This case involves the termination of a unionized employee, Shawn Brightly, for dishonesty. Specifically, Brightly claimed paid sick leave from his employer but was discovered participating in a curling event during that time. The employer alleges Brightly was dishonest in his sick leave claim and interactions with HR and management. The union grieved Brightly's termination. The arbitrator relied on previous arbitration cases that established dishonesty, abuse of sick leave policies, and lack of contrition as justification for termination. The arbitrator ultimately dismissed the union's grievance, finding Brightly's actions were calculated and repeated dishonesty that destroyed the employment relationship.

1. KWANTLEN POLYTECHNIC UNIVERSITY
LABOUR and EMPLOYEE RELATIONS: HRMT 5190 (A50)
ASSIGNMENT 1:
Shawn Brightly Termination Case
PREPARED BY
Name: Nisha Thompson
Student ID: 100422179
Date: June 17, 2023

2. CASE #1
INTRODUCTION
168 L.A.C. (4th) 167
British Columbia Arbitration
Kohler Ltd. v. Hytec Employees Assn.
2007 CarswellBC 3365, [2007] B.C.C.A.A.A. No. 246, [2008] B.C.W.L.D. 4568,
[2008] B.C.W.L.D. 4569, [2008] B.C.W.L.D. 4570, [2008] B.C.W.L.D. 4571, 168
L.A.C. (4th) 167, 92 C.L.A.S. 160
In the Matter of an Arbitration between Kohler Ltd., (The "Employer") and
Hytec Employees Association, ("Union")
R. Coleman Member
Heard: September 5 - October 30, 2007
Judgment: November 29, 2007
Docket: None given.
Counsel: John McConchie, for Employer
David Mardiros, for Union
Subject: Labour; Public
Disciplinary offences --- Dishonesty — General
STORY of this case:
Mr Chair, the Kohler Ltd. v. Hytec Employees Assn. case is about dishonesty. In that
case the grievor was chose to be absent from work in defiance of refused request for
leave. He manipulated a doctor to provide medical excuse which shows calculated
dishonesty which justified discharge. The grievor’s 9-year employment record as an
average employee insufficient to outweigh intentional misconduct, lack of contrition
and continued dishonesty. Reinstatement is not appropriate.
In the case of Shawn Brightly, being a more tenured employee with 28 years of
service, he would have been even more aware of acceptable conduct based on the
employer’s policies and procedures. Additionally, holding the esteemed position of
Chief Shop Steward places a significant amount of authority and responsibility in Mr.

3. Brightly. This position exposes him, more than a normal employee, to the outcome
disciplinary cases and emphasizes that he is fully aware of what is acceptable
conduct. Reinstatement was deemed inappropriate in the Kohler Ltd. v. Hytec
Employees Assn. case because of a continued dishonesty. Such is also the case
with Mr. Brightly directly and intentionally lying to the HR and General Manager
about participating in the curling event during the period he claimed paid sick leave
from the company.
State the Decision:
And the arbitrator decided that “the grievance is dismissed" as he did not find
termination to be an excessive disciplinary response.
Explain the LAW relied on by the arbitrator.
The arbitrator relied on the case Albright and Wilson Americas and S.T.E.C. Local
165 (Daniel) (September 21, 1992, unreported) [summarized 28 C.L.A.S. 198]
(Frumkin), at page 13:
Abuse of such a nature must be characterized for purposes of an appropriate
employer response, as misconduct of the gravest order. It is an affront to a
system which, in its application, must rely at least in some measure, upon the
good faith of those claimants. Perpetuation of such a system and its noble
objectives cannot be sustained where there is a flagrant abuse, and it is for
this reason that where such abuse is detected it must be treated as most
serious and dealt with most harshly. It is not surprising, therefore, that
arbitrators in cases where abuse has been identified have reacted as they
have.
Those conclusions are mirrored in Sky Chefs Canada Ltd., supra, which quotes from
Ottawa-Carleton (Regional Municipality) v. C.U.P.E., Local 503 (1985), 18 L.A.C.
(3d) 292 (Ont. Arb.) (Burkett), to list appropriate considerations. At para 29 of Sky
Chefs Canada Ltd.:
Arbitral jurisprudence treats misrepresentation of disability and falsely claiming sick
benefits, as a breach of trust akin to theft, and a fundamental breach of the
employment relationship. Arbitrators have generally viewed such acts of dishonesty
as serious misconduct, which often warrant dismissal. The law with respect to
disciplinary penalties in dishonesty cases, is summarized in Regional Municipality of
Ottawa-Carlton and C.U.P.E., Local 503 (1985), 18 L.A.C. (3d) 292 (Burkett), p. 297:

