The employer dismissed a foreman for stealing gasoline when the employer learned from another foreman about the employee’s misconduct. The informant requested anonymity for fear of repercussions from the Union. When his identity became known, the informant changed his story because of union “threats”. The employer applied for dismissal of the grievance at arbitration on the basis that it had been denied a fair hearing. The Union argued that the employer’s application was premature because the merits of the case had not been decided.
Arbitrator Colin Taylor determined that by interfering with the informant-witness the Union had made a fair hearing on the merits impossible ‘just as effectively as if it had shredded the only copy of an affidavit from a witness who is no longer available’. The arbitrator noted that if not for the interference, the informant’s testimony would probably have justified the grievor’s dismissal.
Although the grievor did not participate in the Union’s actions, the arbitrator concluded that he had to accept the consequences of the Union’s conduct. The evidence was ‘hopelessly lost’, Arbitrator Taylor said, and there was no remedy that could preserve a fair hearing. In these circumstances it was proper to dismiss the grievance.