Alberta Union of Provincial Employees v. Alberta, (2010) 482 A.R. 292 (CA)

AUPE v. Alta. (2010), 482 A.R. 292 (CA);

      490 W.A.C. 292

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.043

Alberta Union of Provincial Employees (respondent/applicant) v. Her Majesty the Queen in Right of Alberta (appellant/respondent)

(0903-0194-AC; 2010 ABCA 216)

Indexed As: Alberta Union of Provincial Employees v. Alberta

Alberta Court of Appeal

Slatter, Rowbotham and Bielby, JJ.A.

July 7, 2010.

Summary:

An employee of the Alberta Public Service created a number of internet blogs that contained an online personal diary. The blogs contained, inter alia, postings about the employee's workplace, which included unflattering comments about some of her supervisors and co-workers. The employee was called to a meeting with management representatives and confronted about the blog postings. At the end of the meeting, the employee was given a letter of dismissal and escorted from the building. The union grieved the dismissal. A majority of an Arbitration Board upheld the dismissal. The union sought judicial review.

The Alberta Court of Queen's Bench, in a decision reported at 473 A.R. 151, allowed the application, set aside the majority's decision and referred the matter back to the Arbitration Board for consideration, having regard to the court's findings. The employer appealed.

The Alberta Court of Appeal, Slatter, J.A., dissenting, dismissed the appeal.

Labour Law - Topic 9150.1

Public service labour relations - Discipline and dismissal of civil or public servants - Notice of nature of meeting - An employee of the Alberta Public Service was called into a meeting and confronted about her postings on internet blogs in which she made unflattering comments about some of her supervisors and co-workers - The employee was not advised of the meeting until just before it occurred and was not told the purpose of the meeting - During the meeting, the employee asked on several occasions whether the meeting was disciplinary in nature, but received no response - The employee was not advised during the meeting that she had the right to union representation of her choice - The employer had arranged for a union liaison to be present but she was not aware that the meeting could result in disciplinary action - The employee testified, if she had known the nature of the meeting, she would have chosen her regular union steward to be present - At the end of the meeting, the employee was given a letter of dismissal and escorted from the building - Article 28.02 of the collective agreement provided that "An Employee who is to be interviewed with respect to disciplinary action ... shall be notified of the time and place of the interview and if desired by the Employee he may arrange to be accompanied by a Union Representative or Union Steward." - The union grieved the dismissal - A majority of an Arbitration Board upheld the dismissal, concluding that irregularities in the termination process did not amount to a substantive breach - The primary purpose of the notice requirement in art. 28.02 was to ensure access to union representation, which the employee had - An application judge allowed the employee's judicial review application - The application judge held that art. 28.02 had a twofold purpose of notice and representation and the employer breached the clause by failing to provide the employee with notice of the meeting and access to the union representative of her choice - The attendance by a union representative did not "save" the breach, as the representative was unaware of the disciplinary nature of the meeting and had no meaningful chance to consult with the employee - The Alberta Court of Appeal dismissed the employer's appeal - The employee was thus deprived of any meaningful resort to art. 28.02 - To conclude otherwise was not acceptable, rational or defensible - See paragraph 14.

Labour Law - Topic 9150.1

Public service labour relations - Discipline and dismissal of civil or public servants - Notice of nature of meeting - An employee of the Alberta Public Service was called into a meeting and confronted about her postings on internet blogs in which she made unflattering comments about some of her supervisors and co-workers - The employee was not advised of the meeting until just before it occurred and was not told the purpose of the meeting - During the meeting, the employee asked on several occasions whether the meeting was disciplinary in nature, but received no response - The employee was not advised during the meeting that she had the right to union representation of her choice - The employer had arranged for a union liaison to be present but she was not aware that the meeting could result in disciplinary action, thought it was simply investigatory and testified that she felt "blind-sided" - The employee testified, if she had known the nature of the meeting, she would have chosen her regular union steward to be present - At the end of the meeting, the employee was given a letter of dismissal and escorted from the building - Article 28.02 of the collective agreement provided that "An Employee who is to be interviewed with respect to disciplinary action ... shall be notified of the time and place of the interview and if desired by the Employee he may arrange to be accompanied by a Union Representative or Union Steward." - The union grieved the dismissal - A majority of an Arbitration Board upheld the dismissal, concluding, inter alia, that the presence of the union representative amounted to a waiver of the employer's breaches of art. 28.02 - An application judge allowed the employee's judicial review application - The Alberta Court of Appeal held that the application judge was correct in determining that it was unreasonable for the Board to conclude that the presence of the union representative amounted to a waiver of the employer's breaches of art. 28.02 - A waiver had to be fully informed and unequivocally made - The employee was not made aware of the disciplinary meeting, and therefore could not have known of her entitlement to have a union representative of her choice in attendance - It was thus unreasonable to conclude that she could have waived in any way the protection granted to her pursuant to art. 28.02 - See paragraph 15.

