In a rather surprising decision[1], Québec arbitrator Jean Ménard admitted after acquired cause as evidence to justify an initial disciplinary measure.

In this case, two employees had an altercation on the workplace premises concerning the affairs of a local Union. The altercation was instigated and heated by Mr. Hogue, who told Mr. Vadnais“If I did not restrain myself, I would punch you in the face. I am not going to get you here, but I will get you outside” (our translation).

Because of the incident, Mr. Hogue received a 5 day suspension, to which he responded with a grievance.

Some time after the suspension was imposed, the griever was elected president of the local Unionat a general assembly. During this same assembly, he told Mr. Vadnais he would not help him should he have difficulties with the employer. Moreover, and shortly after the assembly, the griever warned the employer’s HR Director that Mr. Vadnais would be evicted from the Union if he came and testified before the arbitrator.

The arbitrator was required to decide whether events subsequent to a disciplinary measure can be admitted to evaluate the reasonableness of such measure.

In this case, he found that the above incidents were relevant as they helped clarifying whether the measure taken by the employer was reasonable and appropriate at the time it was imposed. Not only did the subsequent incidents constitute a repetition or continuation of the threats plaintiff initially directed towards the employee, but they helped appreciating Mr. Hogue’s credibility.

The arbitrator admitted the subsequent events as evidence and refused to intervene to alleviate the disciplinary measure imposed upon Mr. Hogue.

Interestingly, this case may be seen to broaden the strict standard established by the Supreme Court of Canada in 1995[2], whereby “ an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented”.