4. Although it was once the prevailing arbitral view that dishonesty justified termination
in all cases, that is no longer the case. While I accept the company submission that
any dishonesty is a serious offense, I do not accept that discharge should be the
automatic response in every such case. Indeed, the recent jurisdiction holds that the
severity of the penalty in a dishonesty case should be determined on a review of a
number of factors including the service and record of the grievor, the nature and
extent of the dishonesty, the contriteness of the grievor, the impact of the penalty
upon the grievor having regard to his age and skill, and, most importantly the need
for general deterrence.
Para 94 I concur with the approach in Ottawa-Carleton (Regional Municipality) v.
C.U.P.E., Local 503, supra. Accordingly, I have looked at the length and quality of
the grievor's service, the nature and extent of the dishonesty, the contriteness of the
grievor, the impact on the grievor, and the need for general deterrence.
Para 95 The grievor's record is a positive factor, but it is far outweighed by his
grade in the other relevant categories.
Para 96 First, his dishonesty was calculated and repeated. The evidence is clear
and convincing that he manipulated the doctor at the medical clinic to provide a
medical excuse, and then fabricated his symptoms when he described his claimed
illness to both his employer and this board. He them compounded this deceit by
going back to the same clinic, and the same doctor, to gain even more time off.
Whatever his motives for the second event, he not only misled his doctor, by again
withholding very relevant information, he perpetuated the lie with the Company by
fabricating a cause for his failure to come to work on the Monday morning. His
excuse for that morning has been proven almost beyond a shadow of a doubt to be
false. The smoking gun are the clinical records which show that no anti-anxiety drugs
were prescribed or provided on July 26.
97 Secondly, he has perpetuated the lie up to and including today, with no
admission and no contriteness. Only in the final incident, missing his August 8 shift,
does the grievor acknowledge that he has no one else to blame but himself for what
he believes was poor decision making in leaving Alberta to return to Armstrong, too
late to get back in time for his 6:00 a.m. shift, and for failing to call his employer to
notify them of that fact.

5. In this case, the arbitrator used the law to show the precedence that exists for
dishonesty and the abuse of sick leave. The arbitrator has also expressed that is it is
accepted arbitral thinking that dishonest and false testimony compounds misconduct
and clearly speaks to whether the employment relationship should remain severed
and whether it can be resuscitated.
SIMILARITIES
Mr. Chair, this case is like ours in the fact that both grievors were dishonest in their
dealings with the employer. They both abused the sick leave allowed by the
company in circumstances where both were proven not to be sick. Both grievors
perpetuated the lies they told, and in Shawn Brightly’s case, blatantly lying not only
to the HR Manager but also the company’s General Manager. Both cases involve the
manipulation of a doctor whereas Mr. Brightly lied to the doctor about having a back
pain.
The reason this case is important is that the arbitrator saw it fit to dismiss the
grievance because of the obvious and continued dishonesty displayed by the
grievor. Such is the case of Shawn Brightly and his grievance should be dismissed
on the same grounds. A harmonious employment relationship cannot be had in the
face of mistrust fuelled by the grievor’s perpetuated dishonesty.
CLAIM your REMEDY:
Because of this Mr. Chair we submit that you should dismiss Mr. Brightly’s
grievance.

6. CASE #2
INTRODUCTION
2006 CarswellBC 3331
British Columbia Arbitration
Agrifoods International Cooperative Ltd. v. Teamsters, Local 464
2006 CarswellBC 3331, [2006] B.C.C.A.A.A. No. 144, [2007] B.C.W.L.D. 2032,
[2007] B.C.W.L.D. 2033, [2007] B.C.W.L.D. 2034, 154 L.A.C. (4th) 77, 87 C.L.A.S.
136
In the Matter of an Arbitration between Agrifoods International Cooperative
Ltd., ("the Employer") and Teamsters Local Union No. 464, ("the Union")
J.P. Sanderson Member
Heard: June 5-26, 2006
Judgment: August 10, 2006
Docket: X-014/06(a)
Counsel: V.R. (Sam) Black, for Union
Bruce M. Greyell, for Employer
Subject: Occupational Health and Safety; Labour; Public
STORY of this case:
Mr. Chair, the Agrifoods International Cooperative Ltd. v. Teamsters, Local 464 case
is about discipline. The grievor is a Farm Pick-up Driver with almost 18 years tenure
and no previous disciplinary issues. The case is about the termination of the grievor
on the grounds of dishonesty. The grievor claims to have suffered a strain to his left
shoulder as a result of work activities and not racing and working on his car. The
grievor did not want to explain what he was doing with respect to his racing activities
because he knew it would adversely affect his claim and his right to receive benefits.
The employer alleges that the grievor was dishonest and misled both the Workers’
compensation Board and the employer. The grievor was chief shop steward and a
member of the negotiating committee.
In the Shawn Brightly case, he was also a chief union steward which means he
would be fully knowledgeable of the significance that is placed on honest behaviour

