Carmela Allevato's Labour Law Blog

Insubordination, profanity, unsafe conduct and workplace negligence and Post Traumatic Stress Disorder--some recent BC arbitration awards on discipline

2012-01-31T21:31:00.000-08:00

The following are based on summaries provided by Diane MacLean.

Insubordination

1. Arbitrator John Hall upheld a three day suspension for insubordination in West Fraser Mills Ltd v. Unites Steel Workers [2011] BCCAAA No. 133. The decision appears not to have been posted on CanLii but is available on Quicklaw. The LRB recently dismissed the union's application for review and that ruling  is available free.

The decision contains a good discussion on what must be proved in order to establish that a refusal to follow an order amounts to insubordination.

There are three essential components:
1. a clear order understood by the grievor;
2. the order must be given by a person in authority and,
3. the order must be disobeyed.

In this case the grievor refused to follow two direct orders given to him by the charge hand during his shift in a saw mill.  The refusal was also accompanied by profanity directed at the charge hand and in a meeting with the supervisor.

The union argued that the charge hand was not a "person in authority" based on the collective agreement definition that set out that a charge hand "can exercise job direction in his work area, all of which shall be relayed to him by supervision." The arbitrator ruled that the definition should not be taken literally and that the clause incorporated a more general delegation of responsibility that included authority to direct when employees will take their lunch breaks.

On the matter of the use of profanity, the arbitrator concurred with evolving jurisprudence that rejects the argument that profanity shouldn't attract discipline because it happens to be "common shop talk" in a particular workplace.

The arbitrator found that the discipline was not excessive in the circumstances.

2. In Teck Coal Ltd (Line Creek Operations) v. IUOE Local 115   Arbitrator Mark Brown upheld the dismissal of a three year employee who was involved in an unprovoked altercation with a co-worker. The grievor had a previous disciplinary record for inappropriate behaviour and insubordination.

Unsafe conduct, workplace negligence

3. In Richmond Steel Recycling v. Ironworkers Local 712 [2011] BCCAAA No. 132 Arbitrator Joan McEwen upheld the termination of an employee who failed to comply with the employer's safety policy requiring any employee working more than six feet off the ground to be "tied off". The grievor was seen standing on a conveyor belt some 20 feet above a concrete surface without being secured.

The union argued that although some form of discipline was warranted, discharge was excessive because there were mitigating circumstances. The union alleged that the policy was unevenly applied and that the employer had discriminated against the grievor based on his age and ethnicity. The arbitrator rejected these arguments. The arbitrator also noted that the grievor did not take responsibility for his conduct thus undercutting the argument that he was amenable to the principles of corrective discipline.

4. In Vitalaire Canada Inc. v. Teamsters Local 213   Arbitrator David McPhillips upheld the termination of a short term employee whose negligence in parking the company truck caused it to roll down a hill and push a parked car into a fence and a shed. The arbitrator did not believe the grievor's evidence that he had engaged the air brakes and turned the wheels appropriately. The arbitrator found that termination was not excessive given that the grievor had been employed for one and half years, that his previous disciplinary record included carelessnes about safety and failure to accept responsibility, and that the consequences of his misconduct were serious. In addition the arbitrator noted that the grievor had not acknowledged any responsibility for the incident.

Non-culpable behaviour and PSTD (Post Traumatic Stress Disorder)

5. Arbitrator Emily Burke's decision in Government of BC (Riverview Hospital) v. BCNU issued on December 8, 2011 is worth a good read. The grievor was a nurse who suffered Post Traumatic Stress Disorder as a result of serving in Afghanistan. While taking five psychiatric patients from Riverview on an outing in a van, the grievor dealt with one of the patients inappropriately. The patient became severely disruptive and rather than seeking assistance, the grievor stopped the vehicle, told the patient to get out and left the patient there.
The Arbitrator concluded that while in the normal course this reckless conduct would warrant discipline, the medical evidence established that the circumstances caused the "grievor to lose significant capacity for rational decision making and ability abiliy to perceive other options." As a result there was no cause for discipline and the termination was overturned.

Grievance that would have helped end bullying ruled inarbitrable

2012-01-03T21:16:00.000-08:00

In a decision issued on December 29, 2011 the BC Court of Appeal upheld a ruling of Arbitrator John Hall that a grievance by the BC Teachers' Federation that school districts were not complying with the provincial requirements for student Codes of Conduct was not arbitrable.
After a freedom of information request disclosed in 2007 that most school districts were not complying with the substantive requirements of the Ministerial Order on student Codes of Conduct promulgated pursuant to the Safe School Act, the BC Teachers' Federation filed a grievance. The union was particularly concerned that Codes of Conduct should ensure that they make reference to the specific grounds of discrimination in the Human Rights Act-- gender, race, ethnic origin and sexual orientation, among others. The provision of the Ministerial Order setting out the content of Codes of Conduct was seen as a means of assisting in creating a safe and caring school environment for all members of the school community and as a tool to help end bullying in our schools, including homophobic behaviour.
The employer's bargaining agent, the BC Public School Employers Association objected to the grievance arguing that the Ministerial Order was not employment related and did not form part of the employment relationship captured by the collective agreement. On appeal, the BC Court of Appeal agreed that the grievance was not arbitrable, but stated that the issue of compliance remains unresolved. In other words, simply because the arbitrator can't rule doesn't mean that school districts are in compliance.
It remains to be seen whether school districts will take the initiative and review whether their schools are complying with the Ministerial Order, or whether they will sit back, as they have these past three and half years. The current premier, while still a radio talk show host, championed the annual Pink Shirt anti-bullying day. Will she now give direction to the Minister of Education and ensure that appropriate Codes of Conduct are in place in every school in the province?

October 2011 BC Arbitration Awards of Note

2011-12-22T12:54:00.000-08:00

My colleague Diane MacLean, formerly of the BC Human Rights Tribunal, brought to my attention a number of arbitration awards issued by British Columbia arbitrators during the month of October.   I have provided the CanLii link where it is available.

Summit Logistics v. Retail Wholesale Union Local 580, is a decision of Arbitrator Mark J. Brown in which he dismissed a union grievance that employees were entitled to both severance and post-retirement benefits when a plant closed.  The case contains a discussion of how extrinsic evidence such as bargaining history and past practice can be used in contract interpretation cases. Brown found that while the employees and the union may have believed that they had achieved dual entitlement when they negotiated a stand alone agreement related to the plant closure, such belief was not supported by the express language of the agreement and the extrinsic evidence did not support the existence of mutual intent of the parties.  The lesson from this, of course, is to make sure that the language of an agreement is clear and that both parties have the same understanding of what that  language means.

Kenny Sekhon Contracting LTd, v. Teamsters Local Union 213 (this decision is not yet available on CanLii, but may obtained through Quicklaw), is a decision of Arbitrator Marguerite Jackson, Q.C. issued on October 7, 2011 and dealing with a preliminiry issue of jursidiction under s.104 of the Labour Relations Code. Section 104 of the Code allows either party to refer a matter to expedited aribtration whereby an arbitration must commence within 28 days of referral. However the referral cannot occur until after all of the steps of the grievance procedure (short of aribtration) have been exhausted.   This was an employer grievance that the employer had referred to expedited arbitration and the union made a preliminary objection that the arbitrator was without jurisdiction because because the grievance procedure had not been exhausted. The arbitrator agreed (after 3 days of hearing!). This is a good case to understand the strict requirements of s.104.

Communication Energy and Paperworkers' Union, Local 1123 v. Catalyst Paper (Elk Falls Division), is a decision of Arbitrator James Dorsey Q.C. issued on October 11, 2011 in which he dismissed a union grievance seeking severance on behalf of five employees who were on WCB when the paper mill closed. The collective agreement provided that severance would be paid when an employee lost her job due to a decision to permanently close the paper mill. The arbitrator concluded that the employment of employees on WCB was not terminated even though the mill closed. They continued to be employees. However, the Arbitrator would not rule on whether or not their employment terminated when they were no longer receiving workers compensation benefits and whether they were entitled to the severance allowance at that time as he concluded that these matters were not within the scope of the grievance before him.

Telus Communication v. TWU , is a decision of Arbitrator John Kinzie issued on October 20, 2011 contains an interesting discussion of damages for negligent misrepresentation and when these will be available.

Prince George Citizen v. CEP Local 2000, is a decision of Arbitrator Brown issued October 18, 2011 in which he dismissed a termination grievance.   The grievor was terminated for making threats of violence against other employees to the shop steward, being absent from the workplace without authorization, gross insubordination and not checking e-mails. The union denied that threats were made and while conceding that the grievor's conduct was disrepsectful, they argued that termination was excessive. After applying the tests set out in Wm. Scott [1077] 1 Can. L.R.B.R. 1, the arbitrator upheld the termination for three reasons: he had anger management issues and did not accept assistance offered by the employer, he was not a credible witness and any remorse shown at the hearing was self-serving.

Duty of Fair Representation -- A cautionary tale

2011-12-22T09:08:00.000-08:00

The BC Court of Appeal today issued a major decision, USWA, Local 2009 v. Auyeung, on a union's duty of fair representation (s.12 of the BC Labour Relations Code), that a cautionary tale to us all. A mental lapse nearly twelve years ago is costing the Steelworkers dearly.

The case arose from the closure of a sawmill. The union entered into a complicated settlement of all of the outstanding issues concerning the mill and its closure. The agreement included a fairly standard release of all claims between the parties.

The union’s big mistake was not to think about the Employment Standards Act when it agreed to the release. Section 64 provides extra notice periods for large-scale “group terminations.”
The union later went to the Employment Standards Branch to enforce the members’ s. 64 rights, but the Branch ruled that it had no jurisdiction because the workplace was unionized, and the union must take the issues to arbitration.

At arbitration, the arbitrator ruled that the release of all claims was broad enough to include any claims under s. 64 of the Employment Standards Act.

A group of employees filed a s. 12 complaint at the LRB, saying the union had signed away their right to a significant amount of paid notice. The Board agreed that the union had violated section 12, even though it was a purely unintentional mistake. The union applied for reconsideration, and the recon panel refused leave for reconsideration.

The union went to the BC Supreme Court, seeking judicial review of the LRB’s s. 12 decision, which had put the union on the hook for the thrown-away pay under s. 64. The BCSC refused to overturn the LRB decision. The union then appealed to the Court of Appeal, which released today’s judgment dismissing the union’s appeal.

The decision is important in many ways concerning the process and scope for court review of LRB and arbitration decisions, making those decisions much harder to overturn.

A few of the key points:

• on judicial review, the court will review the reconsideration decision, not the original decision (normally you can’t go to court directly from an original decision without first seeking recon). However, it will need to look at the original decision to tell whether or not the recon decision should be overturned.

• the only issues that the court will look at on review of an LRB decision will be whether the process was conducted fairly, and whether the recon panel decision was patently unreasonable (i.e., clearly not supported by reason).

• the court will not pull out elements of the decision for different “standards of review” – that is, even if part of the decision is about an issue where the court would not normally defer to the Board’s expertise if viewed in isolation, the decision as a whole including that part of it will all enjoy considerable deference (i.e., leeway from the judges).

• recon panels of the LRB should give reasons for their decisions when they refuse leave. (However, the amount of detail they have to give in their reasons may not be very great, in view of the decision of the Supreme Court of Canada last week in the Newfoundland Nurses case.)

• if you get a decision of the LRB overturned at recon, and the reconsideration panel sends it back to the original panel for re-hearing, if you want to challenge the re-hearing decision of the original panel you should go directly to the court. You probably don’t need to go through a second reconsideration proceeding.

