From time to time stewards are reminded that they need to pay attention to the timelines in the collective agreement. It's rare for a collective agreement not to set out clearly the number of days within which a grievance must be filed or advanced to the next step.
Where a provision contains the word "must" or sets out a consequence for failure to meet a timeline (for example, that the grievance "will be deemed to have been abandoned" or some such other phrase), then that's an indication that the time limits in your collective agreement may well be "mandatory" as opposed to "permissive". In such a situation, one needs to pay particular attention and ensure that there is compliance by everyone, including the employer.
The British Columbia Labour Code gives arbitrators specific authority to relieve against time limits. The usual scenario is that an employer will raise a preliminary objection at arbitration (rarely is this a union's objection) that the grievance should be dismissed because it is out of time. The arbitrator then applies the tests that have been developed to determine whether she should exercise her jurisdiction under the Code.
BC arbitrators are usually referred to the often-quoted decision of Arbitrator Munroe in Pacific Forest Products Ltd. (Sooke Logging Division) (1984), 17 L.A.C. (3d) 435 for the seven "relevant" considerations that are the basis for the determination:
(a) the degree of force with which the parties have given contractual expression to the time-limits;
(b) whether the breach of the time-limits was in the early or late stages of the grievance procedure;
(c) the length of the delay;
(d) whether the applicant for relief has a reasonable explanation for the delay;
(e) the nature of the grievance, i.e. the impact on the grievor of a refusal to grant relief against the time-limits;
(f) whether the employer would suffer prejudice by the granting of such relief, and
(g) any other factors peculiar to the circumstances at hand.
Arbitrator Jim Dorsey in a September 2008 BCTF and BCPSEA [2008] B.C.C.A.A.A No. 131 provides a good review of the jurisprudence on this topic.
Sunday, November 23, 2008
Tuesday, November 4, 2008
union workplace campaigns
From time to time, and sometimes more often than that, unions run campaigns that involve their members wearing campaign paraphernalia such buttons, stickers or ribbons in their workplace.
What immediately comes to mind are the stickers or buttons worn by many union members around the April 28 Day of Mourning to remember workers who died in the workplace, the United Way campaign buttons, the various ribbon campaigns, the anti-bullying pink campaign, the various children's charity fundraising buttons or even the ubiquitous poppy that many wear during the weeks leading up to November 11 Memorial Day.
This material is rarely the subject of employer concern. What does appear on the pages of arbitration reports, however, is when workers wear buttons that contain messages with which the employer does not agree.
Arbitrators have had many an occasion to deal with these issues.The general view is that the wearing of union campaing buttons and insignia is a form of expression protected by s. 2(b) of the Charter. Freedom of expression is a fundamental freedom which, to quote our Court of Appeal, must be valued and given its place within the workplace. Employers must have an overriding interest to interfere with the exercise of this right.
An arbitrator has written that workers do not leave their freedom of expression at the door once they enter the workplace, just as they don't leave their protection the criminal law rules when they enter their workplace.
Invariably, in these cases arbitrators are called upon to determine where the balance tips between the interest of workers to express themselves and the legitimate interest of employers to operate their business.
In some jurisdictions arbitrators have taken the view that union campaign buttons may only be worn in the workplace during the period of collective bargaining. That view is not shared by arbitrators in British Columbia.
In addition to the Charter freedom of expression value, these cases engage also s.8 of the BC Labour Relations Code "Right to Communicate" and s.4 of the Code that guarantees union members' right to participate in the union's lawful activities. As well, and as always, stewards must look to the language of the collective agreement to see whether the parties have made specific provision for the wearing of union insignia and materials.
Although the size and shape and layout of the button is looked at, generally, arbitrators have been concerned with the message that buttons contain as well as the context. As long as the message is not insulting, provocative, derogatory or obscene, employers have to prove that the wearing of an otherwise non-objectional button in the workplace is detrimental to the employer's interests. Detriment has to be actual harm and it is not enough to say that actual harm is possible; it has to be predictable that the wearing of the button will result in harm.
In some circumstances actual harm can be inferred. However, as one arbitrator has suggested, the bigger the inference the more unlikely it will be for arbitrators to draw it without supporting evidence.
