The BC Supreme Court has set aside an arbitrator’s decision which overturned the discharge of a CBC radio reporter for anonymously mailing a box of contaminated chocolates to the head of a political lobby group. The arbitrator had determined that the appropriate penalty was a three month suspension without pay and had ordered the reporter to enroll in anger management classes.
The Court overturned the arbitrator’s decision, and reinstated the reporter’s dismissal, on the basis that:
- The arbitrator’s conclusion that the grievor’s misconduct did not damage his journalistic integrity and credibility was patently unreasonable;
- The arbitrator exceeded his jurisdiction by considering a psychological report outlining the grievor’s post-dismissal rehabilitation efforts; and
- The employer was wrongly denied the opportunity to introduce evidence of the grievor’s employment history, i.e., the grievor had previously demonstrated angry, inappropriate behaviour during a disagreement with management and promised he would refrain from such behaviour in the future.
The Court noted that the post-dismissal psychological report considered by the arbitrator had concluded (after three counseling sessions) that the grievor had “learned much about himself and his life from this incident and that he is aware of his issues and has better tools to deal with them in the future.” In ruling the arbitrator should not have accepted the report into evidence, the Court observed that post-discharge evidence can only be relied upon if it sheds light on the reasonableness and appropriateness of the dismissal at the time the decision was made. In the present case, the report did not reveal information about the circumstances in existence at the time of the reporter’s dismissal, but only spoke to events occurring subsequent to the dismissal.
As a result the Court overruled the arbitrator’s award and reinstated the reporter’s dismissal.