7. in the workplace. This position did not prevent both grievors from acting in a manner
that is considered contrary to that of someone with such authority and responsibility.
Both grievors also have a significant tenure with their respective employers and a
good employment record.
DECISION:
And the arbitrator decided to dismiss the case because the grievor was guilty of
dishonest and deceitful behaviour as alleged by the employer. It was further found
that discharge was not an excessive disciplinary response in the circumstances.
Explain the LAW relied on by the arbitrator.
The arbitrator’s thoughts on the matter are expressed below along with the laws
referred to.
Para 47 This case is all about honesty. Honesty in the workplace has been
the subject of frequent arbitral comment. Perhaps the seminal decision is that of
Arbitrator Adams in Phillips Cables Ltd. and International Union of Electrical, Radio
and Machine Workers, Local 510, Re (1974), 6 L.A.C. (2d) 35 (Ont. Arb.). In the
Weyerhaeuser Canada Co. case (supra), Arbitrator Chertkow stated at paragraph 93
"it is trite law to say that honesty in deals between an employee and an employer
forms the underpinning of a viable employment relationship". After referring to the
Phillips Cables Ltd. case, Arbitrator Chertkow went on as follows:
¶ 94 That doctrine applies, in my judgment, not only to cases of theft where
dishonesty is usually at the core of the misconduct, but also to cases involving
applications for sick leave benefits by employees. In a case cited by counsel
for the company, Simon Fraser University and Canadian Union of Public
Employees, Local 3338 (Diane Fraser Grievance) dated May 28th, 1992
(unreported) Arbitrator Donald R. Munroe, Q.C. commented at pages 21 and
22;

8. The ongoing ability of employers and unions to negotiate and administer sick
leave and long term disability plans depends in large measure on the
willingness of the beneficiaries of such plans to be honest in relation thereto.
In that sense, employees as well as employers have a stake in the veracity
and general bona fides of claims for sick leave or LTD indemnities. An
employee who deliberate makes a false claim is guilty of a serious breach of
trust — not only as against the employer but also as against her working
colleagues.
It is impractical to suggest that employers ought to be tightly policing and
second-guessing the applications by their employees for sick leave or LTD
benefits. Moreover, any such suggestion would be inconsistent with the aims
and underpinnings of the modern employment relationship. What is required
by everyone concerned is a reasonable and appropriate level of mutual trust;
and an attitude of voluntary compliance.
I adopt those views and they are just as applicable to an application for Workers'
Compensation Benefits as to other sick leave benefits like WI and LTD.
Para 48 In the Canada Safeway Ltd. case (supra) in dealing with the termination
of an employee involved in a WCB claim, I stated at paragraph 34 "In my view, a
measure of trust between employers and their employees is an essential lubricant
that is required to enable employment machinery in any workplace to function
properly for their mutual benefit".
Para 49 Of course, these are abstract principles that have been quoted. Each of
the cases — and there are many scattered through the arbitral jurisprudence dealing
with claims of injured employees either under the Workers' Compensation Act or
under benefit plans — turns upon the individual facts that are proven. Usually, and
this case is no exception, the decision comes down to whether on a balance of
probabilities the grievor's evidence is to be believed or whether the arbitrator is
prepared to accept the evidence of the employer witnesses. I agree with Arbitrator
Chertkow as to the legal principles to be applied in determining the credibility of
witnesses in the event there is a conflict of evidence and also with his comments

9. with respect to the arbitrator's duty to scrutinize the evidence with great care
because of the seriousness of the allegation(s). At paragraphs 98 and 99, Arbitrator
Chertkow said as follows:
¶ 98 In those circumstances, arbitrators are guided by the principles
enunciated by the late Mr. Justice O'Halloran of the British Columbia Court of
Appeal in his oft-quoted decision in Faryna v. Chorny, [1951] 2 D.L.R. 354 at
page 357 where he said;
The credibility of interested witnesses, particularly in cases of conflict of
evidence, cannot be gauged solely by the test of whether the personal
demeanour of the particular witness carried conviction of the truth. The
test must reasonably subject his story to an examination of its
consistency with the probabilities that surround the currently existing
conditions. In short, the real test of the truth of the story of a witness in
such a case must be its harmony with the preponderance of the
probabilities which a practical and informed person would readily
recognize as reasonable in that place and in those conditions.
¶ 99 There is also the issue of the standard of proof that applies in a case
where the allegation of employment misconduct contains an element of moral
turpitude, like dishonesty. Chief Justice Laskin (as he then was) of the
Supreme Court of Canada in Dalton Cartage (1982) 40 N.R. 135, affirmed the
principle that in all civil cases, including those where there is an allegation of
conduct that is morally blameworthy, the standard of proof remains proof on a
balance of probabilities. As well, he was in agreement with the proposition
that such proof on a balance of probabilities ought to be commensurate with
the gravity of the allegations. Where there is an allegation of conduct that is
morally blameworthy, the adjudicator is required to scrutinize the evidence
with even greater care. At pages 140-141 he said;
... where there is an allegation of conduct that is morally blameworthy
or that could have a criminal or penal aspect and the allegation is made
in civil litigation, the relevant burden of proof remains proof on a