(This summary is courtesy of Jim Quail, legal director of the Canadian Office and Professional Employees Union 378 and is reprinted with his consent)

LRB says no (again) to BCPSEA's 15% Reimbursement in Essential Services Order

2011-12-21T16:05:00.000-08:00

In a decision issued yesterday the Labour Relations Board refused to reconsider an earlier decision that had said no to an application to vary the essential services order covering the current phase of the teacher's strike. In November the bargaining agent for public school districts, BCPSEA asked the LRB for an unprecedent order that the BC Teachers' Federation "reimburse" public school districts 15% of the salary and benefits paid to teachers during the course of a form of "teach-only" strike where teachers are not performing duties that the Board has deemd to be non-essential. In the earlier decision the Board ruled that it is not its role when establishing essential services levels to balance the relative bargaining power of the parties and found that BCPSEA had not made a compelling case to justify a variation of the essential services order that had been the product of agreement between the parties. In yesterday's decision a panel of three members of the Board, including the Chair, rejected BCPSEA's application for reconsideration.

Employers and the media are making much of the reconsideration panel's comments that the approach to essential services developed by agreement of the employers and the union is not working because it is not putting equal pressure on the parties. The Board endorses the view that the resolution to this would be for the parties to move to the Board's more traditional approach to the designation of essential services where levels are established and then the appropriate employees are dispatched by the union to provide the essential service.

However that traditional approach was developed out of years of experience in hospital strikes and with the co-operation and collaboration of key labour and management representatives. Even in that sector however, the notion of a "controlled strike" that balances the right of workers to strike with the responsibility to maintain essential services, is seriously flawed: ambulance paramedics were ordered to work overtime in order to maintain the levels that the Board considered essential and 100% of care staff are invariably required to staff hospitals and long term care facilities during a strike. The ambulance paramedics strike had little effect on the employer and went on for months until the government brought it an end because of the impending Olympics.

In previous LRB hearings both BCPSEA and BCTF rejected the application of the health care model to public schools and it remains to be seen what BCPSEA's position will be in the next round of bargaining when the question of essential services designations comes up again.

Blanket policy to deny/defer all discretionary leaves is a breach of the collective agreement

2011-11-26T15:36:00.000-08:00

In response to teachers' "teach only" job action starting in September, the Surrey School District adoped a blanket policy that it would deny all leaves it considered "discretionary", i.e. not related to sickenss, bereavement and the like, on the basis that it needed to protect its teacher on call list for mandatory leaves. The Surrey School Teachers Association filed grievances and the BC Teachers' Federation also brought a complaint to the Labour Relations Board that the policy amounted to a unilateral alteration of the collective agreement, contrary to the terms of the Essential Services Order and s.73 of the Labour Relations Code that provides that employees working under an essential services order are governed by all the terms of the collective agreement (except where modified by the LRB to facilitate the delivery of essential services). At a hearing of the complaint the parties agreed that the matter would be resolved by way of an expedited hearing before arbitrator Irene Holden. Arbitrator Holden issued her decision earlier this week, but the case has not yet been published on An interesting part of th eprocess wasgrieved the school district's blanket policy that it would deny all leaves, under the collective agreement that it considered "discretionary", i.e. not related to sickness, bereavement or the like. The policy was adopted by the district in response to the teachers' job "teach only job action". The employer alleged that it needed to "protect" its pool of teachers on call during the job action. the collective agreement allows for a numIn an expedited arbitration award issued on November 15, 2011, Arbitrator Holden ordered the Surrey School District to cease denying leave under a blanket policy formulated in response to Phase 1 of the BCTF job action. She concluded that, in all of the circumstances, the School District’s exercise of discretion in denying all leaves it deemed discretionary was not objectively reasonable and constituted a violation of the Collective Agreement. The Arbitrator concluded that such a policy is not warranted in the absence of an immediate risk of serious disruption to educational services. In upholding the BCTF’s General Leave grievance and the Department Head Leave grievance, she ordered the employer to review leaves that were denied under its blanket policy and to “make whole” any teachers who suffered a financial loss as a result of the blanket leave denial policy. Any BCTF members who incurred a loss as a result of the Surrey School District’s blanket leave denial policy should contact the Surrey Teachers’ Association to provide details of the loss incurred.

In the future, the employer is required to review the nature of each individual leave application and assess it based on its own merits having full regard to all of the circumstances, including operational needs. The arbitrator opined that, during the labour dispute, it would be reasonable for the employer to closely scrutinize discretionary leaves in comparison to ongoing TOC usage for mandatory leaves; but that it was unreasonable to impose a blanket moratorium deferring all leaves that it considered discretionary.

As of the date of this post the decision is not yet available on CanLii.

Successor employer must pay outstanding union dues

2011-11-26T15:30:00.000-08:00

In the West Fraser Mills Ltd. (Cariboo Division) v. United Steelworkers, Local 1-424 (Dues Payments Grievance), [2011] B.C.C.A.A.A. No. 108 (No. A-069/11) issued September 5, 2011 arbitrator Robert Pekeles allowed the union's grievance that the employer had failed to remit dues. The following summary is provided by Diane MacLean.

The employer amalgamated with Weldwood in 2005 and became the successor employer. The union and the employer had a Letter of Understanding (“LOU”) confirming an agreement that had been in place since 1955. The LOU provided, in part, that “in regard to logging contractors employed by the Company in the Quesnel area”:

We shall hold our uncertified logging contractors responsible to abide by the relevant portions of the present Agreement, in particular as it regards wage scale, holiday pay and seniority clauses. Dues for all employees and a list of employees for whom dues are submitted must be submitted to the Local Union once a month, without application for Union membership.

Dues deductions went smoothly until 2006, when the logging contractors started logging not only on the old Weldwood forest tenures, but also on some West Fraser tenures. At some point, dues from some of the logging contractors were no longer being remitted to the union, without any explanation. At the hearing, the employer said that dues were no longer payable and the LOU no longer applicable because the tenures were untraceable and the contractors were logging on all of the tenures, i.e., tenures previously held by West Fraser and those previously held by Weldwood.

The arbitrator stated that “the primary resource for determining the mutual intention of the parties is the language of the Collective Agreement itself.” Given the age of the agreement (since 1955), there was no evidence of negotiation history, but there was evidence as to practice. The arbitrator said he had no doubt about the proper meaning of the collective agreement language in question:

I agree that under the terms of the Collective Agreement, the “Company” was Weldwood (Cariboo Division). In 2005, Weldwood and West Fraser merged. The Employer became the successor employer. As such, the Employer became bound by the Collective Agreement. The Letter of Understanding is part of the Collective Agreement. Thus, just as Weldwood (Cariboo Division) was bound by the Letter of Understanding “in regard to logging contractors employed by the Company in the Quesnel area”, so the Employer became so bound. Just as Weldwood (Cariboo Division) was bound to “hold our uncertified logging contractors responsible to abide by the relevant portions of the present Agreement”, so the Employer became so bound.

The arbitrator did not accept the employer’s argument that the agreement did not apply to contractors who no longer logged exclusively on tenures held by Weldwood. The important issue was whether the logging contractors were employed in the “Quesnel area”. The arbitrator order the payment of the dues with interest.

BC Supreme Court upholds Criminal Code sanction against polygamy

2011-11-26T15:21:00.000-08:00

Earlier this week the chief justice of the BC Supreme Court issued his decision in the Reference re: Section 293 of the Criminal Code of Canada in which he ruled that, except in so far as s.293 of the Criminal Code extended to persons under 18, it was consistent with Canada's Charter of Rights and Freedoms. Opponents of the criminalization of polygamy argued that it infringed the protected freedom of religion and freedom of association. The court found that while the s.293 of the Criminal Code did amount to a limitation on those freedoms, the limitation was justified under s.1 of the Charter as it sought to prevent the harm to women, children, society and the institution of monogomous marriage that was caused or potentially caused by polygamy. The decision goes to great lengths to limit criminalization only of those persons who enter into a formalized conjugal relationship or union. The decision is highly likely to be appealed to the Supreme Court of Canada. The genesis of the decision is the inability of the provincial government to deal with polygamy in the community of Bountiful, British Columbia.

Arbitrator denies union grievance over calculation of prep time for university teaching assistants

2011-11-17T13:41:00.000-08:00

In Simon Fraser University v. Teaching Support Staff Union (Preparation Time Grievance), [2011] B.C.C.A.A.A. No. 107 (No. A-068/11) Arbitrator Judi Korbin denied grievances by the Simon Fraser Teaching Support Staff Union relating to the employer's failure to provide preparation time as provided by the Time Use Guideline in the collective agreement. There was evidence that the union had failed to enforce the provision relating to what constitutued the definition of base units for the purpose of determining preparation time over many years. The union sought to provide a context for the issue and the lack of historical enforcement by arguing that “TA services are provided by graduates students, on short-term assignment, with no seniority rights or right to reappointment, working for professors on whom they rely for the references critical to their future.” The union submitted that both a plain reading of the collective agreement and a consideration of bargaining history illustrates the parties’ common understanding of preparation time requirements. The Employer argued that the collective agreement contemplated flexibility and variability and that the employer's methodology was "both long-standing and ungrieved" despite the union being fully aware of it.
Arbitrator Korbin concluded that the plain reading of the language did not support the union's position and the past practice and bargaining history did not indicate that the employer shared the union's interpretation of the language.

(with thanks to Diane MacLean for her contribution)

LRB overturns decision of a Claims Review Committee

2011-11-17T13:24:00.000-08:00

Vice Chair Elena Miller's decision in Matson v. Interior Health Authority issued on November 15, 2011 will be of interest to those unions where long term disability claims are adjudicated by a claims review committee. This regime is to be found in the health care collective agreements, the provincial public service and other, primarily, public sector collective agreements where the plan is self-funded but its administration is contracted to one of the usual insurance companies. It is well established that these committees, made up of three doctors whose jurisdiction is limited to reviewing medical decisions, fall within the broad definition of an arbitration board and their decisions are reviewable pursuant to s.99 of the Labour Relations Code.

The Vice Chair set aside the decision and remitted the matter back to the committee because the CRC's decision did not provide reasons which allowed the basis of the decision to be understood. The LRB stated that while the decision recounted a lot of evidence, there was no link or "meaningful references or connections ...made between that evidence and the conclusion that Matson is not totally disabled from any occupation."

It is a useful decision to consider when assessing whether to pursue a s.99 review of a CRC decision, particularly where there vague allegations that a claimant may be feigning the disability.

Denial of sick leave benefits leads to damages for mental distress

2011-11-14T22:41:00.000-08:00

In Fortis v. IBEWarbitrator Mark Thompson awarded damages of $5000 for mental distress based on the principles set out in 2006 by the Supreme Court of Canada in Fidler v. Sun Life Assurance Co. of Canada. In that case the SCC upheld an award of $20,000 for damages for mental distress suffered by Ms. Fidler as a result of Sun Life's unwarranted delay in paying out long term disability benefits.
The Fortis decision contains a very useful summary of arbitration awards that have applied Fidler . The arbitrator concludes that damages for loss of sick leave benefits should "be granted when there is medical evidence of a connection between the stress or other psychological conditions (“mental distress”) and the actions of the employer or insurance carrier."

On the facts before him Arbitrator Thompson made the following findings:

Damages in this context are not a punishment to the Employer, but compensation to the employee.

