- May 25, 2021
- Collective Agreement Interpretation
Date of Award: November 30, 2012
Arbitrator: Michael Flemming
The Grievor was employed in film and television for 23 years. Most recently, she was employed with Warner Bros. Television (B.C.) Inc. (“WBTV”) for 6 ½ years as the Costume Designer with Supernatural 5 Films Inc. (the “Production”). The Grievor was known as being a tough boss but no complaints were made against her for the first 6 years of her employment on the Production.
In 2011, a subordinate member of the Costume Design team brought a complaint against the Grievor for aggressive behavior and claimed that the Grievor called the complainant a “bitch” and told her if she wanted to leave that the “door is that way”. In 2012, another complaint was made by a different member of the Costume Design team that the Grievor grabbed her arm so tightly that red marks appeared. WBTV began an investigation into the Grievor and many more complaints of derogatory and demeaning remarks came to light as well as accusations that the Grievor took costumes from the Production for personal use.
WBTV dismissed the Grievor from the Production and within the letter of dismissal included a “no-hire” provision for other WBTV productions. The Grievor grieved the dismissal and the “no-hire” provision. The Arbitrator adopted three questions from prior case law which must be examined when determining if disciplinary action was justified: 1) Has the grievor been given just and reasonable cause for some form of discipline by the Employer? 2) If so, was the discipline imposed an excessive response under all the circumstances of the case? 3) If so, what alternative measures should be substituted as just and equitable under the circumstances?
The Arbitrator determined that there was not sufficient evidence to find that the Grievor used property of the Production for her own private purposes. However, the Arbitrator accepted the evidence of the various complainants that the Grievor engaged in derogatory, inappropriate or demeaning remarks that were contrary to the WBTV’s harassment policy. Additionally, the Arbirtator found that the Grievor grabbed a subordinate’s arm and deemed the incident worthy of discipline. Due to the factual findings, the Arbitrator determined that the Employer had established that the Employer had just and reasonable cause to impose some form of discipline.
In considering whether the response to behavior was excessive, the Arbitrator weighed the Grievor’s history in the film industry and her 6 ½ years on the Production. The Arbitrator noted the Grievor’s excellent reputation of competence and the intense atmosphere of the film industry that may result in harsh conduct. The Arbitrator determined that there was not any one incident that would justify termination of employment without progressive discipline and prior warning.
While the discipline was excessive, the Arbitrator thought that it would be harmful to the workplace atmosphere to reinstate the Grievor and instead held that the parties were encouraged to discuss possible terms and conditions under which the Grievor would be entitled to work on future WBTV productions. The Arbitrator found that back pay was not warranted in the circumstances.