By Norman Keith, Lisa Cabel, and Joseph Cammalleri
An arbitrator upheld an employer’s decision to terminate a unionized airline pilot with 29 years of service for just cause, based on the grievor’s unsubstantiated allegations of bribery and corruption against his employer and union.
In addition, the arbitrator denied the grievor whistleblower protection, ruling that he failed in his obligation to act reasonably and in good faith. The decision provides helpful guidance for federally regulated employers in navigating circumstances where an employee brings forward a complaint, when whistleblower protection under the Canada Labour Code applies, what constitutes protected union activities, and when off-duty conduct may attract discipline.
Fundamentally, this decision reinforces an employer’s duty to conduct a thorough investigation to ensure that serious allegations of misconduct leveled against the company are substantiated — and to treat frivolous allegations as fundamental breaches of an employee’s obligations.
Background
Through text messages, various conversations with co-workers, and an email sent to at least 100 pilots, the grievor asserted that Jazz Aviation LP’s master executive committee was corrupt and had bribed union officials to ratify a memorandum of settlement. Additionally, the grievor alleged that union and Company officials were criminally embezzling money from a charity fund dedicated to helping children.
After a lengthy investigation, the Company concluded that there was no evidence to support these allegations and found the grievor to be evasive and dishonest during the investigation. The Company terminated his employment for cause and, at arbitration, argued that his actions — both at work and off-duty — had no evidentiary foundation, damaged the Company’s reputation, and created a toxic workplace.
The union argued that there was no just cause for termination and, in any case, that termination was excessive in the circumstances.
Decision and key takeaways
In a lengthy decision, Arbitrator Kaplan concluded that the Company had just cause to terminate the grievor. Summarizing his findings, he wrote:
One can readily conclude from the review of the evidence that the grievor engaged in serious misconduct—misconduct justifying termination. At work and away from work, the grievor repeatedly alleged that the Company was in cahoots with the union and was bribing union officials to obtain favorable collective bargaining results and a grievance settlement. There is absolutely no evidence whatsoever that there is any truth to these allegations. … The union filed hundreds of exhibits on the grievor’s behalf. Not even one of these documents provides any proof whatsoever to substantiate the grievor’s complaints.
No whistleblower protection
In response to a request for evidence to support his allegations—both during the investigation and the hearing—the grievor argued that his sole obligation was to bring forward his concerns and that he should therefore be afforded whistleblower protection under the Code.
The arbitrator disagreed, holding that the grievor had an obligation to act reasonably and in good faith.
While the Code does provide protection against retaliation for employees who make reports in good faith, bringing forth serious allegations of criminal behavior without any evidence was found to be inconsistent with acting reasonably and in good faith.
In addition, the arbitrator stated that the grievor’s primary duty was to bring his concerns to the Company first, in accordance with the Code — which he failed to do. As a result, the grievor was not afforded Code protection.
No protected union activities
The grievor argued that his actions were protected as union activities and therefore not subject to the Company’s disciplinary reach.
The arbitrator distinguished the grievor’s conduct from traditional “rough and tumble” union politics. He determined that the grievor’s insinuations and unsubstantiated allegations were not an attempt to promote transparency and accountability, but rather a calculated effort to damage the reputations of both the Company and the union.
Given the grievor’s clear malicious intent, the arbitrator concluded that his conduct did not constitute protected union activity.
Whether on or off duty – the grievor’s conduct attracted discipline
Even though many of the grievor’s unsubstantiated allegations were made while off duty, the arbitrator reasoned that the nature and substance of his claims directly affected the Company’s vital interests.
The grievor repeatedly made statements while off work, directly to work colleagues, on multiple occasions. Accordingly, this appropriately attracted discipline from the Company.
Conclusion
This is a positive decision for employers and confirms that an employee complaint must be made in good faith, have at least some evidentiary support, and be brought to the employer in the first instance.
Additionally, the case reinforces the principle that a unionized employee’s serious off-duty conduct—if it damages the employer’s reputation—can still attract discipline, up to and including termination.
Finally, this case is a rare arbitration decision in the modern age of labour relations in which, upon proper proof by the employer of just cause, a termination was upheld and the grievance dismissed.
Mr. Keith, Ms. Cabel, and Mr. Cammalleri are lawyers with KPMG Law LLP in Toronto and may be contacted at: [email protected], [email protected] or 416-540-3435. For more information on the case, see Jazz Aviation LP v. ALPA 2024 CanLII 99705 (CA LA).