Based on the evidence presented, I conclude that Mr. Pearson’s inability to obtain sick leave when he and his physicians believed that he should not be working caused Mr. Pearson to suffer mental distress as the term is used in Fidler. Dr. Lowden testified that he knew of Mr. Pearson’s difficulties with Manulife were stressful to his patient, and he thought that that this stress made his pelvic pain worse. Dr. Jewett was asked if Mr. Pearson’s lack of financial support because of his problems in obtaining sick leave had an impact on his health and ability to work. Dr. Jewett responded that he is not a psychiatrist, but he thought someone in Mr. Pearson’s job should be at his psychological best. Dr. Schieman wrote a letter to Dr. Lowden in October 2009 stating that the disagreement between Mr. Pearson and Manulife was causing him stress. Consequently, Dr. Schieman was to write another letter to Manulife concerning Mr. Pearson’s medical condition.

I believe the evidence of the three physicians involved in Mr. Pearson’s illnesses constitute the “medical evidence” as contemplated by the Court in Fidler, and the second condition in para. 47 of that case. It is consistent with the conclusions of other adjudicators who have been asked to answer similar questions. This evidence demonstrates that Mr. Pearson suffered mental distress because of a violation of the sick leave provisions of the collective agreement. Therefore, I conclude that damages are warranted. As I have noted above, I do not conclude that either Manulife or the Employer acted unreasonably or egregiously. Under these circumstances, I conclude that an award of $5000 in damages is appropriate

(with thanks to Diane MacLean for her contribution)Fortis v. IBEW

Arbitration award balances employees' privacy interests and employer's legitimate business objective

2011-11-14T22:37:00.001-08:00

Below is a summary of the arbitration award issued by arbitrator Heather Laing on August 12, 2011 in the case of Spectra Energy v. Canadian Pipeline Employees' Association prepared by Diane MacLean.

Summary

The employer introduced a policy which required employees who drive company owned, leased, or rented vehicles an average of one or more times per week, to give consent to the employer to access their B.C. Motor Vehicle Records.

The union argued that the policy was not reasonable and violates the employees’ privacy rights. The union said the appropriate analysis is twofold: Is the policy reasonable and what is the balance between the employer’s need for information and the employees’ right to privacy? If the balance favours privacy, then the policy is not reasonable and cannot be implemented. The union argued that the policy was not reasonable for the following reasons: no evidence of any increase in safety incidents or that the application of the policy would result in a safer workplace; no evidence that the company’s existing safety programs, combined with programs of third parties, are insufficient or inadequate to address the employer’s safety concerns. As well, the union argued that there was no evidence that off duty driving conduct is a good predictor of behaviour at work and that there are less intrusive ways to accomplish the employer’s goals.

The employer argued that the policy was issued in aid of a company core goal of safety. The policy is justified because it is a reasonable safety initiative and improving performance is a reasonable way to minimize risk (high risk drivers would be required to take further training).

The arbitrator identified the issue as “how to properly balance the privacy rights of employees in relation to the legitimate business interests of the employer.” A review of the arbitral jurisprudence reveals some basic principles had been developed:

• Each case is dependent on its own facts and is to be decided on the basis of the particular circumstances involved;

• The nature and significance of the particular privacy rights and the employer’s business interests in issue must be clearly identified and carefully weighed;

• Privacy rights arising from the application of statute and regulation are given greater weight than rights created in a particular workplace under the terms of a given collective agreement; and

• An arbitrator’s inquiry into the merits of an alleged intrusion into a privacy right established by statute or regulation should take into account the public interest that may be involved.

Both parties referred to Arbitrator Smith’s findings in Re Finning International Inc. and International Association of Machinists and Aerospace Workers, Local 99 (2004), 135 L.A.C. (4th) 335. The arbitrator noted that it provided “a carefully reasoned analysis and approach based on a thorough review of the arbitral principles to be applied” and was directly applicable to the facts and circumstances of this case. In regard to who bears the burden to prove the rule was reasonable, the arbitrator in Finning stated:

… if the Union establishes that the rule infringes a legitimate right of privacy, the Employer must demonstrate that it is reasonable in the sense of being rationally connected to and advancing a legitimate business purpose which outweigh the employee’s right to privacy.

The arbitrator in this case noted that the employer:

… produced insufficient evidence and no demonstrable reasons that provide a factual basis for the intrusion into the privacy rights of the employees. The employer has the burden of establishing the reasonableness of the rule “… having regard to the availability of less intrusive alternatives.””

In particular, the arbitrator found there was no evidence that safety was a growing or newly urgent problem for the employer. As well, in British Columbia, the requested records are personal and are protected by statutory privacy rights. Finally, although the employer was to be commended for being safety conscious, there were alternative ways of achieving this goal without intruding on the privacy rights of employees. The arbitrator concluded:

I find the policy is over reaching and goes over broad; it requires employees to produce information that as a matter of law is personal to them. No reasonable basis for such interference with the employees’ rights has been established. The net effect is that the policy, which requires an employee to sign a consent form, is at variance with the public policy in this province designed to protect such personal information. Arbitrators should not interfere with such important rights, absent compelling circumstances. No such situation exists here.

(Note: some of the union’s privacy concerns are interesting. The policy was going to be assigned to another company which was a subsidiary of an American company. This company would receive the records, assess who was a high-risk driver and then contact the employer to provide a Driver Improvement Plan. The union’s witnesses where concerned about where the information was being sent, who would have access to it and for what reason would the information be used. In particular, they expressed concern about:

• The number of the employer’s employees who would have access to the information;

• The contracting company’s computerized system and if it could result in identity theft;

• Since the contracting company was a subsidiary of an American company, would it be required to provide employee’s personal information to Homeland Security?

• Once they signed the consent form, it appeared that it would not be sought again annually, and that the original consent could be used to access records at any time thereafter;

• Why was the employer asking for information about off-duty driving when it already had information about on-the-job driving?

• Why were other safety initiatives, that did not involve a violation of privacy rights ,not being implemented?

• That information provided by the employer said that a Driver Improvement Plan could include revoking or limiting driving privileges which could affect an employee’s job.)

Relocation of work not considered a layoff under the terms of the DHL-CAW collective agreement

2011-11-14T22:37:00.000-08:00

Arbitrator Colin Taylor denied a grievance by CAW Local 114 that DHL's relocation of its courier work from Vancouver to Richmond triggered the severance provisions of the collective agreement.

DHL Express (Canada) Ltd. v. CAW-Canada, Local 114, the union was notified that the employer would relocate its operations to Richmond. All hourly employees would go with the work and owner operators (of the vehicles that pick up and drop off deliveries) would now begin and end their day at the new site. The employer also offered to pay severance to employees whose positions were abolished as a result of the relocation. The union grieved arguing that the relocation was a "facility consolidation" within the meaning of a Letter of Understanding negotiated by the parties to provide employees severance benefits "for closures, contracting out, facility consolidation and re-routes".
Arbitrator Taylor ruled that there "was no layoff, actual or otherwise" and that merely moving from one terminal to another within the same Branch with no loss of seniority, hours or interruption in the work was not the impact contemplated by the parties' agreement.

(with thanks to Diane MacLean for providing content)

Update on arbitrations thanks to Diane MacLean

2011-11-14T22:33:00.000-08:00

With this posting I'd like to introduce Diane MacLean who has very kindly offered to help keep this blog up to date by reviewing BC arbitration awards and Labour Relations Board s.99 reviews.

Diane Maclean attended S.F.U. and earned a B.A. and M.A. in economics. Her major interests were labour relations and the economics of poverty and discrimination. Diane taught economics at the college and university level before attending law school at U.B.C.

Prior to working for the provincial government, Diane worked as an economic researcher and writer. For example, she researched and prepared briefs for a group of arbitrators regarding proposed changes to the Labour Relations Code and for a group of trade union women regarding proposed changes to the Employment Standards Act. She also did legal research for law firms specializing in labour law.

Diane then spent many years as an Employment Standards Officer and Industrial Relations Officer for the B.C. Ministry of Labour, investigating and mediating complaints under the Employment Standards Act and the Human Right Code, conducting certification and decertification votes under the Labour Relations Code, and conducting grievance mediations for the B.C. Collective Agreement Arbitration Bureau. More recently, she was a Member of the B.C. Human Rights Tribunal for five and one-half years. At present, Diane is self-employed, working as a mediator and doing legal research and writing in the areas of labour, employment and human rights.

Welcome Diane!

Canada Human Rights Tribunal has no authority to award legal costs, SCC rules

2011-10-30T21:55:00.000-07:00

On October 28, 2011 the Supreme Court of Canada issued a decision in Canadian Human Rights Commission and Donna Mowat v. Canada (AG) in which it ruled that the Canada Human Rights Tribunal has no jurisdiction to award compensation for legal costs incurred by human rights complainants. The Court found that s. 53(2) of the Canada Human Rights Act, the provision that contains the authority compensate for "any expenses incurred by the victim as a result of the discriminatory practice” does not include compensation for legal costs incurred to prosecute a complaint.

The BC Human Rights Act contains a similar provision at s. 37(2)(d) and the BC Human Rights Tribunal has also awarded legal costs to complainants in particularly egregious cases. See for example http://www.bchrt.bc.ca/decisions/2008/pdf/oct/376_Senyk_v_WFG_Agency_Network_(No_2)_2008_BCHRT_376.pdf. Undoubtedly the Supreme Court of Canada ruling in this case will have a significant impact in our province as well.

Employer who exposed workers to asbestos found guilty of contempt

2011-10-20T21:27:00.000-07:00

"Arthur Moore exposes his workers to asbestos, a deadly substance, without protection and upon forged hazardous-material reports that conceal the danger. He exploits young recovering addicts as his workforce." So begins WCB v Moore a unanimous judgment issued to-day by the BC Court of Appeal. After several unsuccessful attempts to have Moore stop this practice, the Workers' Compensation Board obtained a court injuction. But Moore continued and WCB made an application to the BC Supreme Court citing Moore "doing business as AM Environmental" for contempt of the injunction.
The BC Supreme Court judge refused to make the contempt order on the basis that the reference to "doing business as AM Environmental" created an ambiguity or confusion. WCB appealed to the Court of Appeal.

Writing on behalf f the court, Mr. Justice Donald reviewed the law relating to contempt:
16] A concise and most helpful summary of the principles applicable to the interpretation of an order in contempt proceedings is found in R. (Mark Dean Harris) v. The Official Solicitor to the Supreme Court, [2001] EWHC Admin 798 (Q.B.D.), wherein Mr. Justice Munby stated (at para. 68):

(i) No order will be enforced by committal unless it is expressed in clear, certain and unambiguous language. So far as this is possible, the person affected should know with complete precision what it is that he is required to do or to abstain from doing.
(ii) It is impossible to read implied terms into an injunction.
(iii) An order should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation. Looking only at the order the party enjoined must be able to find out from the four walls of it exactly what it is that he must not do.
(iv) It follows from this that, as Jenkins J said in Redwing Ltd v. Redwing Forest Products Ltd (1947), 177 LT 387 at p. 390,
a Defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken that undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question.

He then went on to find that in the case before him, the terms of the injuction, i.e. the conduct that was proscribed, were very clear. As to the name, he concluded that "doing business as AM Environmental" was surplus as AM Environmental was not a legal entity separate from Moore. The judge also pointed out that Moore did not plead confusion, nor did he appear at the injuction hearing or at the appeal. It was also clear on the record that Moore was at all times aware that WCB had issued an injuction.
The judge found:
I would, in conclusion, find Mr. Moore guilty of contempt. His misconduct grievously endangered workers under his direction. Unless he can in some way mitigate his indifference to the lives and safety of his workers and his open defiance of the injunction, his misconduct requires a severe response.
A warrant was issued for Moore's arrest and the matter was referred back to the lower court to assess a penalty.

