Unifor, Local 3003 v. New Flyer Industries Canada ULC, 2016 MBQB 23

• Judge: Abra, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 14, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBQB 23;(2016), 325 Man.R.(2d) 125 (QB)

Unifor v. New Flyer Ind. (2016), 325 Man.R.(2d) 125 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.020

Unifor, Local 3003 (applicant) v. New Flyer Industries Canada ULC (respondent)

(CI 14-01-93052; 2016 MBQB 23)

Indexed As: Unifor, Local 3003 v. New Flyer Industries Canada ULC

Manitoba Court of Queen's Bench

Winnipeg Centre

Abra, J.

January 14, 2016.

Summary:

As a result of information received, the employer/Company searched the grievor's lunchbox and found five rolls of electrical tape. The grievor admitted, both before and after he had union representation, that the tape belonged to the Company. His employment was terminated. The Union filed a grievance. It was the Union's position that the Company breached Article 9.02 of the collective agreement (the right of representation). The grievance was ultimately referred to arbitration. The arbitrator found that the Company had "clearly proven" theft, a ground for instant dismissal under the collective agreement. Notwithstanding the finding that the Company breached Article 9.02, the discipline was not void ab initio. The Union applied to quash the award.

The Manitoba Court of Queen's Bench, on the standard of review of reasonableness, dismissed the application. The Court agreed with the arbitrator's finding that the Company violated Article 9.02 of the collective agreement. However, it was not unreasonable for the arbitrator to decide that the discipline imposed was merely voidable and not void ab initio.

Arbitration - Topic 5561

The award - Arriving at an award - Precedent - As a result of information received, the employer/Company searched the employee/grievor's lunchbox, and found five rolls of electrical tape - The grievor admitted, both before and after he had union representation, that the tape belonged to the Company - His employment was terminated - It was the Union's position that the Company breached Article 9.02 of the collective agreement (the right of representation) - The arbitrator upheld the termination of employment - The Manitoba Court of Queen's Bench upheld the arbitrator's decision - The Court agreed with the arbitrator's finding that the Company violated Article 9.02 - It was not unreasonable for the arbitrator to decide that the discipline imposed was merely voidable and not void ab initio - "[S]he decided to follow arbitration awards that held that a breach of a collective agreement does not automatically void discipline that has been imposed. Once the arbitrator had made that finding, there was ample evidence for her to find that the grievor had committed theft." - On two occasions after he had union representation the grievor had admitted that he had stolen the electrical tape - That evidence alone made it reasonable for the arbitrator to find that the grievor had committed theft - Once the arbitrator had made that determination, it was reasonable for her to find that she had no alternative but to uphold the dismissal - Theft was clearly defined as an intolerable offence in the collective agreement which resulted in automatic dismissal - See paragraphs 20 to 42.

Labour Law - Topic 6441

Industrial relations - Collective agreement - Interpretation - Breach and termination - Breach - What constitutes - [See Arbitration - Topic 5561 ].

Labour Law - Topic 6574

Industrial relations - Collective agreement - Interpretation - Discipline and dismissal of employees - What constitutes cause for dismissal - [See Arbitration - Topic 5561 ].

Labour Law - Topic 6588

Industrial relations - Collective agreement - Interpretation - Discipline and dismissal of employees - Employee's right to union representation - [See Arbitration - Topic 5561 ].

Labour Law - Topic 7044

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - Respecting remedies for breaches of collective agreement - [See Arbitration - Topic 5561 ].

Labour Law - Topic 7112

Industrial relations - Collective agreement - Enforcement - Arbitration - Judicial review - Scope of review - [See Arbitration - Topic 5561 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 16].

Winnipeg Airports Authority Inc. v. Public Service Alliance of Canada et al. (2015), 314 Man.R.(2d) 200; 2015 MBQB 6, revd. (2015), 323 Man.R.(2d) 126; 657 W.A.C. 126; 2015 MBCA 94, refd to. [para. 17].

New Flyer Industries Ltd. v. CAW-Canada, Local 3003, [1998] M.G.A.D. No. 1; 71 L.A.C.(4th) 425 (Man.), refd to. [para. 21].

Health Sciences Centre v. Canadian Union of Public Employees, Local 1550, [2012] M.G.A.D. No. 23; 2012 CanLII 97762 (Man.), refd to. [para. 23].

Hamilton Health Sciences v. Ontario Nurses' Association, 2010 CanLII 35848 (Ont.), refd to. [para. 34].

Winpak Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 830, [2012] M.G.A.D. No. 30; 2012 CanLII 97754 (Man.), refd to. [para. 34].

Counsel:

Garth H. Smorang, Q.C., for the applicant;

Kristin L. Gibson, for the respondent.

This application was heard before Abra, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment and reasons, dated January 14, 2016.