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BCLRB Orders Re-Opening of Arbitration Hearing, Based on New Medical Evidence Obtained More Than Four Years After Issuance of Award Upholding the Discharge
March 10, 2004

A reconsideration panel of the BC Labour Relations Board has upheld an earlier decision where the Board ordered the re-opening of an arbitration hearing, based on new medical evidence obtained more than four years after the issuance of the original arbitration award upholding the grievor’s discharge.

The case involved an employee who was dismissed for neglect of duty and being absent without leave. The grievor had left work in the middle of his shift without telling anyone, and had taken a bus to Los Angeles where he had remained for 10 days. At the arbitration hearing, the Union presented medical evidence that the grievor suffered from depression, chronic alcoholism and a personality disorder. The Union argued that the employer had failed to accommodate the grievor’s disability contrary to the Human Rights Code. The arbitrator rejected these arguments and upheld the discharge, finding that there was no evidence that the grievor’s actions had been caused by his disability.

Four years after the issuance of the arbitration award, the Union obtained a report from a registered psychologist, who expressed the opinion that the grievor had been suffering from a condition known as “dissociative fugue” when he had left work on the day in question. The psychologist opined that the episode which had resulted in the grievor’s dismissal was involuntary and that the grievor’s actions would have been beyond his ability to control or overcome.

The Union applied to the LRB under Section 99 of the Labour Relations Code, for an order that the arbitration hearing be reopened to hear the new evidence contained in the psychologist’s report. The original panel of the Board concluded that what the arbitrator had found to be culpable behaviour may well have been non-culpable, thereby placing the dismissal on an entirely different footing. The original panel found that the new evidence went to the very heart of the arbitrator’s conclusions. As the original arbitrator was no longer available to hear the new evidence, the panel ordered that the matter be referred to a new arbitrator to consider the new evidence and its potential effect upon the outcome.

The Employer applied for reconsideration of the original panel’s decision, arguing that it was far too late for the Union to seek to introduce new evidence. The reconsideration panel upheld the original panel’s decision, finding that it contained no errors of law or policy. The Board confirmed that while considerations of finality, certainty and potential prejudice arising from the passage of time are important when determining the admissibility of new evidence, they must be weighed against considerations of justice and fairness.

Celgar Pulp Company and PPWC, Local No. 1, BCLRB No. B53/2004 (Reconsideration of BCLRB No. B82/2004), February 13, 2004.