Carmela Allevato's Labour Law Blog: Legislation imposing financial limits on pre-election period is unconstitutional

2011-10-20T18:47:00.000-07:00

Carmela Allevato's Labour Law Blog: Legislation imposing financial limits on pre-election period is unconstitutional

Legislation imposing financial limits on pre-election period is unconstitutional

2011-10-20T18:40:00.000-07:00

In yesterday's BCTF et al v. British Columbia the BC Court of Appeal unanimously dismissed the provincial government's appeal of a BC Supreme Court 2009 decision that ruled as unconstitutional legislation that purported to limit "election advertising" during a pre-election period of 60 days. The court agreed with the lower court that the legislation, which breached the Charter guaranteed freedom of expression, was not saved by s.1 of the Charter of Rights and Freedoms. BC's major public sector unions successfully challenged legislated limits on pre-election spending on the basis that the definition of "election advertising" would capture expression aimed at influencing government decisions while the legislature was sitting. British Columbia is one of the few Canadian jurisdictions that has a fixed election date. The Court of Appeal agreed with the lower court that the legislation was over-broad. For further commentary check the BCTF website http://www.bctf.ca/NewsReleases.aspx?id=24109

A decision on "common employer"

2011-10-12T20:38:00.000-07:00

For a discussion of when the board will issue a common employer declaration see Lockerbie & Hole Eastern et al v. Boilermakers et al recently issued by the LRB. Even when all the criteria are met, the Board may nevertheless decline to grant the declaration if it would not serve a labour relations purpose. Here the Board dismissed the union's application because to grant it would have expanded the scope of the union's bargainign rights, rather than merely protecting the rights it had.

Back to blogging--why the long silence?

2011-10-12T20:26:00.000-07:00

Many of my friends have comment about the lack of updates on my blog. I have to confess that it's a lot of work to keep a blog current. My spare time in the last many months has been full of my grandson Henry. But I'm at it again and hope to blog a bit more frequently on decisions of the BC Labour Relations Board, arbitration awards or court cases that I think may be of interest or help to front line shop stewards.

Justice for teachers--BC Supreme Court strikes down contract stripping legislation

2011-10-12T09:53:00.000-07:00

In April, 2011 the BC Supreme Court struck down 2002 legislation that was the cornerstone of the provincial government's attack on teachers. Bills 27 and 28 not only stripped teacher collective agreements of provisions regarding class size and composition, ratios of non-enrolling teachers and workload provisions but also prohibited these from being the subject of collective bargaining in the future.
The decision follows the groundbreaking Supreme Court of Canada ruling in Health Services .The ruling came at a significant moment for teachers and for the province. The legislation was "proudly" introduced by now Premier Christy Clark who was then Education Minister and a leading member of Gordon Campbell's cabinet (Campbell resigned in disgrace earlier this year after the successful anti-HST campaign). The court gave the provincial government 12 months to address the repercussion of the finding that the legislation was unconstitutional. The period following the court decision was an opportunity for the new Premier to distance herself from the policies of the past government and to show that she really represented a change in direction towards a more fair and balanced style of governing. Instead, the government took the position that the only "repercussion" was that they had to meet with BC Teachers' Federation and explain the government's policy objectives that were the basis for the legislation.
The parties were back in court on October 11, 2011 to seek clarification from the judge and a decision is pending.

POSTSCRIPT October 13: The court decline to issue a clarification. The decision can be found at http://www.courts.gov.bc.ca/jdb-txt/SC/11/13/2011BCSC1372.htm

Variation of a certification--common and not-so common objections

2011-10-12T09:34:00.000-07:00

In the recent decision Canadian Corps of Commissionaire v. PSAC  , Vice Chair Bruce Wilkins dismissed the employer's objections to PSAC's application to vary its multi-site certification to include alarm response drivers who worked out of the Commissionaires' headquarters in Victoria and ordere that the votes be counted.
The employer had three objections to the application to vary. The first was an uncommon objection. The employer argued that there was a clause in the collective agreement that provided these employees would be excluded and could not be organized. Although the Board ruled that the provision did not mean what the employer suggested, Vice Chair Wilkins went on to comment that the right of employees to access collective bargaining takes precedence over collective agreement provisions.
The second objection was that the unit sought to be varied into the existing certification was not appropriate as it did not include other employees in the response centre. In dismissing this objection the Vice Chair applied the test in Island Medical Labs B308/93.  This decision is a nice and clear application of what is often a counfounding and elusive test.
The final objection had to do with the number of employees who cast their vote in the variation. The employer argued that because less than 50% of employees had turned out to vote, the results would not represent the will of a majority of the employees and a new vote should be ordered. Vice Chair Wilkins reviewed the applicable law that indicates that a low voter turnout is not enough. There must be other factors present, such as lack of adequate notice, in order to satisfy the test for the ordering of a new vote.
The Board ordered that the ballot box be unsealed and the vote be counted. (Note: when there is an objection to a certification or variation of a certification this is usually heard after the vote has been held)

BC Supreme Court overrules LRB and allows picketing

2011-04-12T20:01:00.000-07:00

Kudos again to my colleague Chris Buchanan of Hastings Labour Law for fighting the good fight at the BC Supreme Court and taking on the clearly wrong LRB decision in UFCW v. Pollyco and Loblaw that I blogged about earlier this year.
In a decision handed down on April 11 the BC Supreme Court overturned a BC Labour Relations Board decision that granted Loblaws standing in a picketing decision without allowing the union the opportunity to make a submission on the issue. The BCSC decision can be found at UFCW 1518 v. LRB and Pollyco and Loblaws. As a result of the decision the prohibition against picketing has been lifted and hopefully the union will be able to exert sufficient economic pressure on the Loblaws and its franchise holder to bring this dispute to an acceptable solutions.

Hiding behind semantics--LRB rules that private health employer doesn't have to disclose financial information

2011-04-07T23:16:00.000-07:00

A reconsideration panel comprised of long-serving LRB Chair Brent Mullin and vice-chairs Alison Matacheski and Ritu Mahil upheld an earlier board decision refusing to order the operators of Inglewood Private Hospital and Pine Grove Care Centre to disclose their financial information. In the course of collective bargaining the employer rejected HEU's wage increase citing the government's zero mandate for the public sector and the fact that it had not received any increase in its funding from the health authority. HEU sought disclosure of the employer's audited financial statements for the year 2009 for the facilities as well as a projected budget for 2010, including any forecasts of cash flow and income for 2010 and beyond. The employer refused and the union filed a complaint with the LRB that the employer was bargaining in bad faith. The LRB dismissed the union's complaint in a ruling that found that the employer was not asserting that it did not have an inability to pay, it was simply saying that it did not want to pay the increases the union was seeking.

In Simpe 'Q' Care Inc. V. Hospital Employees' Union, 2011 CanLII 17268 (BC L.R.B.) the union was unsuccessful in having the decision overturned. The Board confirmed that unless the context and position of the employer indicate it is unable to pay, as opposed to unwilling to pay, under the current, established approach to collective bargaining the obligation of financial disclosure does not arise.

Obviously, either the "current, established approach" needs some serious revision or the Board's application of the approach needs to be revisited. In the face of the facts of this case where there appeared to be a direct link between the rejection of the demand and the level of funding from the health authority, it is difficult to see why there was no obligation to disclose.

Freedom of Expression and the City of Vancouver

2011-04-07T19:40:00.000-07:00

After the BC Court of Appeal struck down a Vancouver by-law that purported to ban the Falun Gong protests in front of the Chinese consulate, city staff drafted amendments to the bylaw which can be found at http://vancouver.ca/ctyclerk/cclerk/20110407/documents/penv1StructuresforPublicExpressiononCityStreets.pdf

One hopes that city councillors will reject the proposal which appears to be specifically designed to prevent political protest through the erection of temporary structures (such as a free standing sign) in residential areas which interestingly include the very Granville street address of the Chinese consulate.

However, that is not the only distasteful aspect of this bylaw. Other rules include the requirement to apply for a permit, to pay a fee of $200, and to take down the structure after 5 p.m. (as if political expression ends after hours).

The proposed bylaw amendments are ill advised and councillors should direct staff to go back to the drawing board and come up with recommendations that respect the right to political protest. Everyone should keep in mind how precious our right to free expression is...just think of Egypt.

LRB orders employer to provide information to the union

2011-03-29T19:55:00.000-07:00

In Port Transport Inc and CAW, a decision issued by the LRB on March 23, 2011 Vice Chair Topalian declared that Port Transport Inc had committed an unfair labour practice by refusing to provide the union with the following information:
a) a current contact list containing the names, addresses, telephone numbers and e-mail addresses of all members of the bargaining unit,
b) specific information on each bargaining unit member including name, date of birth, benefit coverage (single,family, enrolled, not eligible, etc.), wage rate(s), premium(s),job classification(s) and any other form of remuneration including but not limited to vacation entitlement, and any profit-sharing, incentive or bonus plans in effect, and
c)actual data on usage and cost on all areas of any benefit plan for the past three (3) years.

The employer argued that it was not obliged to provide this information without the written consent of each affected employee. The union argued that it required the information in order to engage in rational discussions at collective bargaining and to properly cost out its proposal in relation to wage rates, premiums and benefits. It also said that it required the information to be able to communicate with the members of the bargaining unit and discharge its obligations under the Labour Code. The employer had not provided any sound business concerns for not disclosing the information requested.

Vice Chair Topalian reviewed the Board's jurisprudence in P.Sun's Enterprises B301/2003 and in The Governor and Company of Adventurers of England Trading into Hudson's Bay, (my favourite case name of all time!) B226/2004, and ordered the employer to provide the information.

This is a very good decision that unions should take note of and apply as they prepare for collective bargaining.

LRB dismisses BCNU's application to represent LPNs

2011-03-14T22:20:00.000-07:00

BCNU v. Interior Health Authority, Community Health Bargaining Association, UFCW and BCGEU issued on March 11, 2011 by the LRB is a decision of much interest to BC health unions and their members, and indeed to the broader labour movement in our province.

BCNU applied to represent Licensed Practical Nurses working in community health for the Interior Health Authority. The application was opposed by BCGEU, the UFCW and the employer. In the workplaces that were the subject of the application UFCW already represented support staff, including the LPNs. Thus this constituted a "raid" application under the Code (and also under the rules of the Canadian Labour Congress).

Vice Chair Saunders dismissed the application on the basis that it would fragment the bargaining unit and that, although the health sector labour relations legislation provides for multiple bargaining agents in a bargaining unit, it does not envision that there would be sole-classification certification. Even if the LPNs could be carved out based on their professional responsibilities, the Vice Chair found that it would not be appropriate in the circumstances.

In my view, unless overturned on review (highly unlikely), this decision is the deathknell to the success of any possible future reattempt on the part of BCNU to go after HEU’s LPNs who work in hospitals and long term care facilities.

BC Court of Appeal--standard of review of Human Rights Tribunal Decisions

2011-03-14T21:56:00.000-07:00

In Lavender Co-Op Housing the BC Court of Appeal today upheld a lower court's decision that overturned the BC Human Right's tribunal finding of prima facie discrimination on the basis of marital status against the membership rules of a cooperative housing society.. For those interested in the "standard of review" this is a good case on the applicable standard to questions of "mixed law and facts" (and yes, it is correctness). For the rest of us, the case confirms that prima facie discrimination is established not by a comparative analysis, but by determining whether the conduct complained of is prohibited under the Human Rights Code by definition.

