Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.
on appeal from the court of appeal for quebec
Labour law ‑‑ Labour relations ‑‑ Arbitrator ‑‑ Jurisdiction ‑‑ Employee dismissed for absences due to alcoholism ‑‑ Employee's successful alcohol treatment undergone after dismissal relied upon by arbitrator to annul dismissal ‑‑ Whether arbitrator could in ruling on dismissal grievance consider evidence concerning events which occurred after employer's decision to dismiss employee.
A company dismissed one of its employees because he had a serious alcohol problem which caused him to miss work repeatedly. On several occasions, sanctions had been reduced in exchange for promises by the employee that he would seek treatment for his problem. He never did. Following the dismissal, the union filed a grievance pursuant to the collective agreement, and the employee underwent a treatment program for alcoholism. The arbitrator found that the company had been justified in dismissing its employee at the time it had done so but that, in light of the subsequent successful treatment, it would be appropriate to annul his dismissal and order his reinstatement. The Superior Court granted the company's motion in evocation and quashed the arbitrator's decision. The majority of the Court of Appeal allowed the union's appeal and restored the arbitrator's decision.
Held: The appeal should be allowed.
The arbitrator in this case exceeded his jurisdiction in relying on subsequent‑event evidence as grounds for annulling the dismissal. In reviewing the company's decision to dismiss an employee, an arbitrator is required to determine whether or not the company had "just and sufficient cause" for dismissing the employee at the time that it did so. In his ruling, the arbitrator can rely on subsequent‑event evidence but only where it is relevant to the issue before him, i.e., where such evidence helps to shed light on the reasonableness and appropriateness of the dismissal at the time that it was implemented. Where, as here, the arbitrator concludes that the dismissal was justified at the time, he cannot, without exceeding his jurisdiction, then annul it on the sole ground that subsequent events render such an annulment fair and equitable. The arbitrator had no jurisdiction to provide the employee with one last chance, in effect imposing on the company an obligation not found in the collective agreement to rehire an employee who successfully undergoes an alcohol treatment program after being justly dismissed as a result of an alcohol problem.
Cases Cited
Referred to: Commission scolaire de Sept-Îles v. Morin (1993), 59 Q.A.C. 194.
Statutes and Regulations Cited
Labour Code, R.S.Q., c. C‑27, ss. 101 [am. 1983, c. 22, s. 77], 139 [repl. 1982, c. 16, s. 5; am. 1983, c. 22, s. 93; am. 1985, c. 12, s. 93; am. 1990, c. 4, s. 232], 139.1 [ad. 1982, c. 16, s. 6].
APPEAL from a judgment of the Quebec Court of Appeal (1993), 59 Q.A.C. 208, setting aside a judgment of the Superior Court, D.T.E. 91T‑1036, allowing the appellant's motion in evocation with respect to an arbitrator's decision, [1991] T.A. 541. Appeal allowed.
Claude Larose, for the appellant.
Laurent Roy, for the respondent.
The judgment of the Court was delivered by
1 L'Heureux-Dubé J. -- This case raises the issue of the jurisdiction of a labour arbitrator under a collective agreement. More particularly, can an arbitrator, in ruling on a grievance regarding the dismissal of an employee, consider evidence concerning events which occurred subsequent to the decision by the employer to dismiss the employee ("subsequent-event evidence")?
I. Facts and Proceedings
2 The appellant, the Compagnie minière Québec Cartier (the "Company"), is a mining company operating in the province of Quebec. The respondent, United Steelworkers of America, Local 6869 (the "Union"), is a labour union representing the Company's employees.
3 On May 16, 1990, the Company dismissed one of its employees, Harold Beaudin. At the time, Mr. Beaudin had a serious alcohol problem which caused him to repeatedly miss work. Specifically, during the period from April 2, 1987 to February 16, 1990, Mr. Beaudin was late for work twice, and missed work, without authorization or justification, eleven times. Each such incident was met with disciplinary sanctions. On several occasions, these sanctions were subsequently reduced in exchange for promises by Mr. Beaudin that he would seek treatment for his alcohol problem. Nonetheless, Mr. Beaudin consistently failed to seek such treatment. As a result, when Mr. Beaudin failed to report for work on February 16, 1990, the Company's initial response was to dismiss him. However, this decision was subsequently rescinded, once again on the condition that Mr. Beaudin submit to a treatment program. To this end, Mr. Beaudin was granted a leave of absence from work. During the course of this leave he was eligible for [translation] "wage insurance" under the collective agreement. Nonetheless, despite his promise and the granting of a temporary leave, Mr. Beaudin did not undergo a treatment program. Instead, he returned to work on April 25, 1990, and seventeen days later, on May 11, 1990, once again missed work without authorization as a result of his alcohol problem. At this point, the Company decided, once and for all, to dismiss Mr. Beaudin. In response to this decision, a grievance was filed by the Union on behalf of Mr. Beaudin.
