Daniel St. Louis photo

Dave Francis is thrilled by the arbitrator's ruling and awards,
but won't consider the battle won until there's some
money in his bank account.

27 December 2003

Arbitrator's awards to reporter
'a stinging rebuke of Irvings'

A Moncton journalist who took on the Irving empire has won 'extremely rare' and significant punitive damages

Moncton Typographical Union | TNG Canada Local 30636

In a "virtually unprecedented" ruling, an arbitrator has found in favour of journalist David against New Brunswick's media Goliath and awarded the type of damages for harassment and mental suffering that normally would be associated with a human rights case.

Nelson Roland, legal counsel for TNG Canada/CWA, calls the awards of $5,000 in aggravated damages and $20,000 in punitive damages to Dave Francis, a senior reporter at the Moncton Times & Transcript, "a stinging rebuke of the Irvings" — the powerful industrialist family that owns the newspaper as well as most of the media and much of the province's corporate sector.

"I have never seen (punitive) damages like this. It's extremely rare. Usually you see it in human rights cases," says Roland, the veteran labour lawyer who has been involved in the arbitration for more than a year.

"I'm just relieved to finally have a decision after such a long battle," says Francis, "and I just hope we don't have an equally long battle trying to get the company to pay.

"I look at this as a triumph not just for myself, but for others at the newspaper who are fighting their own grievances. Still, to think this employer will learn a lesson from this is probably hoping for a bit much."

"Maybe at the very least, they'll think twice about doing this to someone else," adds Francis. "This company has virtually no respect for its employees, and likely never will. And I'd like the public to know that."

Francis, who had been president of the Moncton Typographical Union from 1995 to 1997, and was pressed to take up the post again in December 2001 — when he was about six weeks into sick leave — presented evidence that his activism only served to turn up the heat from management at the notoriously anti-union company.

Arbitrator Geoff Bladon awarded punitive damages to Francis, who suffers from depression, because of the "outrageous" and "sinister" conduct of management, which created and distributed false and misleading information "deliberately intended to wrongly deprive the reporter" of his short-term-disability (STD) benefits.

Further, "the employer was aware in the Fall of 2001 that Francis had to sell his house because of (his) precarious financial position and yet it set out to put an end to his sole source of revenue through his STD benefits."

"That conduct constitutes harassment" and the "intentional infliction of mental suffering," writes the arbitrator, who also notes that the company was aware of Francis's previous bouts of depression that date back to his Twenties.

Francis observes that "some of the things they did were beyond belief. The lies and distortions were meant to harm me as much as possible, and nothing else. And the arbitrator saw that."

In awarding aggravated damages, Bladon cites the "exacerbation of the depression" and the "financial consequences of the termination of the benefit entitlement" in mid-January 2002. The company had approved initiation of the year-long entitlement the previous October, then terminated the payments without warning.

"There can be little doubt that the withdrawal of the grievor's sole source of income would have had a substantial impact on his financial well being," Bladon finds.

The arbitrator orders the company to make nine months' worth of disability payments, with interest, to Francis.

"This is a wonderful victory," declares Arnold Amber, Director of TNG Canada/CWA. "It was certainly worth fighting for because there was a lot of injustice in the way (the Irvings) handled Dave Francis."

David Esposti, the TNG Canada Rep who oversees Eastern Canada, is elated at the ruling and says it is vindication for Francis: "They screwed him over big time."

The arbitrator heard evidence that the "screwing" began in September 2001, when management axed two weekly columns then being written by the highly regarded journalist, removed his byline from a number of stories, suspended him for three days, and demoted him from Associate Editor to reporter with a corresponding cut in wages.

Francis, who was suffering from depression, was ordered off work by his family physician in mid-October. His grievances alleging harassment, intimidation and discrimination were filed at the end of that month. In early December, Francis attended a union meeting during which he was acclaimed to the position of local president, which was vacant as the result of a layoff.

Over the ensuing weeks and months, managers who were monitoring Francis's activities both in the community and on behalf of the union, invented and exaggerated events in their reports to the sick-leave plan administrator (Canada Life) to support their contention that Francis was not disabled and that the termination of his benefit payments in mid-January 2002 was justified.

"We're very happy for Dave," says Rod Allen, the current president of the Local. "It's been a long and miserable fight for him these last few years."

"We hope (the ruling) is a signal to companies everywhere that stress-related medical leave is to be taken seriously," he adds.

Lawyer Roland, who expects the company to seek a judicial review of the arbitrator's ruling, notes that Francis is still off work due to his illness and is teetering on the verge of bankruptcy.

The reporter is grateful for all the support Roland has given him: "Nelson deserves a lot of credit for hanging in there during what had to be a frustrating case for him as well. He did a great job."

Francis also has an outstanding legal dispute with Canada Life, which administers both the short- and long-term disability plans for the newspaper. The insurer ultimately declared Francis ineligible for LTD based on the false and misleading information provided by management at the Times & Transcript. The case is currently before the courts and it remains to be seen what impact, if any, the arbitrator's ruling will have on the insurer's position.

"As great as this decision is, we still have the civil lawsuit to settle, and we're hoping for more damages," says Francis. "The fact is, what the company did has resulted in the destruction of my credit rating and what we've won so far doesn't make up for that."