First collective agreement--retroactive imposition is okay

2011-03-07T22:01:00.000-08:00

In Osprey Care v. HEU issued on March 1, 2011, Vice Chair Ritu Mahil of the BC LRB dismissed Osprey’s application for review of an arbitrator’s decision in which, in the course of imposing a first collective agreement under s.55 of the Code, Arbitrator Vince Ready made the collective agreement retroactive to February 24, 2010 and set out an expedited process by which certain outstanding grievances would be resolved. The employer argued the arbitrator exceeded his jurisdiction.

Prior to the appointment of Vince Ready as binding mediator/arbitrator, a mediator had been appointed under s.74 of the Code and issued non-binding recommendations for a first collective agreement. The union accepted those recommendations on February 24, 2010. The employer rejected the recommendations and Mr. Ready was appointed in March 2010 to mediate/arbitrate the collective bargaining dispute. Mediation failed.

At the arbitration the employer stated it had changed its position; it now accepted the first mediator's recommendations and therefore there was nothing more to arbitrate. HEU did not agree asserting that the arbitrator had authority to deal with the effective date of the collective agreement and with the employment disputes that had arisen between the parties. The Board upheld Mr. Ready’s award, finding that the Board’s previous decision in Royal City Manor B27/95 established that s.55 arbitrators could impose first contracts retroactively. Further Vice Chair Mahil ruled that a purposive interpretation of s.55 allowed the arbitrator to not only impose a first collective agreement, but to address “seething issues” between the parties in order to aid the “goal of establishing enduring bargaining relationships”. The order that outstanding disputes be resolved by a process of expedited arbitrations was upheld.

One should note that Vince Ready was one of the three members of the Commission appointed by the NDP government in 1991 that recommended revisions to the Labour Code, including the current first collective agreement provisions found in s. 55 of the Code.

Osprey Care is a for profit care facility in Kamloops.

Extras Casting Directors can't be unionized, according to the BC LRB

2011-02-28T22:22:00.000-08:00

In a decision issued on February 25, 2011 the LRB declined an application by
the BC Film Council to vary its certification with the employer group Canadian Affiliates of the Alliance of Motion Picture and Television Producers (on behalf of Mo Pie Productions Inc. and Disk Productions Ltd.) to include employees who cast extras in film and television production. The employer argued that these were independent contractors and therefore fell outside the Code. Associate Chair Michael Fleming agreed with the employer, finding that while these individuals shared many of the key features of other unionized employees or dependent contractors (who are also able to be organized under our Labour Code), they were not typically economically dependent on any one production company at a time. Fleming writes:

“In that sense, it is not possible to identify an employer, as is typically the case with other film industry employees. This, along with the other factors and considerations described above, leads me to conclude that they fall on the independent contractor rather than the dependent contractor side of the line."

Fleming acknowledges the inequality in bargaining power between these individuals and the production companies and says that he understands “the desire on the part of the ECDs to obtain the benefits associated with collective bargaining and the Film Council’s considerable efforts to assist them in that regard.” Unfortunately, sympathy is not enough.

LRB upholds decision to terminate LTD benefits

2011-02-28T22:03:00.000-08:00

In Dewell v. BC Public Service Agency Vice Chair Adam dismissed a grievor’s application for review of the decision of a claims review committee that upheld cutting off her long term disability benefit. Under a number of BC public sector collective agreements (public service and health for example) medical disputes about long term disability are adjudicated by a panel of doctors. The LRB has ruled that such decisions fall within the definition of an arbitration which is reviewable under s.99 of the Code and the usual tests for review apply. In this case the grievor alleged that she had been denied a fair hearing.
An interesting feature of this case is that the union did not participate in the application. While a union has exclusive conduct of a grievance through all of its steps, including arbitration, the Code allows grievors who are unhappy with the results of an arbitration award to bring an application to the LRB independently of the union.

The case also contains a good summary of when an arbitration award may be challenged on the basis of new evidence. Adam quoted from a previous court decision as follows:

In addition to the requirement that the proposed new evidence go to the heart of the issues to be determined by the arbitration board and that the new evidence could not have been obtained by the exercise of due diligence, the Board may, in its discretion, wish to consider other factors, including:

(a)The public interest.

(b)The nature of the grievance

(c) Motive of the applicant ...

(d)After discovery of the new evidence was the application to adduce that evidence made promptly?

(e)Does the proposed new evidence relate only to a minor or trivial issue?

(f)Have third parties already acted on the basis of the award?

(g)Was the new evidence obtained long after the handing down of the award?

I do not suggest that this list is exhaustive, or that the application of any of these factors should result in the exclusion of the new evidence in this case.

Psychological Harassment--Progress in Manitoba

2011-02-24T12:06:00.000-08:00

In my blogpost of Tuesday, February 5, 2008 titled, "More on Harassment--lessons from Quebec", I commented on the success of the Quebec legislation that prohibits workplace psychological harassment and I advocated for the introduction of such legislation in British Columbia.

A recent report on the Lancaster House website, and invaluable resources for stewards and counsel alike,  states that Manitoba has joined Quebec, Saskatchewan and Ontario, and amended its Workplace Safety and Health Regulation to add psychological abuse to the definition of workplace harassment, from which employers are required to protect their employees. Under the new Regulation, harassment is defined as :
"(a) objectionable conduct that creates a risk to the health of a worker; or (b) severe conduct that adversely affects a worker's psychological or physical well-being."
"Objectionable and "severe" conduct is also defined:
"conduct is (a) objectionable, if it is based on race, creed, religion, colour, sex, sexual orientation, gender-determined characteristics, marital status, family status, source of income, political belief, political association, political activity, disability, physical size or weight, age, nationality, ancestry or place of origin; or (b) severe, if it could reasonably cause a worker to be humiliated or intimidated and is repeated, or in the case of a single occurrence, has a lasting, harmful effect on a worker."

While the definition is reminiscent of the prohibited grounds of discrimination under human rights legislation, it is much much broader and encompasses some areas which are frequently involved in harassment or bullying, for example, physical size and weight, to name just two.

In the past few days we have been hearing much about bullying and the pink shirt campaign to heighten awareness of the problem and to foster solutions. Our schools and workplaces have seen many people sport the "Stop Bullying" T-shirts.

We need to realize that bullying does not only occur among children. It is equally devastating and brutal among adults. The workplace, with its hierarchical structures is a place where bullying and harassment can sometimes become entrenched in the workplace culture. Placing the protection into legislation articulates societal norms, that such conduct is not acceptable and thus leads not only to easily accessible remedies, but it also ensures systemic prevention.

Isn't it time that other governments, including British Columbia, adopted similar legislation? Of course, it is.

But we need not wait until legislation is in place. Many unions have negotiated provisions in their collective agreement to protect workers from psychological harassment and bullying. In the non-union sector, or where collective agreement protection isn't feasible, employers should be urged to adopt policies that make such behaviour unacceptable.

That's not to say that in the absence of legislation or collective agreement provisions employees who suffer psychological harassment at the workplace have no remedy available.  In such circumstances consultation with a good lawyer may be the first option.

Sexual Harassment--Human Rights Tribunal awards $30,000 damages for unwanted sexual text messages

2011-02-16T20:46:00.000-08:00

In McIntosh v Metro Aluminum Products and another issued by the BC Human Rights Tribunal to-day, Tribunal member Enid Marion awarded a total of $30,000 in lost wages and damages to a woman who complained that her boss' unwanted sexual text messages caused her to quit her job.

The complainant had a sexual relationship with Zbigniew Augustynowicz, the owner of the company where she was employed. When she ended the affair he repeatedly sent her text messages that were sexual in nature and aggressive in tone. These caused to leave her employment and McIntosh filed a complaint with the Human Rights Tribunal. The tribunal found that there had been sexual harassment:

[133] As the owner of Metro, and Ms. McIntosh’s employer, Mr. Augustynowicz was in a position of authority over her. He was responsible for the terms and conditions of her employment and for ensuring that she was employed in a workplace free of sexual harassment. He failed in this responsibility. He repeatedly referred to Ms. McIntosh in a sexually demeaning manner in his communications to her. He knew, or ought to have known, that his sexual comments and propositions were offensive, inappropriate, and unlawful in an employment context.

[134] As consenting adults, Mr. Augustynowicz and Ms. McIntosh were entitled to enter into a sexual relationship, however ill-advised it might be in a workplace given their respective positions. However, once that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh’s working environment.

[135] After considering all the circumstances, including the overall context, tenor and content of the text messages, I find that Ms. McIntosh has proven that she was subjected to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro.

The Human Rights Tribunal, however remains a place where damages for human rights breaches are still relatively low. For example, in this case more than half of the damages awarded were for related to lost wages and only $12,000 were for damages for injury to dignity.

Community Social Services Sector--Essential Services hearing to proceed over employer's objection

2011-02-14T22:04:00.000-08:00

That essential services are a tool for controlling public sector strikes is well established. What is often not considered is that employers will use the process of designation to try to control the timing, as well as the content, of the strike. The objection by the Community Social Services Employers' Agency (CSSEA) heard at the LRB last week that an application by the Community Social Services Bargaining Association for essential services was premature is a case in point. By delaying the essential services designation, the employer wished to prevent the unions from being able to engage in job action to conclude a collective agreement.

The employer also did not want to provide information to the union about normal staffing levels, information needed to assess what is "essential".

The Labour Code contains specific provisions that essential services must be designated before a strike or lock out can occur in some sectors.  In that sense, until essential services have been designated by the Labour Relations Board, a union has no control over when it can start a strike or job action. The commencement of the designation process is in the hands of the Minister of Labour and how quickly, or slowly, it takes is determined by resources at the Labour Relations Board.

The provincial agreement covering employees who work for government funded agencies in the community social services sector expired in March 2010. Since that time the statutory Community Social Services Bargaining Association, made up of unions representing those employees, has been unable to get CSSEA to negotiate seriously towards the conclusion of a new collective agreement.

In December 2010 the Minister directed the LRB to commence the process to determine essential services.   That process too has been stalled.   Unable to get CSSEA's cooperation in providing information about normal staffing levels and in resolving issues relating to the global order, the Bargaining Association made an application to the LRB for relief. The employer brought a preliminary objection that the Association's application was premature. The Board disagreed, commenting that the Bargaining Association's application was timely and should proceed.

In the course of the decision Associate Chair Fleming reviewed the history of the essential services regime, pointing out that in the past the Board had ordered parties in health care to begin the essential services process at least 12 weeks prior to the expiration of the collective agreement, "in order to have the process undertaken in as orderly a manner as possible away from the inevitable tensions and pressures associated with collective bargaining."

It is ironic that CSSEA was complaining about an application to have the designation process completed some 10 months after the expiry of the collective agreement.  Hardly premature, I would say.

Successorship--last week at the LRB

2011-02-14T21:42:00.000-08:00

Under the BC Labour Code s.35 when a business or part of a business is transferred from one employer to another, the union and the collective agreement go with the sale or transfer. This is called successorship, and the Labour Board can order a run off vote to avoid two unions in the new merged workplace as well as amend the collective agreement to accommodate the new situation.

