FPSLREB Decisions

Discipline - Termination - Rules of evidence - Natural justice - Rule in Browne v. Dunn - Duty to warn a witness that part of his testimony is going to be contradicted - the grievor grieved the termination of his employment - at the hearing, the grievor called a witness to contradict the testimony of one of the employer's witnesses - the employer objected that the rule in Browne v. Dunn had not been followed during cross-examination, in that its witness had not been warned that his testimony would be challenged - the employer argued that the grievor had an obligation to cross-examine the witness on all points of his evidence that would be contradicted by the grievor's witness - the employer added that it was not obvious to its witness that his testimony would be contradicted - the employer alleged that allowing him to recall its witness for re-examination would not be an appropriate remedy to the breach of the rule in Browne v. Dunn - the grievor replied that he was allowed to present a full defence to the employer's case - he added that the employer's witness had been cross-examined on the important points of his testimony and knew that contradictory versions of the event existed - the grievor undertook not to re-cross-examine the employer's witness if the latter was called for re-examination - the employer replied that it was taken by surprise, as the grievor's witness' testimony differed from his written statements - the adjudicator found that Canadian courts have taken the position that no absolute or general rule exists with respect to the significance of cross-examining or not cross-examining a witness - the adjudicator further found that the grievor's questions to the employer's witness during cross-examination put him on notice that his version of the event might be challenged - the adjudicator added that the employer would be allowed to re-examine its witness. Objection denied. Cases cited:Browne v. Dunn (1893), 6 R. 67 (H.L.); Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Verney (1993), 67 O.A.C. 279, 87 C.C.C. (3d) 363; Hurd v. Hewitt (1994), 20 O.R. (3d) 639, 75 O.A.C. 205, 120 D.L.R. (4th) 105.