- May 24, 2021
- Miscellaneous
The Union Grieved the termination of Amanda Bronswyk, a 1st Assistant accountant who was terminated for violating the Employer’s confidentiality policy by disclosing to the Union a privileged email received by the accounting department. The Employer raised a preliminary issue that the grievance was inarbitrable because the Grievor was not an “employee” as defined under the B.C. Labour Relations Code or the Master Agreement between the parties. The Employer argued that the Grievor was not an employee because (1) she was acting in a confidential capacity for the Employer (due to the fact that she had access to confidential emails), and/or (2) because her termination was effected after the completion of the project during which the email disclosure giving rise to her termination occurred. Arbitrator Ready denied the Employer’s preliminary issue, finding that the grievance was arbitrable because the Grievor was an employee at the time of the email disclosure giving rise to her termination. Considering the merits of the grievance, the Arbitrator found that there was no just cause to terminate the Grievor, in light of the evidence that someone other than Bronswyk had disclosed the privileged email to the Union.
The Arbitrator awarded the Grievor $30,000 in mental distress damages flowing from the Employer’s hasty issuing of a termination letter which besmirched Bronswyk’s integrity as a 1st Assistant accountant, on the basis of its inaccurate assumption (and without a proper investigation into the incident) that Bronswyk violated the employer’s confidentiality policy. Arbitrator Ready concluded on the authority of Greater Toronto Airports Authority and Public Service Alliance Canada, Local 0004, 191 L.A.C. (4th) 277 (Arbitrator Shime), and arbitral law in B.C. generally, that an arbitrator has authority to award mental distress damages where the Employer’s conduct that violated the collective agreement caused “additional distress and discomfort” to the Grievor; in this case the additional stress and discomfort resulted from the Employer attacking the Grievor’s reputation at the time of her dismissal. (Note that the Arbitrator’s conclusion regarding his jurisdiction to award mental distress damages is questionable, as there are currently few decisions supporting this proposition.) $28,126.49 was additionally awarded for lost wages the Grievor was denied the opportunity to earn because she was not hired to work on two projects that had been completed since her termination.