A couple of cases that BC stewards and union representatives might find helpful are the HEU (Holyrood) 2004 case involving an anti-contracting out sticker and the 2006 UFCW Local 1518 Overwaitea case involving a Save our Store button. The BC Court of Appeal discussion about freedom of expression and workplace union campaigns in the BCTF 2005 case on parent-teacher interviews and bulletin boards is also a good starting point.
What immediately comes to mind are the stickers or buttons worn by many union members around the April 28 Day of Mourning to remember workers who died in the workplace, the United Way campaign buttons, the various ribbon campaigns, the anti-bullying pink campaign, the various children's charity fundraising buttons or even the ubiquitous poppy that many wear during the weeks leading up to November 11 Memorial Day.
This material is rarely the subject of employer concern. What does appear on the pages of arbitration reports, however, is when workers wear buttons that contain messages with which the employer does not agree.
Arbitrators have had many an occasion to deal with these issues.The general view is that the wearing of union campaing buttons and insignia is a form of expression protected by s. 2(b) of the Charter. Freedom of expression is a fundamental freedom which, to quote our Court of Appeal, must be valued and given its place within the workplace. Employers must have an overriding interest to interfere with the exercise of this right.
An arbitrator has written that workers do not leave their freedom of expression at the door once they enter the workplace, just as they don't leave their protection the criminal law rules when they enter their workplace.
Invariably, in these cases arbitrators are called upon to determine where the balance tips between the interest of workers to express themselves and the legitimate interest of employers to operate their business.
In some jurisdictions arbitrators have taken the view that union campaign buttons may only be worn in the workplace during the period of collective bargaining. That view is not shared by arbitrators in British Columbia.
In addition to the Charter freedom of expression value, these cases engage also s.8 of the BC Labour Relations Code "Right to Communicate" and s.4 of the Code that guarantees union members' right to participate in the union's lawful activities. As well, and as always, stewards must look to the language of the collective agreement to see whether the parties have made specific provision for the wearing of union insignia and materials.
Although the size and shape and layout of the button is looked at, generally, arbitrators have been concerned with the message that buttons contain as well as the context. As long as the message is not insulting, provocative, derogatory or obscene, employers have to prove that the wearing of an otherwise non-objectional button in the workplace is detrimental to the employer's interests. Detriment has to be actual harm and it is not enough to say that actual harm is possible; it has to be predictable that the wearing of the button will result in harm.
In some circumstances actual harm can be inferred. However, as one arbitrator has suggested, the bigger the inference the more unlikely it will be for arbitrators to draw it without supporting evidence.
A couple of cases that BC stewards and union representatives might find helpful are the HEU (Holyrood) 2004 case involving an anti-contracting out sticker and the 2006 UFCW Local 1518 Overwaitea case involving a Save our Store button. The BC Court of Appeal discussion about freedom of expression and workplace union campaigns in the BCTF 2005 case on parent-teacher interviews and bulletin boards is also a good starting point.
Friday, July 25, 2008
The right to remain silent in disciplinary investigations: does it really exist?
Union stewards who are asked to represent members in investigations should be familiar with a few principles and a couple of cases that may help them navigate this tricky area of union representation. While the cases referred to are mainly from the BC jurisdiction the principles are applicable to Canadian labour law.
In all instances stewards, should first look to their collective agreement to see whether there are provisions that govern how an employer is to conduct an investigation. Generally collective agreements will require that an employee can be represented by a union steward, but are silent on what the rights of employees and the obligation of employers are in an investigation. But once in a while, as I found out to my delight recently, the parties will have turned their mind to this topic and may actually set out in detail the rights and obligations that apply to an employer investigation. *
What are the rights and obligations of unionized employees when the employer is conducting an investigation about that employee?
The seminal case in British Columbia is the 1990 Labour Relations Board decision
Tober Inudstries and UFCW Local 1518, No. C54/90.
This case stands for the proposition that, except in extreme circumstances, employees cannot be disciplined for failing to offer an explanation or refusing to answer questions in an investigation which may result in their discipline. This is an exception to the general rule that an employee who refuses to follow an employer's direction can be disciplined for insubordination.
The underlying principle is that an employee has no obligation to assist an employer to build a case against her. For a discussion of this see Overwaitea Food Group and UFCW Local 1518 42 L.A.C. (4th) 19 (Taylor).
The Board, and arbitrators, have described such investigative meetings as "an opportunity" for an employee to provide an explanation.
While the employee who fails to avail himself of the opportunity cannot be disciplined, he does run the risk that, if an arbitrator later finds that the employer has established just cause for discipline, his silence may well be considered an aggravating factor when determining the appropriateness of the discipline imposed.