4 In September 1990, several months after having been dismissed and prior to an arbitrator having heard the grievance, Mr. Beaudin underwent a 20-day treatment program for alcoholism. Apparently, this program was successful and Mr. Beaudin fully recovered from his alcohol problem.
5 On April 2, 1991, Mr. Lippé, the arbitrator appointed to hear the grievance regarding Mr. Beaudin's dismissal, handed down his ruling: [1991] T.A. 541. The arbitrator found that the Company had been justified in dismissing Mr. Beaudin at the time it had done so but that, in light of the subsequent successful treatment of Mr. Beaudin's alcohol problem, it would be appropriate to annul his dismissal and order his reintegration into the Company. Specifically, the arbitrator stated (at pp. 552-53):
[translation] At the time the company dismissed Mr. Beaudin, I am of the view that it could have seemed justified in doing so.
Since then the circumstances have changed, however, in that the complainant has undergone an alcohol treatment program, which was successful. These subsequent facts thus allow the arbitrator to intervene to alter the dismissal imposed by the company, since chances are that from now on Mr. Beaudin will be able to adequately fulfil his workplace duties, and in doing so I rely on the opinions of certain arbitrators and writers cited above.
For these reasons, I allow in part Mr. Beaudin's grievance; I quash for all legal purposes the dismissal imposed on him by the company on May 16, 1990 and I replace it with a suspension without pay from the date of the dismissal to the date of Mr. Beaudin's return to work, which shall be within twenty (20) days of the date of this decision, with no retroactivity whatsoever but with continuance of seniority.
I would like the complainant to understand that this is his last chance and that he would be liable to be dismissed on the spot if he is again absent owing to his alcoholism problem. [Emphasis added.]
6 The Company applied to the Quebec Superior Court for judicial review of the arbitrator's decision. Pidgeon J. granted this application and quashed the decision of the arbitrator: D.T.E. 91T-1036. The Union then appealed to the Quebec Court of Appeal, a majority of which (Gendreau J.A., dissenting) allowed the appeal and restored the decision of the arbitrator: (1993), 59 Q.A.C. 208. It is from this decision that the Company appeals to this Court.
7 The principal issue raised by this case is whether the arbitration decision should be quashed on the grounds that the arbitrator considered subsequent-event evidence in reaching his conclusion that the grievance should be allowed and Mr. Beaudin's dismissal annulled.
II. Analysis
8 Labour arbitrators and arbitration boards operating under Quebec law are specialized tribunals whose decisions are protected from judicial review by a series of privative clauses:
Labour Code, R.S.Q., c. C-27
101. The arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned. . . .
139. Except on a question of jurisdiction and except when the Court is sitting in penal matters, no extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure (chapter C-25) shall be exercised and no injunction granted against an arbitrator, the Conseil des services essentiels, a certification agent, a labour commissioner or the Court acting in their official capacities.
139.1 Except on a question of jurisdiction, article 33 of the Code of Civil Procedure (chapter C-25) does not apply to any person, body or agency mentioned in section 139 acting in their official capacities.
Accordingly, such arbitrators and arbitration boards are entitled to curial deference with respect to decisions made within their area of jurisdiction. However, where such arbitrators or arbitration boards exceed or act outside their area of jurisdiction, they are no longer entitled to curial deference.
9 In the case at hand, the arbitrator in question, Mr. Lippé, was reviewing a decision by the Company to dismiss an employee, Harold Beaudin. This issue came before the arbitrator in accordance with the grievance procedures in the collective agreement between the Company and the Union.
10 Under the terms of the collective agreement between the Company and the Union, the Union is permitted to grieve any decision by the Company to dismiss an employee, and such a grievance, if not otherwise settled, is to be resolved through binding arbitration. Where such a grievance proceeds to binding arbitration, as it did in the case at hand, the mandate of the arbitrator, pursuant to art. 10.01 of the collective agreement, is to determine whether or not the Company had "just and sufficient cause" for dismissing the employee in question. Article 10.01 of the collective agreement provides that:
[translation] 10.01 In the event that an employee is dismissed and considers that he was not dismissed for just and sufficient cause, the case may be filed as a grievance in the manner described below. [Emphasis added.]
11 The collective agreement, however, does not define the term "just and sufficient cause". Accordingly, in reviewing a decision by the Company to dismiss an employee, an arbitrator has broad jurisdiction to establish criteria for assessing whether or not a "just and sufficient cause" for dismissal has been made out. As well, the arbitrator has broad jurisdiction to consider any evidence which he considers relevant to the issue before him. However, ultimately, the arbitrator's jurisdiction is limited in that he is required to address the specific issue before him: whether or not the decision to dismiss the employee in question was justified. In particular, the arbitrator is required to determine whether or not the Company had just and sufficient cause for dismissing the employee as at the time when the employee was actually dismissed.
