On February 6th, 2014, the Superior Court allowed the application for judicial review of an arbitration award having accepted an employee's grievance following his dismissal.

In this case, an intoxicated employee caused an accident while driving a forklift. Following this event, the employer wishes to dismiss him for violating a policy of the company as well as for endangering his safety and that of his colleagues. However, the employer decides to enter into a “last chance” agreement that allows the employee to keep his job on the condition that he completes a closed therapy. Shortly after starting the therapy as agreed, the employee abandons it and chooses instead to undergo an external treatment as an outpatient. The employer then decides to dismiss the employee on the grounds of non-compliance with the agreement.

The Arbitrator

The arbitrator recognizes that the actions of the employee constituted a serious and willful misconduct. However, the arbitrator, taking into account the efforts and motivation demonstrated by the employee and the choice of the employer to give him another chance, finds that the employer failed to exhaust all available means to ensure the rehabilitation of the employee.

The arbitrator concludes that the dismissal was a disproportionate sanction for the non-compliance with the agreement and replaces the dismissal with a six-month suspension.

The Superior Court

The Superior Court quashes the award, finding that the arbitrator exceeded his jurisdiction on several levels and committed unreasonable errors in his decision.

In particular, the Court emphasizes the failure of the arbitrator to consider the prior disciplinary record of the employee, who had been subject to a disciplinary suspension of ten days. Moreover, the judge notes that the powers of the arbitrator regarding last chance agreements are limited to verifying whether the dismissal is actually the result of a non- compliance with a condition specified therein. Thus, the arbitrator should not have modified the content of the agreement to provide an additional last chance to the employee and to decide that the dismissal was disproportionate. In addition, the arbitrator should not have given such weight to the evidence of the rehabilitation attempts by the employee, as it was an irrelevant subsequent event to the review of the appropriateness of the sanction imposed.

In sum, the judge is of opinion that it was "absurd" to conclude that a breach by the employee of the last chance agreement could excuse the serious and willful misconduct committed by the employee initially driving a forklift while intoxicated.

Please note that an application for leave to appeal was filed March 7, 2014 in this matter.