Stewards then do have a duty to advise members that while they do not have to answer the employer's questions, they do so with the possibility that their silence may be held against them, if it is proven that they should have been disciplined. (It's alway's useful to re-read Wm. Scott when dealing with potential discipline case).
The question that remains then is how do you determine whether the situation you are dealing with amounts to "extreme circumstances" that turn the opportunity to explain into an obligation by the employee to provide an explanation? It's important to try and figure this out because whether the opportunity has turned into the obligation, failure or refusal to explain may amount to an independent ground discipline.
An example of the more obvious set of circumstances is where an employee is "caught in the act" or "caught red-handed" in unauthorized possession of the employer's property. In such circumstances, where the employer is investigating a theft, the employee has an obligation to offer an explanation. An employee who remains silent in such a circumstance may be disciplined for failing to cooperate in the investigation, and in the absence of extenuating circumstances, an arbitrator is likely to uphold the grievance.
The more difficult area is where the facts are not so simple. In such circumstances, assessing when the obligation has arisen requires a balancing of the employee's interest in remaining silent (and thus protecting his own privacy) and the employer's interest to protect its legitimate business interests. This principle has been expressed as the obligation arises when the employee's silence would undermine the employer's legitimate business interest.
Stewards would be well advised to read the decision of Arbitrator Foley in BC Ferries and BC Ferry and Marine Worker's Union 159 L.A.C. (4th) 165 to see an application of this principle.
In that case the two grievors were officers of the ferry Queen of the North at the time of its highly publicized sinking in which two passengers died. BC Ferries launched an internal investigation and made a public commitment that it would make a full discloure of its findings.
The grievors had participated fully in two other investigations into the mishap. One by the Canadian Transportation Commission and the other by the employer's insurer. In both investigations the grievors were assured confidentiality and the protection of the Canada Evidence Act against self-incrimination.
When it came to the internal BC Ferries investigation, the grievors sought similar assurances on the advice of their legal counsel. The employer refused. The primary reason apparently was that the employer had a public duty to, not only find out what had happened, but also to make a full disclosure. The employer suspended the employees without pay pending their co-operation with the investigation.
The union grieved and the grievance was dismissed. The arbitrator reasoned that the employer's legitimate business interests could not be achieved without the cooperation of the employees. The employer needed to know what had happened at the critical period and had a right to tell the public. In these circumstances there was an obligation on the employees to co-operate with the investigation and their refusal to do so was a ground for discipline.
Generally, extreme circumstances will not normally arise and it is important to get the employer to establish that in a particular investigation the employee has an obligation to answer questions.
Even in those circumstances, however, employees have the right to know what the allegations are against them, to be asked clear and relevant questions and to be given a reasonable opportunity to answer the questions. This means that employees are entitled to caucus with their union representative before offering an explanation.
The most important point for stewards and union members facing investigation into workplace misconduct to remember is to immediately contact their union staff representative or local executive officer for advice.
*The collective agreement between Whitehorse General Hospital and the Professional Institute of the Public Service of Canada contains a provision describing the rights and obligations in an investigation, including the obligation to provide disclosure of all documents and information relating to the allegations.
In all instances stewards, should first look to their collective agreement to see whether there are provisions that govern how an employer is to conduct an investigation. Generally collective agreements will require that an employee can be represented by a union steward, but are silent on what the rights of employees and the obligation of employers are in an investigation. But once in a while, as I found out to my delight recently, the parties will have turned their mind to this topic and may actually set out in detail the rights and obligations that apply to an employer investigation. *
What are the rights and obligations of unionized employees when the employer is conducting an investigation about that employee?
The seminal case in British Columbia is the 1990 Labour Relations Board decision
Tober Inudstries and UFCW Local 1518, No. C54/90.
This case stands for the proposition that, except in extreme circumstances, employees cannot be disciplined for failing to offer an explanation or refusing to answer questions in an investigation which may result in their discipline. This is an exception to the general rule that an employee who refuses to follow an employer's direction can be disciplined for insubordination.
The underlying principle is that an employee has no obligation to assist an employer to build a case against her. For a discussion of this see Overwaitea Food Group and UFCW Local 1518 42 L.A.C. (4th) 19 (Taylor).