10. balance of probabilities. So this court decided in Hanes v. Wawanesa
Mutual Insurance Co., [1963] S.C.R. 154. There Ritchie, J., canvassed
the then existing authorities, including especially the judgment of Lord
Denning in Bater v. Bater, [1950] 2 S11 E.R. 458, at p. 459 and the
judgment of Cartwright J., as he then was, in Smith v. Smedman,
[1952] 2 S.C.R. 312, at p. 331, and he concluded as follows (at p. 164):
It is true that apart from his reference to Bater v. Bater and to
the Smith and Smedman case, Ritchie, J., did not himself
enlarge on what was involved in proof on a balance of
probabilities where conduct such as that included in the two
policies herein is concerned. In my opinion, Keith J., in dealing
with the burden of proof could properly consider the cogency of
the evidence offered to support proof on a balance of
probabilities and this is what he did when he referred to proof
commensurate with the gravity of the allegations or of the
accusation of theft by the temporary driver. There is necessarily
a matter of judgment involved in weighing evidence that goes to
the burden of proof, and a trial judge is justified in scrutinizing
evidence with greater care if there are serious allegations to be
established by the proof that is offered.
Para 50 I have used these principles of law as my guide posts in my
examination of the evidence before me. As is evident from the wording of the
letter of termination quoted above, the position of the employer is that the
grievor was dishonest in his dealings with the WCB and with the employer
"with reference to your activities while off work... and with reference to your
injury and your inability to work". It is my conclusion the evidence of the
grievor is not to be believed and his story is not in "harmony with the
preponderance of the probabilities which a practical and informed person
would readily recognize as reasonable in that place and in those conditions".
In this case the arbitrator used case law to emphasize the importance of mutual trust
and willing compliance to policies and procedures. She highlights the impracticality

11. of employers strictly monitoring sick leave and other benefits to ensure employee
compliance.
SIMILARITIES
Both cases took place in British Columbia and involve employee dishonesty. Both
grievors are drivers in a factory/plant environment. Both grievors have a pastime that
impacted their decisions about their employment – racing and curling. There are
similarities with respect to the extensive tenure of both grievors, a clean record, and
their positions as Chief Union Steward. Both were in a position, more than an
average employee, to know and exercise acceptable conduct. Whereas Agrifoods
International Cooperative Ltd. v. Teamsters, Local 464 relates to fraud in a Workers’
Compensation Board claim, and the Shawn Brightly case deals with abuse of sick
leave and the underlying principles are the same.
The reason this case is important is that it highlights the emphasis that is placed on
trust and honesty not only by the employer, but also by the arbitrator. It also
demonstrates that many years of tenure and being in a notable position does not
make one immune to committing acts of fraud and dishonesty. This case upholds
principle and the precedence that has been set for honouring honest and forthright
conduct in employment relations and appropriately sanctions any deviations from
same.
CLAIM your REMEDY:
Because of this Mr. Chair we submit that you should rule in favor of the employer
and dismiss the grievance.

12. References
Westlaw Canada. (n.d.). Agrifoods International Cooperative Ltd. v. Teamsters,
Local 464. Retrieved from https://nextcanada-westlaw-
com.ezproxy.kpu.ca:2443/Document/I29916b60513c4a13e0440003ba0d6c6d
/View/FullText.html?originationContext=typeAhead&transitionType=Default&c
ontextData=(sc.Default)
Westlaw Canada. (n.d.). Kohler Ltd. v. Hytec Employees Assn. Retrieved from
https://nextcanada-westlaw-
com.ezproxy.kpu.ca:2443/Document/I4e2fb0aeb35510d4e0440003ba0d6c6d/
View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation
%2Fi0ad7140a00000188c9906fa5f2da02dd%3Fppcid%3Dcb339bebc7014c7
8a30dee5dd25db26d%26Nav%3DCAN_B