However, if the transfer of the business is characterized as an intra-corporate transfer, then the Code successorship provisions don't apply, though other, less effective Code provisions may have application (such as s.54 of the Code that requires and employer to "consult" with a union and try to negotiate and adjustment program where significant layoffs might result).

In the Supremex Inc. v. PPWC Local 5 and CEP Local 433 decision issued on February 11, 2011 Vice Chair Bruce Wilkins granted an application by CEP for a declaration that there had been a successorship and for a run-off vote between the PPWC and CEP locals.

In that case Supremex purchased the business of Pioneer which comprised a plant in Langley, certified with CEP Local 433, that it renamed "Pioneer Envelopes, a Division of Supremex Inc.". Within a few weeks of the purchase it issued notice to CEP that the Langley plant would be closed and the business and employees from there would move to Supremex' plant in Delta BC which was certified with PPWC Local 5. PPWC and the employer argued that this amounted to an intra-corporate transfer and was not a successorship.

The Board disagreed finding that, because the employer had made the decision to merge the two plants when it was performing its due diligence for the purchase of Pioneer, the transaction was not a separate intra-corporate transfer; rather it was part of the successorship of Pioneer to Supremex and thus s.35 applied. The Board noted that to agree with PPWC and the employer, would be to allow form to trump substance thus denying to the workers the protection of s.35 of the Code which includes not only the protection of the collective agreement, but also the right to be represented by the union of their choice.

More from the Supreme Court on the Standard of Review

2011-02-11T19:54:00.000-08:00

For those of you (lawyers and law students most likely) who are interested in the standard that a court will use when reviewing a decision of an administrative tribunal, the following summary of the Supreme Court's decision in Smith v. Alliance Pipeline issued to-day will be of interest. Note that in British Columbia you must always look to the Administrative Tribunals Act first. That statute preserves the oft-maligned standard of patent unreasonableness for most those tribunals listed in the Act. The Labour Relations Board is included in the Act.

The Alliance Pipeline case is about an arbitration award under the National Energy Board Act for compensation to a farmer over the damage to his land caused by Alliance Pipeline in exercising its right-of-way and laying a natural gas pipeline. The issue was compensation for legal costs. In the end result, he was awarded solicitor-client costs throughout on the basis that this was consistent with expropriation law principles.

The more noteworthy issue was the difference between the majority judgement and the concurring judgment by Deschamps, J on the issue of standard of review. The majority gave great weight to the fact that the arbitration panel was operating under its home statute, in its determination that the standard of review is reasonableness pursuant to Dunsmuir. Deschamps disagreed that the "home statute" issue is determinative, and wrote that there should be no presumption of expertise within a home statute. Here, the arbitration panel was constituted on an ad hoc basis and there was no factual basis to assume its general familiarity or expertise in relation to the National Energy Board Act.

This summary is courtesy of my husband Jim Quail, the executive director of the BC Public Interest Advocacy Centre, who is, of course, one of the most brilliant lawyers I know.

Is trade unionism a "political belief" protected from discrimination under the BC Human Rights Code?

2011-02-10T22:02:00.000-08:00

One of the prohibited grounds of discrimination under the BC Human Rights Code is political belief.

The Human Rights Tribunal has not had occasion to define “political belief” but in a recent decision where it dismissed a complaint on a preliminary application, it referred to its 2009 decision in Croxall v. West Fraser.

In that case Croxall brought a human rights complaint against his former employer West Fraser alleging that it did not rehire him based on his union activities and union membership. West Fraser argued that the belief in issue, ie trade unionism did not come within the scope of political belief under the Human Rights Code.

The Tribunal disagreed stating that, “political belief under the Code is to be given a liberal definition and that it is not, on the on hand, confined to partisan political beliefs nor, on the other, is it unlimited in its definition." Generally beliefs about workplace conditions, employment practices or labour relations alone do not constitute political belief under the Code.

The Tribunal member wrote:

In my view, a determination of whether a belief in trade unionism constitutes a political belief under the Code requires a factual foundation, such as the nature of the belief at stake, and whether the belief is core to a person’s concept of a system of social cooperation; and legal argument, including an appropriate application of the rules of legal interpretation and consideration of the historical context of the legislative drafting.

In neither of these two cases was there a sufficient factual basis for the complaint to go forward, therefore the question is still open. In view of the comment that "belief" is not limited to partisan political beliefs, the right fact pattern may well yield the right answer.

UFCW challenges validity of LRB regulation of picketing on private property

2011-02-10T21:22:00.000-08:00

You have to hand it to the UFCW Local 1518 and their lawyer Chris Buchanan from Hastings Labour Law. They are nothing if not tenacious.

Case in point is the legal saga relating to the closure of the Extra Foods grocery store in Prince Rupert. Some of it was played out in a decision issued by the LRB on February 2, 2011 in Pollyco and Loblaws v. UFCW Local 1518.

UFCW members have been picketing inside the Rupert Square Mall in Prince Rupert at the site of the former Extra Foods. Loblaws and its franchisee Westfair foods closed down the store when the union went on strike in June 2010 after rejecting a "No Frills" collective agreement; "No Frills" being another brand of the Loblaws grocery store chain with a "cheaper" collective agreement.    Although Loblaws gave up the lease on the property in August 2010, the union continued to picket, afraid that, until the property is leased to a new tenant Loblaws can just re-open the store under another of its brand names. The union is familiar with this form of union-busting and fights it in whatever way it can.
The owner of the mall, Pollyco applied to the LRB for an order to end the picketing on the basis that there is no reasonable prospect that the closed down unionized store will ever reopen and thus there is no longer any sufficient continuing interest between the employer and the employees. This is the test that the LRB has developed to determine such claims.

The union challenged the constitutionality of the Board's authority to regulate picketing on private property, asserting that only courts could do that. The constitutional challenge was set down for hearing, but in the meantime Vice Chair Wilkins issued a cease and desist order against the picketing.

LRB upholds union's decision to distribute $400,000 lump sum among members who picketed

2011-02-08T21:59:00.000-08:00

An interest arbitration award issued by Vince Ready at the end of a long and bitter strike involving the Amalgamated Transit Union and MTV Canadian Bus Inc. included an order that the employer pay a lump sum of $400,000 to the union to distribute to its members as it deemed appropriate. The union decided to allocate the money to those members who had received strike pay. A number of members who had not received strike pay filed a complaint with the Labour Relations Board that this was a breach of the union's duty of fair representation, in that the decision was arbitrary and unfair. They pointed to the fact that the union had recommended to members that the strike would be long so they should seek alternate employment, that there had been irregularities in some members receiving strike pay although they did not picket and some members who had picketed had not received strike pay and that there were other ways that members had supported the strike. In a decision issued February 3, 2011, Vice Chair Saunders dismissed the complaint on the basis that the union had made a reasoned decision and had turned its mind to the problems identified by the complainants. The decision is interesting as the facts are a departure from the usual grievance-related fact pattern. Nevertheless the applicable principles are the same.

What information does the employer have to provide to the union?

2011-02-08T21:18:00.000-08:00

In deciding whether to launch and then pursue a grievance involving the selection of a candidate for a position, unions often need to have information about the selection process and how the grievor, ie the unsuccessful applicant, fared compared with the other applicants, and in particular the successful applicant.

Employers usually resist disclosing this information on the basis of privacy concerns.

There is a very useful decision issued in 2007 by Arbitrator Jim Dorsey that sets out the principles that apply in these situations. The case is, Canadian Office and Professional Employees Union v.Coast Mountain Bus Co. (Disclosure of Personal Information Grievance)[2007] B.C.C.A.A.A. No. 172, 165 L.A.C. (4th) 141.

Dorsey writes:

129 I have concluded the personal information to be disclosed to meet the union's purpose of en-suring the Employer's hiring decision complies with the collective agreement is all personal infor-mation in the complete "applications", as determined above, of the successful candidate and union members except (1) personal information not related to an applicant's ability to perform the job or seniority and (2) the limited class of information that qualifies as a personal identifier described above.

133 The information typically collected that is not to be disclosed in order to minimize intrusions into the personal lives of individual applicants is all applications of unsuccessful applicants who are not union members and any personal identifiers of all applicants as described above.

134 Beyond this information, I agree with the employer that the information typically collected that is not related to the ability to perform the vacant job or to the applicants' seniority will have to be determined on a case-by-case basis with the employer assuming the burden that information it determines at the time of disclosure is not related to ability or seniority is information it has not and will not rely on to support its selection decision.

In my older posts, you will find reference to an LRB decision where the Board ruled that an employer had to provide to the union a list of employees and their home address and home telephone number in order for the union to carry out its statutory obligations. In P. Sun's Enterprises (Vancouver) Ltd. (Hotel Grand Pacific), BCLRB No. B301/2003. The Board was of the view that the in order to to represent its members its members a union has to have the ability to communicate with them. Where it is relatively easy and inexpensive for an employer to provide the information requested and where the only reason for denying the information is concern about employee privacy, an employer must provide that information otherwise it risks committing an unfair labour practice. Note that there is no obligation to provide the information in any particular form. In other words one cannot insist that the information be provided in an electronic form, for example.

For more information about employee personal information and obligations under BC privacy legislation, check out the Office of the Information and Privacy Commissioner website at: http://www.oipc.bc.ca

Court rules that OH&S Regulations apply to Jimmy Pattison's fishing fleet

2011-02-06T19:53:00.000-08:00

I bet you didn't know that Jimmy Pattison owns a fleet of fishing vessels. I din't either until I came across a BC Court of Appeal decision handed down on February 2, 2011.

In Jimmy Pattison Enterprises v. WCB BC's highest court dismissed Pattison's constitutional challenge to the the application of BC's Occupational Health and Safety regulations to his fishing fleet. Pattison Enterprises argued that in the course of fishing the vessels crossed international boundaries and as such they were not subject to provincial legislation since s.91 of our Constitution grants exclusive jurisdiction to the federal government to legislate over shipping and navigation.

The court ruled that conditions of employment, including legislation relating to the occupational health and safety of workers, are presumed to fall within provincial legislative jurisdiction under the heading of “property and civil rights” found in s. 92(3) of the Constitution . This presumption can be rebutted if it can be shown that the “normal or habitual activities” of a business or undertaking fall within s.91(10)(a) or are found to be an integral or essential part of a “federal work, undertaking or business” based on the “functional test” adopted by the court in previous cases. Section 91 and 92 of the Constitution list all the exclusive areas over which the federal and provincial governments respectively can make laws.

The court noted that there was, nothing in the habitual activities of Pattison's fishing fleet, "that can be identified as having a national or foreign interest or purpose. There is no connectivity to another jurisdiction. The vessels are owned by provincially incorporated companies; their home port is in the province; they leave and return only from and to B.C. ports; they unload and sell their harvest solely within the province; and, their crew are residents of B.C. and hired solely out of this province. While a significant percentage of the appellants’ activities involve excursions into waters outside the territorial boundaries of the province, there is no operational connectivity to another jurisdiction."

The court also dismissed Pattison's alternative argument that the OH&S regulations are inapplicable to their fishing vessels because they “impair an unassailable core aspect of the federal head of power over navigation and shipping under s. 91(10)." The court embarked on a lengthy review of the doctrine of interjurisdictional immunity, paramountcy and the character of contemporary Canadian federalism. In this part of the decision the court referred to the recent Supreme Court of Canada decision in NIL/TU'O v. BCGEU, argued most ably my colleague Ken Curry, in-house counsel at the BCGEU.
In Pattison’s case the court concluded that the OH&S regulations were not onerous requirements but rather they appeared to complement the federal regulatory regime over shipping and navigation in a manner that will benefit the health and safety of workers employed in a potentially hazardous workplace.