The Board, and arbitrators, have described such investigative meetings as "an opportunity" for an employee to provide an explanation.
While the employee who fails to avail himself of the opportunity cannot be disciplined, he does run the risk that, if an arbitrator later finds that the employer has established just cause for discipline, his silence may well be considered an aggravating factor when determining the appropriateness of the discipline imposed.
Stewards then do have a duty to advise members that while they do not have to answer the employer's questions, they do so with the possibility that their silence may be held against them, if it is proven that they should have been disciplined. (It's alway's useful to re-read Wm. Scott when dealing with potential discipline case).
The question that remains then is how do you determine whether the situation you are dealing with amounts to "extreme circumstances" that turn the opportunity to explain into an obligation by the employee to provide an explanation? It's important to try and figure this out because whether the opportunity has turned into the obligation, failure or refusal to explain may amount to an independent ground discipline.
An example of the more obvious set of circumstances is where an employee is "caught in the act" or "caught red-handed" in unauthorized possession of the employer's property. In such circumstances, where the employer is investigating a theft, the employee has an obligation to offer an explanation. An employee who remains silent in such a circumstance may be disciplined for failing to cooperate in the investigation, and in the absence of extenuating circumstances, an arbitrator is likely to uphold the grievance.
The more difficult area is where the facts are not so simple. In such circumstances, assessing when the obligation has arisen requires a balancing of the employee's interest in remaining silent (and thus protecting his own privacy) and the employer's interest to protect its legitimate business interests. This principle has been expressed as the obligation arises when the employee's silence would undermine the employer's legitimate business interest.
Stewards would be well advised to read the decision of Arbitrator Foley in BC Ferries and BC Ferry and Marine Worker's Union 159 L.A.C. (4th) 165 to see an application of this principle.
In that case the two grievors were officers of the ferry Queen of the North at the time of its highly publicized sinking in which two passengers died. BC Ferries launched an internal investigation and made a public commitment that it would make a full discloure of its findings.
The grievors had participated fully in two other investigations into the mishap. One by the Canadian Transportation Commission and the other by the employer's insurer. In both investigations the grievors were assured confidentiality and the protection of the Canada Evidence Act against self-incrimination.
When it came to the internal BC Ferries investigation, the grievors sought similar assurances on the advice of their legal counsel. The employer refused. The primary reason apparently was that the employer had a public duty to, not only find out what had happened, but also to make a full disclosure. The employer suspended the employees without pay pending their co-operation with the investigation.
The union grieved and the grievance was dismissed. The arbitrator reasoned that the employer's legitimate business interests could not be achieved without the cooperation of the employees. The employer needed to know what had happened at the critical period and had a right to tell the public. In these circumstances there was an obligation on the employees to co-operate with the investigation and their refusal to do so was a ground for discipline.
Generally, extreme circumstances will not normally arise and it is important to get the employer to establish that in a particular investigation the employee has an obligation to answer questions.
Even in those circumstances, however, employees have the right to know what the allegations are against them, to be asked clear and relevant questions and to be given a reasonable opportunity to answer the questions. This means that employees are entitled to caucus with their union representative before offering an explanation.
The most important point for stewards and union members facing investigation into workplace misconduct to remember is to immediately contact their union staff representative or local executive officer for advice.
*The collective agreement between Whitehorse General Hospital and the Professional Institute of the Public Service of Canada contains a provision describing the rights and obligations in an investigation, including the obligation to provide disclosure of all documents and information relating to the allegations.
Friday, April 18, 2008
No criminal charges for BC company whose negligence killed a worker: Where's the justice?
WorkSafe BC's March/April 2008 magazine came across my desk to-day and the headline at page 17 blares "Crown prosecutes logging company and owner".
My first thought, of course, was that British Columbia had followed the lead of Quebec and laid its first charge under the Criminal Code for negligence causing death of a worker.
The story is about how, following an investigation into the death of a skidder operator employed by Aaron Goenhuysen Mechanical Ltd.(AGM), WorkSafe BC referred the matter to Crown counsel to pursue prosecution.
WorkSafe had taken this unusual step because it found that "this was an egregious departure from the standard of care required by employers."
The conduct was so bad that it "warranted the stigma of prosecution."