Labour Law - Topic 9150.1

Public service labour relations - Discipline and dismissal of civil or public servants - Notice of nature of meeting - An employee of the Alberta Public Service was called into a meeting and confronted about her postings on internet blogs in which she made unflattering comments about some of her supervisors and co-workers - The employee was not advised of the meeting until just before it occurred and was not told the purpose of the meeting - During the meeting, the employee asked on several occasions whether the meeting was disciplinary in nature, but received no response - The employee was not advised during the meeting that she had the right to union representation of her choice - The employer had arranged for a union liaison to be present but she was not aware that the meeting could result in disciplinary action - The employee testified, if she had known the nature of the meeting, she would have chosen her regular union steward to be present - At the end of the meeting, the employee was given a letter of dismissal and escorted from the building - Article 28.02 of the collective agreement provided that "An Employee who is to be interviewed with respect to disciplinary action ... shall be notified of the time and place of the interview and if desired by the Employee he may arrange to be accompanied by a Union Representative or Union Steward." - The union grieved the dismissal - A majority of an Arbitration Board upheld the dismissal, concluding, inter alia, that even if art. 28.02 had been complied with, the employee's response and the result (dismissal) would have been the same - An application judge allowed the employee's judicial review application - The employer appealed, arguing that the application judge did not give sufficient deference to the Board's conclusion that the employee's response would not have been any different had art. 28.02 been complied with - The Alberta Court of Appeal rejected the argument - The Board's failure to appreciate the significance of the breach unduly coloured its understanding of the potential impact such a breach might have had on the employee's conduct, and affected its ability to draw reasonable inferences with respect to what might have happened at the meeting and thereafter - The employee was not afforded the opportunity for advice and sober second thought at the outset - To assume that this did not affect her demeanour throughout the proceeding, including at the arbitration hearing itself, was unreasonable - See paragraphs 16 to 18.

Labour Law - Topic 9150.2

Public service labour relations - Discipline and dismissal of civil or public servants - Right to union representation (incl. right to be advised of) - [See all Labour Law - Topic 9150.1 ].

Labour Law - Topic 9163

Public service labour relations - Discipline and dismissal of civil or public servants - Notice of discipline or dismissal (incl. time for) - [See all Labour Law - Topic 9150.1 ].

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - An employee of the Alberta Public Service was terminated - The union grieved - The central issue was whether the employer had complied with article 28.02 of the collective agreement which provided that "An Employee who is to be interviewed with respect to disciplinary action ... shall be notified of the time and place of the interview and if desired by the Employee he may arrange to be accompanied by a Union Representative or Union Steward." - A majority of an Arbitration Board upheld the dismissal - An application judge allowed the employee's judicial review application - The employer appealed, arguing that the application judge substituted his own interpretation of art. 28.02, as well as his own reasoning and interpretation of the evidence and thus applied a de facto correctness test - The Alberta Court of Appeal held that the application judge identified and applied the proper standard of review of reasonableness - Although some of the language he employed might be suggestive of a substitution of his own view for that of the Board's, he did not rewrite the collective agreement or interject his own views of the evidence - Read as a whole, it was clear that the reviewing judge applied the reasonableness standard to the Board's award - See paragraphs 11 to 13.

Labour Law - Topic 9521

Public service labour relations - Collective agreement - Discipline and dismissal - General - [See all Labour Law - Topic 9150.1 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 10, 26].

Voice Construction Ltd. v. Construction and General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 11].

Alberta v. Alberta Union of Provincial Employees (2008), 433 A.R. 159; 429 W.A.C. 159; 2008 ABCA 258, refd to. [para. 11].

Greyhound Lines of Canada Ltd. v. Amalgamated Transit Union, Local 1374, [1991] C.L.A.D. No. 25; 22 L.A.C.(4th) 291(Can. Arb. Bd.), refd to. [para. 14].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 27].

Ridge v. Baldwin, [1964] A.C. 40; [1963] 2 All E.R. 66 (H.L.), refd to. [para. 28].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 28].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 28].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 37].

R. v. Dubois, [1980] 2 S.C.R. 21; 32 N.R. 176; 23 A.R. 116, affing. (1979), 17 A.R. 541; 49 C.C.C.(2d) 501 (C.A.), refd to. [para. 38].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193; 22 O.R.(3d) 514 (C.A.), refd to. [para. 38].

R. v. Martin (G.W.) (2010), 361 N.B.R.(2d) 251; 931 A.P.R. 251; 2010 NBCA 41, refd to. [para. 38].

Caswell v. Powell Duffy Associated Collieries Ltd., [1940] A.C. 152 (H.L.), refd to. [para. 38].

Kerr v. Ayr Steam Shipping Co., [1915] A.C. 217, refd to. [para. 38].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 40].

Rainbow Industrial Caterers Ltd. et al. v. Canadian National Railway Co. et al., [1991] 3 S.C.R. 3; 126 N.R. 354; 3 B.C.A.C. 1; 7 W.A.C. 1, refd to. [para. 41].

Prenor Trust Co. of Canada v. Nunn (1998), 214 A.R. 1; 58 Alta. L.R.(3d) 68 (Q.B.), refd to. [para. 41].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185; 148 D.L.R.(4th) 48, refd to. [para. 42].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 47].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 49].

Counsel:

S.P. McManus, for the respondent;

W.J. Pavlic, Q.C., for the appellant.

This appeal was heard on May 26, 2010, before Slatter, Rowbotham and Bielby, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed on July 7, 2010, including the following opinions:

Rowbotham and Beilby, JJ.A. (concurring) - see paragraphs 1 to 19;

Slatter, J.A., dissenting - see paragraphs 20 to 54.