It remains to be seen whether Pattison will seek leave to appeal to the Supreme Court of Canada.

Attendance management programs and innocent absenteeism

2011-02-06T19:09:00.000-08:00

Last week I was a panelist on a Lancaster House Audio Conference on Attendance Management Programs. A conscientious HR professional sent in the following question:
My question is how do I “sell” other Managers and the Union on the fact that our Attendance Management Program is non-disciplinary? When a non-disciplinary Attendance Management Program has built into it, the ability for the Company to terminate for non-disciplinary reasons due to innocent absenteeism then how can the program itself be non-disciplinary? Termination in itself is seen as disciplinary, so if that can be the end result for an employee then how do I better explain a “non-disciplinary” termination?

This is a very good question. Below is how I responded:

We have to go back to stripped-down contract principles. When an employee is hired the employer promises to pay and the employee promises to work. Think of target attendance rates as included in the "work" .

Termination means that the contract of employment is brought to an end. Contracts can be brought to an end when one or both sides do not live up to a fundamental term of the contract. One way an employee brings the contract to an end is by doing something really bad, say like assaulting a supervisor or by refusing to do his job. Another way that an employee brings the contract to an end is by being unable to work (which is what he promised to do when he was hired). Unable to work, means those situations when the employee's absence is legitimate, i.e. the employee is off sick and has the employer's permission to be away from work.

The reason why the Attendance Management Program is non-disciplinary is because it deals with absences which are genuine and which are considered to be, to a great extent, beyond the worker's control. Think of these absences as approved leaves. If an employee is away because he has the flu, he's away because he's really sick and he can't come in to work. His absence from work is beyond his control. His absence is legitimate and his leave from work is deemed to have the employer's permission.

On the other hand an employee who just doesn't show up to work, or who says he's sick and really isn't, is in a different situation. His absence is within his control. He is absent without permission. (The lying just adds to the culpability of the misconduct). These kinds of absences are dealt with through progressive discipline. You can go through all of the steps of discipline from warning, through to suspension through to discharge.

The purpose of the discipline is to provide the employee the opportunity to change their conduct, but also to send a message to other employees that such conduct is not acceptable. The purpose of the increasing level of discipline is to bring home to the employee the seriousness of the situation.

In the Attendance Management Program non-disciplinary process the whole purpose is to inform the employee of the standard that they have to meet (i.e. the target attendance or absence), to offer them adequate time and support to reach the target, and, finally if there is medical evidence which shows that regardless of all the opportunity that has been provided, there is no reasonble prospect that in the foreseeable future the employee will be able to meet the standard, the employment contract is at an end. There is no concept of "punishment" or culpability in this approach. You cannot suspend an employee. You can tell them in no uncertain terms that they're getting to the end of the road (i.e. they've had a sufficient amount of time to try and get medical help or do something to bring the condition under control, for example), but if they've tried everything and they still cannot meet the standard and they're unlikely to ever be able to meet the standard, then the law says that an employer does not have to keep employing a worker who is not able to deliver on their promise to work. Of course this is subject to the obligation of the employer under human rights legislation to accommodate a disabled employee to the point of undue hardship.

And a final point, attendance management programs that do not clearly specify that they deal only with innocent or non-culpable absences do not pass arbitral scrutiny.

BC Arbitration Awards available on free CanLII website

2011-02-04T15:29:00.000-08:00

Many thanks to my colleague Matt Yun, a lawyer with CUPE in British Columbia, and a believer in open source internet, who sent me the following message:

The BC Collective Agreements Arbitration Bureau started publishing all arbitration decisions on CanLii starting June 2010. These decisions are now truly accessible by the public.

The CanLii database is: http://www.canlii.org/en/bc/bcla/

The RSS news feed for BC is:http://www.canlii.org/en/bc/bcla/rss_new.xml

LRB rules no breach of duty of fair represenation in a complaint about a termination/accommodation grievance

2011-02-03T23:20:00.000-08:00

In Delaney v. PPWC Local 9 and Canfor issued on February 1, 2011, Vice Chair Adam dismissed a complaint under s.12 of the Labour Code that the union had breached its duty of fair representation.

The complaint concerned the union’s decision to withdraw an accommodation/termination grievance. The Board was satisfied that the union’s decision was reasoned and was based on an adequate investigation of the relevant circumstances. He further found that the union had taken reasonable steps to try to secure severance pay or a buyout, notwithstanding that there appeared to be no contractual basis for that claim.

Delaney complained that the Union had failed to force the employer to accommodate his disability in a position off-site that would have provided zero exposure to chemicals and wood dust. In dealing with this aspect of the complaint, Adam writes that “While such issues might be addressed by Delaney through the Human Rights Code, RSBC 1996, c. 210 or the Workers Compensation Act the scope of the Union’s exclusive bargaining agency is more limited.”

I’m not sure that the Vice Chair’s comments are the last word on this point. It appears that the impact of the Supreme Court of Canada decision in Parry Sound was not argued at the LRB. In that case, the Court ruled that human rights legislation is incorporated in collective agreements.

In any event, unions should exercise diligence in accommodation cases because they may be faced not only with a s.12 complaint, but also a complaint under the Human Rights Code.

Denial of supplemental benefit to birth mothers ruled discriminatory

2011-02-03T21:56:00.000-08:00

This case summary is prepared by my colleague Robyn Trask who argued the case. The award was issued by Arbitrator Kinzie on February 4, 2010 and has not yet been published on Quicklaw.

In British Columbia Public School Employers Association/Board of Education of School District 61 (Greater Victoria) v. British Columbia Teachers' Federation/Greater Victoria Teachers' Association, the union grieved the employer’s failure to provide parental leave Supplementary Unemployment Benefit (SUB) plan benefits to birth mothers as discriminatory contrary to section 13 of the Human Rights Code and section 15 of the Charter of Rights and Freedoms. In the school district, birth mothers were provided with 17 weeks of pregnancy leave SUB plan benefits, but were not provided with the 10 weeks of parental leave SUB plan benefits that were provided to birth fathers and adoptive parents.

The Arbitrator agreed with the union’s arguments that the denial of the parental leave SUB plan benefit to birth mothers “constitutes discrimination on the grounds of sex and family status and is contrary to the meaning of both Section 15(1) of the Charter and Section 13(1) of the Human Rights Code”. The Arbitrator concluded that the employer’s refusal to pay parental leave SUB plan benefits to birth mothers was not saved by section 1 of the Charter nor was it a bona fide occupational requirement under section 13(4) of the Human Rights Code.

The Arbitrator did not agree with the employer’s argument that birth mothers were compensated for their exclusion from the 10 weeks of parental benefits by the fact that they received 17 weeks of pregnancy benefits. The Arbitrator recognised that pregnancy leave benefits are for the purpose of rest and recuperation from childbirth and he could see no rational basis for excluding birth mothers from parental leave SUB plan benefits available to others.

On the question of remedy, the arbitrator reviewed the financial cost of providing these benefits, and determined that in these circumstances the most appropriate remedy was to refer the matter back to the parties to renegotiate these articles of the collective agreement and “give them the opportunity to redress the discrimination that has been found to exist in Article G.2.5”. Failing an agreement between the parties, the arbitrator retained jurisdiction to complete his Award in this matter.

Duty of Fair Representation

2011-02-01T21:47:00.000-08:00

In Frew v. Steelworkers local 1-85 issued on January 26, 2010 the LRB found that the union had breached its statutory duty of fair representation owed to the complainant under s.12 of the Labour Relations Code.

The employer terminated Frew on the basis that he had breached a last chance agreement. Frew was suspected of having consumed alcohol contrary to the provisions of the last chance agreement negotiated between the employer and the union that saw Frew reinstated for a previous infraction. Frew denied having consumed alcohol and offered to submit to urine and blood analysis. Other employees observed his demeanour during the time in question and disagreed with the employer's assessment that he smelled of alcohol and appeared inebriated. However, there was no evidence that the union had interviewed these witnesses. The union initially pursued the grievance, but ultimately it decided not to refer it to arbitration.

Vice Chair Ritu Mahil noted that the arbitration hearing would have involved an assessment of credibility and the union had not provided any explanation as to why the union witnesses would not have been credible. In addition the union did not provide evidence that it had sought to interview the two employees who had supposedly seen Frew on the day in question and the union had not provided an explanation either to Frew or to the LRB why it had decided not to pursue the grievance to arbitration.

This case is a good reminder that unions need to ensure they investigate all of the facts, interview all witnesses who can shed light on the facts, and that they provide a reasoned explanation to a member whose grievance they will not be pursuing. It is to be remembered that the test in a duty of fair representation is not whether or not the union made the right decision, but that the decision was not made in an arbitrary, bad faith or discriminatory manner.

BC Human Rights Tribunal will hear age discrimination complaint against law firm

2011-01-28T23:39:00.000-08:00

McCormick v. Fasken Martineau

John McCormick is a lawyer and an equity partner with Fasken Martineau LLP. Fasken is a law firm registered in British Columbia with offices in Canada's largest cities, and in London, Paris and Johannesburg. It has 650 lawyers, 250 of which are partners. The lawfirm has a policy that requires its equity partners to retire at 65, with the possibility that they could enter into individual arrangements to continue working beyond age 65 as regular partners or employees of the firm.

McCormick who turned 65 in March of 2010 and had been with the firm since he articled there in 1970 filed a complaint with the BC Human Rights Tribunal that he had been discriminated in his employment because of his age.

Fasken applied to dismiss the application on the basis that, as an equity partner sharing in the decision-making, profits and liabilities of the partnership, McCormick was not in an employment relationship as defined by the Human Rights Act. In a decision issued on December 16, 2010, the Tribunal dismissed Fasken's application.

The Tribunal conducted an extensive review of prior jurisprudence and concluded that the indicators of an employment relationship, i.e. utilization, control and financial purpose, were all present. These, together with the remedial purpose of the legislation and the actual relationship created and maintained by the partnership agreement, were sufficient to bring McCormick's complaint within the jurisdiction of the Tribunal.

The matter will be set down for hearing. I suspect that the hearing will not occur and that a settlement will be reached before another decision is published.

Application to change unions from CLAC to IUOE 115 and CSWU 1611 dismissed by the LRB.

2011-01-27T18:39:00.000-08:00

In Pedre Construction v. IUOE 115 et al Vice Chair Topalian dismissed a raid application on January 26, 2010. A polyparty of two construction unions signed up 18 employees who were already represented by the Christian Labour Association of Canada. The unions made an application for certification under s.19 of the Code, the raid provisions, to change unions. That section has some very specific requirements designed to balance the right of employees to switch to a different union mid-contract and the right of the employer and the incumbent bargaining agent to stability. A union must sign up more than 50% of the employees in order to have a runoff vote. As well, the application can only be brought at specified times and, if dismissed, another application cannot be made within 22 months of the failed attempt.

The employer and CLAC opposed the application on the basis that the union had not signed up a majority of the employees in the bargaining unit. The union had been given to understand that there were only 28 employees in the workforce; however during the LRB informal processes it came to light that the workforce had 100 employees. At that point, the union sought to withdraw its application. A withdrawal does not engage the 22 month limitation. The employer and CLAC opposed the withdrawal. Vice Chair Philip Topalian agreed and then went on to dismiss the raid application stating:

The onus is on the applicant seeking to withdraw a raid application to
demonstrate it exercised due diligence and that there is a labour relations purpose supporting the withdrawal application. In the absence of any particulars on either duediligence or labour relations purpose which might support the Poly-Party Union’swithdrawal application, I refused that application in accordance with the Board’s policy set out in HEABC. I then dismissed the Raid Application as the Poly-Party Union had failed to demonstrate the threshold support required under the Code.