Families of workers killed on the job and unions who advocate for safe workplaces know too well how unusual prosecution is in such cases. The wording of WorkSafe makes a direct reference to negligence (a breach of the standard of care is one element of negligence). It was open to the provincial Attorney-General's office(acting on behalf of the Crown) to choose to prosecute the company and its owner under the Criminal Code. That's what the Quebec Attorney-General did late last year. (see my March 21, 2008 posting on R. v. Transpave).
But British Columbia's prosecutors instead chose the lesser "stigma" of breach of the Occupational Health and Safety Regulation. The company and its owner/supervisor plead guilty before a provincial court judge who fined them $60,000 and $20,000 respectively.
In Quebec, the Transpave case involved an equally "egregious a departure from the standard of care required by employers". That death attracted the stigma of criminal prosecution with its attendant criminal record and criminal fine
($110,000.00 in total).
Parliament added the "corporate murder" provision to the Criminal Code to address exactly these kinds of cases. Why is the Criminal Code not being used in British Columbia when workers are killed on the job due to the employer's negligence? And why was it not used in this case?
Check out page 17 of the March/April 2008 WorkSafe magazine at the following url:
http://www.worksafebc.com/publications/newsletters/worksafe_magazine/default.asp
My first thought, of course, was that British Columbia had followed the lead of Quebec and laid its first charge under the Criminal Code for negligence causing death of a worker.
The story is about how, following an investigation into the death of a skidder operator employed by Aaron Goenhuysen Mechanical Ltd.(AGM), WorkSafe BC referred the matter to Crown counsel to pursue prosecution.
WorkSafe had taken this unusual step because it found that "this was an egregious departure from the standard of care required by employers."
The conduct was so bad that it "warranted the stigma of prosecution."
Families of workers killed on the job and unions who advocate for safe workplaces know too well how unusual prosecution is in such cases. The wording of WorkSafe makes a direct reference to negligence (a breach of the standard of care is one element of negligence). It was open to the provincial Attorney-General's office(acting on behalf of the Crown) to choose to prosecute the company and its owner under the Criminal Code. That's what the Quebec Attorney-General did late last year. (see my March 21, 2008 posting on R. v. Transpave).
But British Columbia's prosecutors instead chose the lesser "stigma" of breach of the Occupational Health and Safety Regulation. The company and its owner/supervisor plead guilty before a provincial court judge who fined them $60,000 and $20,000 respectively.
In Quebec, the Transpave case involved an equally "egregious a departure from the standard of care required by employers". That death attracted the stigma of criminal prosecution with its attendant criminal record and criminal fine
($110,000.00 in total).
Parliament added the "corporate murder" provision to the Criminal Code to address exactly these kinds of cases. Why is the Criminal Code not being used in British Columbia when workers are killed on the job due to the employer's negligence? And why was it not used in this case?
Check out page 17 of the March/April 2008 WorkSafe magazine at the following url:
http://www.worksafebc.com/publications/newsletters/worksafe_magazine/default.asp
Saturday, April 5, 2008
Is this the final chapter in the 2004 Telus labour dispute?
The latest in a long list of judgments dealing with contempt proceedings from the bitter lockout at Telus was issued on April 3, 2008, three years after the dispute ended. The BC Court of Appeal struck down a part of the order that the TWU members and supporters who had been found in contempt of a picketing injunction must pay the court costs awarded against them personally.
Originally 71 persons were arrested for breach of the order of Mr. Justice Burnyeat of the BC Supreme Court that restricted picketing. By the time things worked themselves through the justice system, eleven persons were found guilty of contempt and in March 2006 the sentences were handed down. These ranged from fines of $300 to $1000 payable to designated charities and 50 hours of community service. One person was given a one month suspended sentence, a fine of $1500 and ordered to provide a written apology. Costs were ordered against each of the eleven individuals. In response to a question from the judge, the union stated that it intended to assist with payment of the costs, but not the fines. So, the judge included in his order a stipulation that the fines and costs could not be paid by anyone other than the individuals themselves.
The individuals appealed the order for costs.
The Court of Appeal ruled that the stipulation that the indivuals themselves had to pay the costs was not appropriate in the circumstances.
The appeal court stated that there was no suggestion that the TWU had encouraged the individuals to breach the injunction and it disagreed with the judge's view that the union's payment of the court costs might be interepreted as condonation of the misconduct.
In his reasons the trial judge had also opined that the majority of union members might not approve of using union funds to pay the court ordered costs. This consideration, said the court of appeal, was not appropriate for a court and it was best left to the union members and their executive.
