Non-Culpable Misconduct Does Not Attract Discipline

In British Columbia Ferry Services Inc. v. British Columbia Ferry and Marine Workers’ Union (Failure to Report to Work Grievance), [2025] B.C.C.A.A.A. No. 117 (Matthews), Arbitrator Brett Matthews held the employer’s decision to discharge the grievor for insubordination to be excessive in all the circumstances, finding that some of the grievor’s behaviour was non-culpable (non-blameworthy) as a result of his mental disorder.

Background

In 2018, the grievor began experiencing symptoms of what was later diagnosed as schizoaffective disorder – bipolar type. Between 2018 and 2023, he went on a couple of extended leaves of absence from work – approved leaves – because of his mental disorder.

In August 2023, the grievor started a regular appointment at the employer’s call centre. Around the same time, he began experiencing symptoms related to his mental disorder.

Throughout August and September 2023, the grievor left work early and failed to attend several shifts. On a number of those occasions, the grievor failed to notify anyone that he would be absent.

The employer had several meetings with the grievor during that time. The employer: (1) requested medical information from the grievor to justify his absences; (2) reminded him to follow the employer’s call-in procedure should he need to miss work; and (3) inquired whether the grievor was experiencing mental health or physical symptoms incompatible with active employment.

The grievor failed to provide the employer with the requested medical information. He adamantly denied experiencing any mental health symptoms, stating that his absences were due to physical symptoms.

On September 6 and 15, 2023, the employer sent the grievor a couple of letters which: (1) listed all of his absences; (2) reminded him of his employment obligations; (3) informed him that he had not provided sufficient medical information; and (4) directed him to provide the requested medical information by no later than September 13, 2023.

On September 18, 2023, the grievor provided the employer with a note from his physician. The note stated he was “off work due to medical illness for the next month then reassess” [sic]. The grievor did not, however, complete the medical form that the employer had requested.

On September 21, 2023, the employer terminated the grievor’s employment for insubordination for his failure to attend at work, follow the proper call-in procedure and provide the requested medical information.

Decision

Arbitrator Matthews held the employer did not have just cause to discipline the grievor for his failure to report to work because his conduct was non-culpable. The arbitrator’s reasoning was:

• the grievor’s symptoms, including his psychosis and mood fluctuations, could have prevented him from working and had indeed prevented him from working in the past; and
• the evidence established that the grievor was “likely in a state of destabilization of his disorder” in August and September 2023, which rendered him incapable of working.

Arbitrator Matthews held, however, that the employer did have just cause to discipline the grievor for his failure to provide the requested medical documentation as well as his failure to follow the call-in procedure. He reasoned as follows:

• The grievor had at least some concern that his inability to work was due to his mental disorder. For various reasons, he had refused to tell his employer or treating physicians about his mental health symptoms, which prevented him from obtaining the requested medical information. As a result, he bore some responsibility for failing to obtain and provide the employer with the requested information to justify his absences from work.
• The grievor’s mental disorder did not render him incapable of following the employer’s call-in procedure.

In all the circumstances, Arbitrator Matthews held that termination of employment was excessive. He accepted that the grievor’s behaviour had consequences for the employer. The purpose of discipline, however, is to correct or prevent the recurrence of misconduct. In this case, the grievor’s mental health at the relevant time affected his decision-making and played a role in the misconduct.

The arbitrator provided the parties the opportunity to meet and discuss the terms of reinstatement and made it clear that he remained seized of the matter.

Takeaways

This case is an important reminder that the purpose of discipline is to correct or prevent the recurrence of misconduct. Where an employee cannot properly be blamed for misconduct, which can include non-culpable behaviour due to the employee’s mental health condition, discipline will not be justified.

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