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SK court finds that deciding against arbitral consensus without adequate explanation is factor that spoke against reasonableness.

time theft
The Saskatchewan Court of Queen’s Bench found that deciding against arbitral consensus without adequate explanation was a factor that spoke against reasonableness.

The applicant applied for judicial review of the decision of an arbitration board appointed in accordance with a term in the collective agreement between it and the respondent union. The applicant had dismissed an employee from her employment as a supervisor at one of its gas station/convenience stores because she had committed “time theft” by intentionally falsifying time sheets, and claiming pay for time she had not worked. The grievor denied that she had closed the store early or had advised another employee to leave early too. Both employees had filed time sheets that indicated they had completed their shifts. The union filed a grievance on the grievor’s behalf. The board held a hearing, after which it overturned the dismissal and reinstated the grievor, subject to a four-month suspension without pay. At the hearing, the grievor continued to deny the infraction but eventually admitted that she had breached the policies of the applicant and had lied. The applicant argued since arbitral consensus dictates that because the presumptive penalty for theft of time is dismissal, the board was bound to follow it once it found that the grievor had committed the theft, unless there were mitigating facts that would justify a departure. The applicant argued that because the board had not found any mitigating facts, its decision to substitute a penalty other than dismissal was unreasonable. The respondent submitted that the board’s decision was reasonable, because it was clear, intelligible and transparent, and it fell within a range of possible, acceptable outcomes that were defensible in fact and law and was entitled to deference.

HELD: The application was granted and the board’s decision quashed. The standard of review was reasonableness. The court found that deciding against arbitral consensus without adequate explanation was a factor that spoke against reasonableness. The court held that the board’s decision was not reasonable because it found on the facts that there were no mitigating factors.


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