One of the interesting, and troubling, features of the legal saga around this strike is the extent of judicial activism in the prosecution of the contempt by the BC Supreme Court. The Court of Appeal makes reference to it at paragraph 33
"Here, the trial judge was advised by counsel that these parties had not been engaged in a labour dispute of this magnitude for over 25 years. The parties settled their dispute, and it was only at the behest of the trial judge that Telus pursued an order for costs. It did not seek an order in the terms of paras. 16 and 17. In our view, there is nothing in these facts to give rise to a real concern that members of the union would be encouraged to engage in further contumacious conduct simply because the TWU expressed a willingness to pay the costs of the appellants in this case." (emphasis added).
I regularly advise union locals that it is good practice, where there have been injunctions and there are actual or potential contempt proceedings, to seek to include in the back to work agreement a provision for a joint submission in the court proceedings. Specialized labour relations tribunals such as the LRB and labour arbitrators understand that, at the end of a labour dispute, the main objective of the parties is to get the business up and running by getting everyone back to work and start to rebuild the damaged labour/management relationship. Consequential court proceedings that drag on for years and that impose on the parties remnants of discord are not very helpful to this objective.
The case may be found at the following link:
http://www.courts.gov.bc.ca/Jdb-txt/CA/08/01/2008BCCA0144.htm
Originally 71 persons were arrested for breach of the order of Mr. Justice Burnyeat of the BC Supreme Court that restricted picketing. By the time things worked themselves through the justice system, eleven persons were found guilty of contempt and in March 2006 the sentences were handed down. These ranged from fines of $300 to $1000 payable to designated charities and 50 hours of community service. One person was given a one month suspended sentence, a fine of $1500 and ordered to provide a written apology. Costs were ordered against each of the eleven individuals. In response to a question from the judge, the union stated that it intended to assist with payment of the costs, but not the fines. So, the judge included in his order a stipulation that the fines and costs could not be paid by anyone other than the individuals themselves.
The individuals appealed the order for costs.
The Court of Appeal ruled that the stipulation that the indivuals themselves had to pay the costs was not appropriate in the circumstances.
The appeal court stated that there was no suggestion that the TWU had encouraged the individuals to breach the injunction and it disagreed with the judge's view that the union's payment of the court costs might be interepreted as condonation of the misconduct.
In his reasons the trial judge had also opined that the majority of union members might not approve of using union funds to pay the court ordered costs. This consideration, said the court of appeal, was not appropriate for a court and it was best left to the union members and their executive.
One of the interesting, and troubling, features of the legal saga around this strike is the extent of judicial activism in the prosecution of the contempt by the BC Supreme Court. The Court of Appeal makes reference to it at paragraph 33
"Here, the trial judge was advised by counsel that these parties had not been engaged in a labour dispute of this magnitude for over 25 years. The parties settled their dispute, and it was only at the behest of the trial judge that Telus pursued an order for costs. It did not seek an order in the terms of paras. 16 and 17. In our view, there is nothing in these facts to give rise to a real concern that members of the union would be encouraged to engage in further contumacious conduct simply because the TWU expressed a willingness to pay the costs of the appellants in this case." (emphasis added).
I regularly advise union locals that it is good practice, where there have been injunctions and there are actual or potential contempt proceedings, to seek to include in the back to work agreement a provision for a joint submission in the court proceedings. Specialized labour relations tribunals such as the LRB and labour arbitrators understand that, at the end of a labour dispute, the main objective of the parties is to get the business up and running by getting everyone back to work and start to rebuild the damaged labour/management relationship. Consequential court proceedings that drag on for years and that impose on the parties remnants of discord are not very helpful to this objective.
The case may be found at the following link:
http://www.courts.gov.bc.ca/Jdb-txt/CA/08/01/2008BCCA0144.htm
Wednesday, April 2, 2008
Court upholds permanent last chance agreement
In a decision issued on March 26, 2008 the Honourable Madam Justice Lynn Smith upheld the award of Arbitrator Blasina in CUPW -and- Canada Post to "suspend" an employee's termination so long as he complied with the terms of a last chance agreement that was to last during the rest of the grievor's employment.
The union sought judicial review of the decision arguing that making the last chance agreement permanent was contrary to the Canada Human Rights Code because it subjected the grievor to higher standard of conduct than other employees on the basis of his disability. In addition the union challenged the power of the arbitrator to take into account expert evidence he had heard in other cases about the nature of addiction.
