Lawyer Trevor Thomas, Contributor.
Earlier this year, our neighbours and good friends at Connect Family Law reviewed the recent BC Court of Appeal decision in Chellappa v. Kumar, a case that brought together family and labour laws. You can find Connect’s comments on the importance of the case for family lawyers and clients here.
For our perspective, keep reading…
The labour law issue in Chellappa was whether an employer could use evidence from an unrelated family law trial during a grievance arbitration involving one of its employees (the Employee).
The appeal court in Chellappa provided the following background to this issue:
The Employee, who worked for the provincial government as a child protection social worker, was a friend of the Ex-Wife in the family law matter. Before the family law trial occurred, the Employee was suspended from work for five days because of his “conduct in supporting [the Ex-Wife] in the family law case”. During the trial, the Employee testified as a witness for the Ex-Wife. In his reasons for judgment, the family law judge was “critical of [the Employee’s] conduct in relation to the family law case”.
The appeal court didn’t offer any details about the nature of the Employee’s “conduct”, either before or during the family law trial.
The Employee’s union grieved his suspension, and the grievance went to arbitration. There, the union and employer exchanged certain documents from the family law case. The arbitration was adjourned so that the employer could investigate the Employee’s “conduct”, and the employer obtained (from the Ex-Husband) a copy of the Employee’s testimony at the trial. The employer ultimately fired the Employee “in part because of his involvement in the family law case”, and the union grieved the dismissal as well.
When the arbitration resumed, the employer attempted to rely on the family law materials it had obtained, but the union objected. The arbitrator ruled that it was up to the family law trial judge to decide whether the employer could use these materials.
The judge decided that the employer was permitted to use the documents in the arbitration because it had followed the proper procedure in obtaining them. The Ex-Wife appealed this decision, but the appeal court denied her appeal. You can read the court’s reasons for allowing the employer to use the family law court documents in Connect’s blog post here.
As employment lawyers, we are intrigued by the appeal court’s cryptic comments regarding the Employee’s “conduct” in relation to the family law case, particularly since the employer deemed such conduct significant enough to take the most severe type of disciplinary action – termination of employment.
Unfortunately, despite our best sleuthing efforts, the nature of the Employee’s conduct remains a mystery. We were unable to find a copy of the judge’s written decision in the original family law trial or any information about the arbitration, so we don’t know what led the employer to suspend or dismiss the Employee or what the arbitrator decided.
So why did we bother to blog about this, since we don’t know all the facts or the outcome of the arbitration?
Because we think the case is another important reminder (from the BC Court of Appeal, no less) that things you say or do off the job have the potential to impact your employment.
We’ve blogged about this previously in a post about off-duty misconduct, where we discussed when bad behaviour outside the workplace can give an employer cause for dismissal. Because we don’t know the facts surrounding the Employee’s suspension and termination, we don’t know whether his situation falls within the category of “off-duty misconduct”.
What we do know is that if an employer is aware of employee behaviour that causes it concern, it may do whatever it can to rely on that behaviour to discipline the employee, including seek access to a third party’s court file.