclaimed Property Policy, arguing that those factors justified dismissal. For O’Neil, the Municipality emphasized a failure of leadership and a lapse in supervisory duties.

CUPE argued mitigating circumstances, with explanations for Brown including substance dependency, mental health stressors, voluntary restitution and long service. For O’Neil, it argued limited knowledge and involvement.

Arbitrator Rick Wilson found that Brown had engaged in deliberate, premeditated misconduct that involved co-workers and violated policy, so there was cause to discipline. However, the Arbitrator also considered Brown’s long service, his otherwise clean disciplinary record, his prompt offer to return the dirt, his apology and the fact that the Municipality did not appear to lose trust in Brown until later in the year.

The Arbitrator concluded that dismissal was excessive and therefore allowed the grievance in part, reinstating Brown to his former position with the period between his dismissal and reinstatement treated as a suspension without pay or benefits to be reflected on his discipline record. Not an insignificant penalty, but well short of termination.

For O’Neil, the Arbitrator concluded that although he failed in his acting leadership responsibilities, his misconduct was of a lower order than Brown’s, and his long service and prior record warranted reinstatement with a 10-working-day unpaid suspension.

Takeaways

This case is a good example of the dilemma employers face when issuing discipline to unionized employees: even when the misconduct can be proven, that may not be enough to justify termination when external factors are considered by an arbitrator.

Employers should include in their investigation questions concerning any external factors the employee may cite as reasons for their misconduct. Ask the questions up front. Often, union stewards will simply advise the employee not to say anything. Comprehensively document the employee’s explanation, history of misconduct and the nature of any apology. All of this may help in convincing an arbitrator that even where there are mitigating factors, lesser penalties might not adequately address the misconduct.

Suncor Energy Inc. v. Unifor Local 707-A, 2025 CanLII 74911

What Happened

The grievor (“Grievor”), a lube technician in Alberta with 14 years of service at Suncor Energy Inc. (“Suncor”), became upset after believing a co-worker (“Tyler”) had shirked duties by leaving a compressor problem unaddressed. A verbal dispute in the lube trailer ensued, with Tyler calling the Grievor a “man-child” before leaving. The Grievor chased Tyler outside, punched him in the face at close range and issued a serious threat of future violence.

The incident was witnessed by a co-worker, who confirmed that the Grievor had thrown the punch. The Grievor, in contrast, provided inconsistent accounts: he initially denied striking Tyler in his written Witness Statement Form, then later claimed during the investigation that he only touched Tyler’s jaw.

Following Suncor’s investigation, the Grievor was terminated for workplace violence. Unifor Local 707-A (“Unifor”) filed a grievance on behalf of the Grievor claiming that termination was too severe.

The Arbitration

Arbitrator James T. Casey, K.C., found that Tyler’s account was consistent and corroborated, while the Grievor’s testimony was internally inconsistent and generally unreliable. The Arbitrator acknowledged mitigating factors in the Grievor’s favour, including long service, a clean disciplinary record, the isolated and emotional nature of the outburst and some remorse. However, the Arbitrator found that the aggravating factors, including the intentional physical assault, explicit threats, the safety-sensitive context of mine operations and the Grievor’s dishonesty during the investigation process, to weigh in favour of a dismissal. The Arbitrator concluded that the employment relationship had been irreparably breached and upheld the dismissal.

Takeaways

The decision underscores a clear principle in labour law: acts of physical violence or threats of violence in the workplace, particularly in safety-sensitive environments, are considered very serious and can justify a termination for cause, even for employees with long service and otherwise unblemished records. It also highlights that an employee’s credibility and honesty during an investigation is critical; attempts to minimize, misrepresent or obscure their conduct impairs their credibility and reduces the effectiveness of any mitigating factors the employee may put forward.

Conclusion

These decisions emphasize that in any case of discipline under a collective agreement, the “crime” needs to fit the “punishment.” Unionized workplaces run on the concept of “progressive discipline,” meaning that unless the conduct is so severe that it merits termination, warnings and progressive suspensions may instead be required.

To determine the proper level of discipline, an effective and complete investigation combined with an understanding of the potential mitigating factors an arbitrator may consider is critical. These mitigating factors may include personal circumstances, apologies and, often most importantly, the previous disciplinary record and length of service. It should also consider the impact a lesser penalty will have on the workplace in terms of deterrence.

Arbitrations are long, expensive and often divisive proceedings. Employers should choose carefully in terms of which cases to pursue. Sometimes a pile of dirt may not be the hill to die on.

The Workplace Law Group at Aird & Berlis LLP provides strategic labour advice to help employers navigate union-related challenges, from resisting certification to managing collective bargaining and arbitration. Please contact the authors or a member of the team if you have any questions or require assistance.