The judge ruled against the union on both grounds. The most interesting ground, for the purpose of labour relations, is the human rights discussion, brief as it is, in the judgment. The judge found that the decision of the arbitrator was "intelligible and fell within the range of possible, acceptable outcomes which are defensible in this case".
The factual underpinnings of this conclusion are set out in paragraph 62:
"The Grievor had, over a five-year period, received accommodation for his disability and assistance in overcoming it. He had told the employer that he continued to have a problem with his addictions, and that he did better when he was subject to terms and conditions. The reasoning process of the arbitrator was sufficiently clear. There was evidence before him (without reference to the evidence from other hearings that he mentioned) upon which he could reasonably conclude that the remedy he fashioned amounted to reasonable accommodation as that concept is defined in human rights jurisprudence. There was evidence before the arbitrator upon which he could reasonably conclude that conditions of shorter duration would be ineffective and would impose undue hardship on the employer. "
The case is also important as it contains a good discussion of the impact of the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9. In that case, the SCC eliminated the "patently unreasonable" test that had plagued legal minds for eons. Madame Justice Smith discusses how in the remaining "reasonableness test" there are gradations of deference and quotes from the relevant passage from the SCC decision:
"Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."
The decision may be found at
http://www.courts.gov.bc.ca/Jdb-txt/SC/08/03/2008BCSC0338.htm
The union sought judicial review of the decision arguing that making the last chance agreement permanent was contrary to the Canada Human Rights Code because it subjected the grievor to higher standard of conduct than other employees on the basis of his disability. In addition the union challenged the power of the arbitrator to take into account expert evidence he had heard in other cases about the nature of addiction.
The judge ruled against the union on both grounds. The most interesting ground, for the purpose of labour relations, is the human rights discussion, brief as it is, in the judgment. The judge found that the decision of the arbitrator was "intelligible and fell within the range of possible, acceptable outcomes which are defensible in this case".
The factual underpinnings of this conclusion are set out in paragraph 62:
"The Grievor had, over a five-year period, received accommodation for his disability and assistance in overcoming it. He had told the employer that he continued to have a problem with his addictions, and that he did better when he was subject to terms and conditions. The reasoning process of the arbitrator was sufficiently clear. There was evidence before him (without reference to the evidence from other hearings that he mentioned) upon which he could reasonably conclude that the remedy he fashioned amounted to reasonable accommodation as that concept is defined in human rights jurisprudence. There was evidence before the arbitrator upon which he could reasonably conclude that conditions of shorter duration would be ineffective and would impose undue hardship on the employer. "
The case is also important as it contains a good discussion of the impact of the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9. In that case, the SCC eliminated the "patently unreasonable" test that had plagued legal minds for eons. Madame Justice Smith discusses how in the remaining "reasonableness test" there are gradations of deference and quotes from the relevant passage from the SCC decision:
"Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."
The decision may be found at
http://www.courts.gov.bc.ca/Jdb-txt/SC/08/03/2008BCSC0338.htm
Friday, March 21, 2008
The Queen v. Transpave--sentencing imposed
On March 17, 2008 a Quebec judge sentenced Transpave Inc. to a fine of $100,000 for criminal negligence causing the death of one of its employees and $10,000 for costs. The Crown and defence made a joint submission indicating to the judge that there was an agreement that this was an appropriate sentence. Although not binding on judges, such agreements are usually followed by the courts.
In imposing the fine, Judge Chevalier noted that since the crime, Transpave had spent half a million dollars to bring its plant up to European safety standards, higher than the prevailing North American standards.
Transpave is a paving stone manufacturer. Twenty-three year old Steve L'Ecuyer died when he was crushed by a machine that had been the subject of WCB safety infraction orders ignored by the company.
The French language version of the decision may be found at http://www.jugements.qc.ca/php/decision.php?liste=28455118&doc=575C44065A501B00
In imposing the fine, Judge Chevalier noted that since the crime, Transpave had spent half a million dollars to bring its plant up to European safety standards, higher than the prevailing North American standards.
Transpave is a paving stone manufacturer. Twenty-three year old Steve L'Ecuyer died when he was crushed by a machine that had been the subject of WCB safety infraction orders ignored by the company.
The French language version of the decision may be found at http://www.jugements.qc.ca/php/decision.php?liste=28455118&doc=575C44065A501B00
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