12 As a general rule, an arbitrator reviewing a decision by the Company to dismiss an employee should uphold the dismissal where he is satisfied that the Company had just and sufficient cause for dismissing the employee at the time that it did so. On the other hand, the arbitrator should annul the dismissal where he finds that the Company did not have just and sufficient cause for dismissing the employee at the time that it did so. The peculiarities of alcoholism do not justify departing from this rule. In the Court of Appeal, Moisan J. (ad hoc), by referring to his opinion in Commission scolaire de Sept-Îles v. Morin (1993), 59 Q.A.C. 194, in which he reviewed the case law, suggested that alcoholism must be envisaged as an illness, and that the absenteeism it likely will entail must be treated as being innocent. Consequently, according to Moisan J., in reviewing a decision by an employer to dismiss an alcoholic employee for chronic absenteeism, the determination of whether or not just and sufficient cause has been established should be made by considering both whether the employee's ability to fulfil his workplace duties was impaired by his alcohol problem and whether any improvement in this respect was likely in the foreseeable future. Such an analysis, if performed as at the time the employee was dismissed, is reasonable and is entirely within the jurisdiction of the arbitrator. In this case, the Company passed this test. In this respect, I note that the arbitrator found that the Company was justified in dismissing Mr. Beaudin at the time that it did so.
13 This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, 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. Accordingly, once an arbitrator concludes that a decision by the Company to dismiss an employee was justified at the time that it was made, he cannot then annul the dismissal on the sole ground that subsequent events render such an annulment, in the opinion of the arbitrator, fair and equitable. In these circumstances, an arbitrator would be exceeding his jurisdiction if he relied on subsequent-event evidence as grounds for annulling the dismissal. To hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator. Furthermore, it would lead to the absurd conclusion that a decision by the Company to dismiss an alcoholic employee could be overturned whenever that employee, as a result of the shock of being dismissed, decides to rehabilitate himself, even if such rehabilitation would never have occurred absent the decision to dismiss the employee.
14 In light of the above, I conclude that, in the case at hand, the arbitrator exceeded his jurisdiction in overturning the decision of the Company to dismiss Mr. Beaudin. As I noted earlier, it is apparent from the arbitrator's reasons in the case at hand that he felt that the decision of the Company to dismiss Mr. Beaudin was justified at the time that the decision was made. Nonetheless, despite this conclusion, the arbitrator went on to overturn the dismissal on the grounds that subsequent-event evidence indicated that Mr. Beaudin had been cured of his alcohol problem and had become capable of fulfilling his employment obligations to the Company. Accordingly, the arbitrator decided to give Mr. Beaudin one last chance and to reinstate him to his job. However, such a decision was beyond the jurisdiction of the arbitrator. If the dismissal was justified at the time it was implemented, the arbitrator had no jurisdiction to provide Mr. Beaudin with such a last chance. There is no provision in Quebec labour law or in the collective agreement between the Company and the Union which would permit a labour arbitrator to overturn a decision by the Company to dismiss an employee notwithstanding the fact that the Company demonstrated just cause for the dismissal.
15 In this respect, I also agree with Gendreau J.A., dissenting at the Court of Appeal, that the effect of the arbitrator's decision in the case at hand was to impose an obligation on the employer not found in the collective agreement. Specifically, Gendreau J.A. stated (at p. 212):
[translation] Accordingly, without saying so expressly, the arbitrator created and imposed on the respondent an obligation which it had not accepted and which could be stated as follows: the employer has an obligation to take back an alcoholic employee who was dismissed on sufficient grounds and was given every reasonable chance of rehabilitation, and who decided upon and undertook, after his departure but before the grievance was heard, an alcohol treatment program which appears at the time the case is decided to have been successful. The formulation of such an obligation for the employer and of an equivalent right for the employee is, in my opinion and with the greatest respect, adding something to the collective agreement, which grievance arbitrators may not do.
16 Having reached the conclusion that the arbitrator in this case exceeded his jurisdiction, the issue of whether or not the arbitrator's decision was patently unreasonable, which was also argued before us, does not arise.
III. Disposition
17 For the reasons outlined above, I would allow this appeal, set aside the decision of the Court of Appeal and restore the decision of the Superior Court setting aside the arbitrator's decision, the whole without costs.
Appeal allowed.
Solicitors for the appellant: Lavery, de Billy, Québec.
Solicitors for the respondent: Trudel, Nadeau, Lesage, Larivière & Associés, Montreal.
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