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Planned Poisoning isn’t just cause after all

Employers reading this column in April, 2005 may have discovered grounds for optimism that the concept of just cause wasn't dead. That was when I originally wrote about the dismissal of a C.B.C. employee who sent tainted chocolates to a critic.
  
That case involved a C.B.C. reporter who had something of an ongoing battle with the head of a political lobby group. The reporter had broadcast a news report relating to the lobby group. As a result, the head of the lobby group spoke critically of the reporter in the community and filed a complaint to the C.B.C. about the news report.
  
The reporter understood he had been called a "toady" of the government and that his ability to function as a journalist had been publicly questioned. Initially, the reporter considered launching a defamation action against the head of the lobby group but was advised against such an action.
  
Instead, he formulated a plan to get back at his critic by anonymously sending him a box of chocolates on which he first planned to spit. As if that wasn't bad enough, the reporter also dumped the chocolates on his dirty kitchen floor and then rubbed some of them in thawed, raw chicken. The reporter re-packaged the chocolates and sent them off to his critic.
  
The reporter, however, had second thoughts about the scheme and revealed it to his critic before the chocolates were consumed. The police were contacted and the C.B.C. was informed of the reporter's actions as well. The C.B.C. dismissed the reporter for just cause based on his gross misconduct.
  
The reporter's union representatives grieved the dismissal and an arbitrator determined the C.B.C. did not have reasonable grounds to dismiss the reporter. His  employment was reinstated (with a three month suspension substituted) and he was ordered to attend anger management counselling.
  
The C.B.C. appealed the arbitrator's decision to the B.C. Supreme Court which overturned the arbitrator's award and upheld the dismissal on just cause grounds. The Court determined that the arbitrator's decision to reinstate the reporter was patently unreasonable - the credibility of the C.B.C. and of the reporter as a newscaster had been seriously undermined by his biased conduct against the lobby group.
  
The Court described the reporter's conduct as a vengeful act intended to personally harm the critic. It determined his conduct went to the heart of his credibility as a reporter which was irrevocably damaged (as was the public's trust in him).
  
Now, the matter has been reviewed once again, this time by the B.C. Court of Appeal. And, this seesaw battle has now pitched back in the union's favour again.
  
The Court of Appeal determined that the arbitrator's original decision (to reinstate the reporter to his employment) was not patently unreasonable. The Court invoked the rule that the decisions of specialist adjudicators, such as labour arbitrators, should be given deference. Matters of discipline are particularly within the area of expertise for which deference should be shown.
  
That, of course, is a necessary rule. Labour arbitrators develop a special expertise for resolving disputes in the labour relations context. It is critical, for the efficient working of the grievance and arbitration structure, that courts allow arbitrators the discretion to make these difficult decisions. This is one instance, however, when
many employers will be wondering just what it takes to satisfy the just cause standard.  
  
There is no doubt that when the just cause argument is based on a single incident of misconduct, the employer's task is significantly more difficult. A truly egregious act of misconduct is required to meet the high standard of just cause. However, many people (employers and employees alike) would believe that sending a box of tainted chocolates to an intended victim meets that standard even when the sender abandons the plan at the last minute. 
  
This case may yet find its way to the Supreme Court of Canada. If it does, employers will be hoping our highest court's appetite for tainted chocolates is as limited as their own.