Digest: Unifor, Local 892 v Mosaic Potash Esterhazy Ltd. Partnership, 2018 SKQB 68

Reported as: 2018 SKQB 68

Docket Number: QBG 2642/15 , QB17446

Court: Court of Queen's Bench

Date: 2018-02-27

Judges:

• Chow

Subjects:

• Labour Law � Arbitration Award � Judicial Review

Digest: The applicant, Unifor Local 892, applied for judicial review of an arbitration award dismissing the grievance of the grievor and upholding the termination of his employment by the respondent, Mosaic Potash. The grievor had been a mine operator with the respondent since 2004. In 2012, he was convicted of possession of child pornography and sentenced to 60 days� imprisonment to be served intermittently on weekends. He appealed and the Court of Appeal upheld the conviction and the sentence. When he began serving his sentence in September 2013, the grievor did not miss work as he was not scheduled to work on that weekend. He received a notice of termination for cause a week later. The grounds were: 1) his conviction for a crime of moral turpitude. The information regarding his conviction had been broadcast by a local radio station and had become public knowledge. The respondent�s reputation was harmed by the conviction; 2) his schedule required that he work every second weekend and he would not be able to fulfill his responsibilities while he served his sentence; and 3) his conviction for a serious criminal offence whilst employed by the respondent violated its Rules of Conduct and Standard of Discipline. An arbitration hearing was held after the filing of the grievance. The respondent�s position was that the termination was justified on the three grounds set out in its letter. The applicant argued that the grievor�s conviction had no impact on the respondent, its ability to conduct its work or its reputation. The respondent had failed to establish that the grievor was unable to perform his job because of the sentence and could not rely on its Rules unless the violation could be shown to have had a substantial connection to the employment relationship. The arbitrator relied on the five tests set out in the case of Millhaven Fibres Ltd. to decide whether an employee�s off-duty conduct warranted discipline or discharge and that if one or more of the criteria was proven, it might suffice to warrant discipline. The arbitrator concluded on the evidence that the respondent had proven the first criterion: that the conduct of the grievor could harm the employer�s reputation; and the fourth criterion: that the grievor was guilty of a serious breach of the Criminal Code, thus rendering his conduct injurious to its general reputation. The applicant�s grounds for judicial review were that the arbitrator: 1) acted unreasonably by upholding the termination on the basis of potential harm differing from the actual harm described in the respondent�s termination letter. In...