Since our case law update last month, we continue to see important workplace investigation issues arise at labour arbitration cases in BC. We even saw that one of the cases mentioned in our last update was reconsidered, and affirmed.
Here are two noteworthy workplace investigation-related cases from BC in October. Both of them relate to the issue of dishonesty in interviews that are conducted as part of workplace investigations.
In United Food and Commercial Workers Union, Local 247 v 8424365 Canada Limited (“UFCW”), the BC Labour Relations Board offered some guidance on the responsibilities of union representatives in workplace investigations.
The grievor was a clerk at a franchise of Your Independent Grocer Store. He accused his union of breaching its duty of fair representation in part because his union representative failed to speak with him prior to a disciplinary meeting as part of an investigation into the clerk’s misconduct, and therefore could not have been aware of the relevant information necessary to properly represent him.
The clerk was alleged to have sworn and threatened his colleague with a physical fight. Most of it was caught on video surveillance. The clerk contacted the union representative and asked him to attend the disciplinary meeting. The union representative reviewed the video footage, as well as statements from the colleagues involved in the incident, but did not speak to the clerk before the meeting. At that meeting, the clerk denied all wrongdoing. After the meeting, when the union representative explained that he had seen the video footage, the clerk admitted that he had sworn at his colleagues. The union representative brought the clerk back to the meeting and told the employer that the clerk had confessed. The clerk was then terminated.
Although he was reinstated, the union representative’s failure to get the clerk’s “side of the story” was the chief complaint. But the Arbitrator assessed the union representative’s duty of representation on the basis of all aspects of his participation in the investigation. She found that although the union representative failed to speak with the clerk prior to the meeting, he fulfilled his duty of fair representation by discussing the issue with the grievor’s co-workers, and by reviewing video surveillance and statements.
While this finding is a reasonable way of assessing a union representative’s participation in an investigation, it is troubling insofar as it fails to comment on the quality of the union representative’s advocacy. Had the union representative spoken to the clerk in advance of the meeting, he could have explained the importance of honesty in the context of an investigation. Instead, the clerk exacerbated his misconduct by denying it in the face of overwhelming evidence against him. It is possible that such advice could have allayed the clerk’s notice of termination at the end of the meeting.
The labour arbitration case, Fraser Health Authority and BCNU (Gaucher), deals with the very same issue that the clerk faced at his meeting in the UFCW case. It considered whether discipline against an employee for dishonesty in the course of a workplace investigation was warranted.
The grievor, a nurse, was suspended for four days after an investigation determined that she breached a patient’s privacy. The employer’s discipline was based on the breach of privacy and the nurse’s dishonesty in the investigation interview. According to the employer, the nurse displayed culpable behaviour during her interview when, prior to being provided with electronic records, she denied accessing the patient’s file beyond her initial access. When asked again if she had accessed the patient’s file, she stated “Not that I recall.” However, the records clearly showed that she had, in fact, repeatedly accessed the patient’s file after her initial access.
At the arbitration that resulted from her grieving the suspension, it was revealed that during the investigation interview, the nurse was not provided with the audit report which detailed the patient’s file accesses. She testified that seeing this report would have been helpful at the time in responding to the question of when she accessed the patient’s file. Under these circumstances, the Arbitrator determined that the nurse was not dishonest in her investigation interview, she simply did not have the appropriate information in front of her to accurately respond to the question. The suspension was reduced from four days to one.
This case demonstrates the procedural requirements that must be in place if an employer imposes discipline for dishonesty in the course of an investigation. An arbitrator will assess the nature of the information presented to the grievor in order to determine whether a grievor was dishonest – or ignorant – in the course of an investigation. While the first quality attracts discipline, the second does not. Instead of trying to compel someone to make an admission by withholding evidence, this case suggests that giving an employee every opportunity to “come clean” by clearly demonstrating the nature of their wrongdoing is of utmost importance.