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Arbitration re-opened four years after award
May 26, 2002

The BC Labour Relations Board has upheld an application for the review of arbitration award filed by PPWC Local 1 four years after the award was issued. In the 1997 award, Arbitrator Kelleher had upheld the discharge of an employee who had, without explanation, absented himself from work. Four years after the dismissal had been upheld, the union learned from the employee’s psychiatrist that the employee was, at the time of the dismissal, likely suffering from a rare condition known as dissociative fugue. This condition can cause one to leave familiar surroundings without any apparent reason; such flight is involuntary and beyond the person’s ability to control or overcome. The psychiatrist himself had only at that time come to that diagnosis.

This discovery, the union argued, changed what had been considered a culpable act, to an action that could well be seen as non-culpable. The union claimed that such a finding would undermine arbitrator Kelleher’s reasoning, and quite possibly lead to an opposite result.

The company argued that the union had not met the test for introducing new evidence because it failed to exercise due diligence and because it failed to bring the matter forward in a timely manner.

The labour relations board examined the criteria for the introduction of new evidence under section 99. That test is perhaps most thoroughly articulated in Foremost Foods, IRC No. C42/89, and consists of three requirements;

  1. that the evidence be introduced within a reasonable period
  2. that the evidence could not have been obtained earlier through due diligence; and
  3. that there existed a strong probability that the new evidence would have had a material and determinative effect on the arbitrator’s previous ruling.

The board found that the new evidence met all three of the factors set out in Foremost Foods. In response to the company’s contention that, while the third factor may well have been met the first two factors had not, the Arbitrator found that the fact that the evidence was not discovered until almost four years after the initial arbitration award was no one’s fault, given the acknowledged difficulty in diagnosing such a condition. Additionally, the Arbitrator found that, while what constitutes a reasonable period should typically be measured in days and weeks, exceptions can be made under the legislation for exceptional cases such as this.

The Arbitrator also considered the company’s worry that to revisit an award after such a lengthy delay would inevitably affect third party rights (such as the employee currently occupying the grievor’s old position, should that position still exist). With respect to such a concern, the Arbitrator noted that innovative arbitration awards could be invented (such as a severance package, or reinstatement to the first vacancy) to minimize or avoid any interference with third party rights.

It should be noted, however, that the company has sought leave for reconsideration of the Section 99 decision on the basis that:

  1. The original panel erred in law when it allowed the union application to revisit new evidence over four and a half years after the award was rendered; and
  2. The original panel erred in law by imposing a burden on the company to submit its own medical evidence and committed a denial of natural justice when it made material findings of discputed fact without a hearing.