Last week at the LRB

2011-01-25T22:30:00.000-08:00

(note—you can access the decisions by clicking on the highlighted link)

Vice Chair Saunders denied a s. 99 application by Vancouver Island University to review an arbitration award that upheld a union grievance regarding the conversion of employees to regular status. The employer argued that the award contained no reasoned analysis and the arbitrator had made a palpable error. Saunders disagreed.

Vice Chair Adam dismissed a duty of fair representation complaint under s. 12 of the Code against the Vancouver Community College Faculty Association.

The Vancouver Island University Faculty Association applied under s.139 for a declaration that its certification covered all employees who teach university courses or alternatively under s.142 for a variation to its certification to include such employees. The bargaining unit description for the faculty association excluded vocational instructors who were in a separate bargaining unit represented by the BCGEU. Vice Chair Adam dismissed both applications. He ruled that vocational instructors who taught university courses were not included in the VIUFA bargaining unit. He further ruled that they could not be varied in, even though the union met the procedural criteria (i.e. in a variation the union has to sign up workers and a vote must be held). He found that the criteria in the leading LRB decision Island Medical Labs had not been met. VIUFA had not established that the BCGEU bargaining unit was no longer viable. He also found that whether or not a vocational course attracts university credit was irrelevant to the issue of industrial instability.

Associate Chair of Adjudication Michael Fleming dismissed a duty of fair representation complaint under s. 12 of the Code against the United Steelworkers.

January 2011 Labour Arbitration Awards (published so far)

2011-01-24T21:43:00.000-08:00

January 6, 2011 Cargo Link Transport v. CAW Local 2006 (Pay Rate Grievance) [2011] BCCAAA No. 1, Arbitrator Dalton Larson upheld a grievance for unpaid wages. In addition to wages and interest back to 2006, the Arbitrator ordered the employer to pay the full cost of the arbitration. He also left open the possibility that non-compliance by the employer would lead to punitive damages being awarded. On punitive damages, Arbitrator Larson had this to say:

33 Although arbitrators continue to exhibit reluctance to award punitive damages, there can be no doubt that they have jurisdiction to award them in appropriate circumstances: Re Toronto Airports Authority and Public Service Alliance of Canada Local 0004 [2010] 191 LAC (4th) 277 (Shime); Limojet Gold Express Ltd. and Public Service Alliance of Canada Local 05/21081 [2008] 171 LAC (4th) 28 (Larson).

34 Punitive damages constitute a unique enforcement mechanism. They are intended to have a deterrent effect on the community at large sending a message that certain conduct will not be tolerated. They may be awarded where there is an independent or separate actionable wrong and the conduct of the wrongdoer is so high-handed and reprehensible that it offends the arbitrator's sense of decency.

January 5, 2011 BCPSEA v. BCTF (Brothers Grievance) [2011] BCCAAA No. 2 Arbitrator Colin Taylor denied a union grievance for severance pay on behalf of two adult educators. The grievors had failed to obtain a teaching certificate from the College of Teachers as required by the School Act and the employer took the position that they could no longer continue in their employment. The collective agreement provided that where the hours of work were reduced to zero an employee could elect severance. The arbitrator ruled that the severance pay provision did not apply to situations where the reduction in hours was voluntary.

January 4, 2011 Fraser Health Authority v. HEU (Classification Grievance) [2011] BCCAAA No. 3. Arbitrator Kinzie dismissed the union’s application to reclassify the Practical Nurse, Full Scope position in the emergency department

January 11, 2011 Ring Contracting Ltd. v. IUOE Local 115 (Payment of Dues Grievance) [2011] BCCAAA No. 4. Arbitrator Richard Coleman upheld a union grievance that the employer had failed to remit union dues, pension contributions, health and welfare benefits, tool allowance, training funds, advancement funds and a rehabilitation fun. The company sought to offset these remittances for claims it was pursuing or intended to pursue in court against the Operating Engineers Pension Fund. The arbitrator ruled that such an offset was not permissible.

January 11, 2011 Hertz Canada Ltd. v. COPE 378 (Raith Grievance) [2011] BCCAAA No. 5. Arbitrator R.K. McDonald upheld two vacation request grievances. One of the grievances turned on credibility regarding when the request was made and the Arbitrator applied the principles of Faryna v. Chorny [1952] 2 D.L.R. 354 (BCAA).

Labour Board refuses to issue common employer declaration

2011-01-18T22:39:00.000-08:00

Vice Chair Alison Matacheski declined an application by the Construction and Specialized Workers' Local 1611 for a declaration that Ansan Traffic Control and Lanetec Traffic Control were a common employer. CSWU represented workers at Ansan and the IBEW represented workers at Lanetec. A declaration would have resulted in a run off vote between the two unions and extension of the suriving collective agreement to the expanded unit. Although the employer conceded that the two companies, although separate, were under common direction and control, the Vice Chair in a decision issued on January 4, 2011 refused to grant the declaration on the basis that no labour relations purpose would be served. Under s.38 of the Labour Code the Board has discretion on whether or not to issue the declaration. She writes:

In these circumstances, I find that, although there were problems which raised legitimate concerns about industrial instability and an inability to administer a collective agreement, they are not adverse labour relations consequences which continue and justify making a common employer declaration. In cases involving only one union, the potential for erosion of bargaining rights, industrial instability or the inability to administer the collective agreement is generally found to be enough of a concern to establish the requisite labour relations purpose. However, where there are two or more unions involved, the Board gives considerable weight to the presence of competing bargaining rights: Baywood, Farmer, To-Market. The Board must consider the impact of the common employer declaration on the representation rights of both unions when determining if there is a labour relations purpose to be met by issuing the common employer declaration.

The Vice Chair left open the possibility that a declaration could be granted in the future if the employers used the corporate structure to adversely affect the integrity of either union's bargaining unit.

Decertification fails because of employer interference

2011-01-18T18:07:00.000-08:00

Vice Chair Philip Topalian dismissed an application by certain employees of Highroad Traffic Services to decertify from IBEW Local 258. In response to an application for decertification the union alleged that the employer had improperly interfered in the decertification drive and had committed unfair labour practices. Topalian agreed in a decision issued last week with the following finding:

Because the Employer was involved in every step of the process; from organizing an employee meeting to discuss the pros and cons of being part of the Union, to having the meeting and conducting the vote that resulted in the Application at his own home; I am unable to conclude the Application was completely an independent choice of the employees uninfluenced by the Employer's views on decertification. I have no hesitation in finding that the actions of the Employer in this case amounted to improper interference under Section 6(1) of the Code, as well as for the purposes of Section 33(6)(b).

Successorship

2011-01-18T16:29:00.000-08:00

In the labour relations context, successorship occurs when there’s been a transfer either from the union to another union or from one employer entity to another, such that the collective bargaining rights and obligations continue. The BC Labour Relations Code s. 37 governs the situation when one union makes an agreement to transfer its certification to another union. This is different from a union “raid” which is the equivalent of a hostile takeover and is governed by s.19.

Section 35 governs what happens when an employer sell the whole or part of its business. In such a circumstance, the law says that “the collective agreement continues to bind the purchaser, lessee or transferee to the same extent as if it had been signed by the purchaser, lessee or transferee, as the case may be.” The LRB has issued many decisions on what is or is not a successorship. Look under key decisions on the LRB website.

In the Active Steel v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 97 decision, issued last week Vice Chair Topalian, discussed the “key person” concept in an employer successorship case.
The question was, what happens if no assets transfer, but the key person in a business shuts down operations and opens up another business or simply moves to another business and the original business shuts down? The Board has ruled that in such a circumstancea successorship under the Code has occurred. The jurisprudence is captured in this passage:

What are the factors that make someone a "key person?" It is where a particular person has the skill, expertise, reputation, along with experience and initiative necessary for the business to operate as a going concern. That person must be said to be the embodiment of the dynamic force which makes the business a thriving, going concern. That is what makes the person who reflects those ingredients a "key" person – crucial and irreplaceable. It also means that if the key person dies, one would expect the business to be seriously traumatized and its existence jeopardized; the same is true if the key person quits, retires, or simply goes out of business. In short, the loss of a key person "would mean the demise of all or part of the business as a going concern …" Metropolitan Parking, supra, at p. 212. That is why, if the key person ceases to carry on business in one location or form and opens in another location or in another form, but carries on substantially the same kind of business, there is effectively a discernible continuity of business: the key person is the business.

If a successorship through a key person is to be established, then it must be established that the person was a key person both in the predecessor business and in the alleged successor business. Only in that way can there be a continuity of the business as a dynamic enterprise through the vehicle of the key person. In some cases it may be possible to infer from the conduct of a key person in a successor business as to what the person's role may have been in the predecessor business. I caution that in the absence of any objective corroborating evidence, such inferences should not be lightly drawn.

In the Active Steel case, Vice Chair Topalian ruled that a successorship had not been established.

Labour Board discusses voluntary recognition

2011-01-17T23:24:00.000-08:00

Board Vice Chair Alison Matacheski issued a decision that reviews the differences between union representation through certification under the Labour Code and union representation achieved through a voluntary recognition agreement between the employer and the union. She writes,

"Voluntary recognition differs from certification in several key respects. Voluntary recognition originates outside of the Board's jurisdiction. It is born out of the parties' agreement as opposed to statutory compulsion. A voluntary recognition agreement establishes terms of employment like a collective agreement negotiated between an employer and a certified union. Under a voluntary recognition agreement, the parties exercise the freedom to define the boundaries of the bargaining unit, without the Board's scrutiny. It is precisely that freedom to define the bargaining relationship that is considered a principal advantage of voluntary recognition over certification"

Vice Chair Matacheski dismissed an application by Viatek Telecommunications that IBEW Local 213 had engaged in an illegal strike. She ruled that there could not be an illegal strike because the collective agreement was no longer in force. The union had exercised its rights under the termination clause in the agreement and had brought the collective bargaining relationship to an end. The employer had argued unsuccessfully that the termination of the collective bargaining relationship could only occur under the decertification procedures set out in s. 33 of the Code.

More recent published arbitration awards

2011-01-15T17:19:00.000-08:00

Two additional arbitration decisions were published on Quicklaw recently.

December 17, 2010 CEP Local 76 v. Catalyst Paper (Retirement Benefits Grievance) No. 177. Arbitrator Jim Dorsey dismissed a union grievance against the employer’s failure to pay the full cost of health premiums to union members who had retired prior to 1998 when the company was owned by MacMillan Bloedel. He found that although Catalyst Paper was a successor employer it had not assumed an obligation to pay these premiums because there was no collective agreement obligation to do so. He noted that the union had tabled a proposal in the 2002 round of bargaining that supported the conclusion that there was no provision for this benefit in the collective agreement. The case is also interesting as it contains an account of how MacMillan Bloedel got out of BC’s pulp and paper industry.

December 17, 2010 Vancouver (City) v. CUPE Local 1004 (K. Grant Grievance) No. 167. Arbitrator Christopher Sullivan dismissed a termination grievance. He found that the grievor was absent without medical substantiation and that he was insubordinate in his failure to cooperate with the employer who was seeking to have him return to work in accordance with medical information based on an assessment made by the grievor’s own physician.

Privacy Commissioner decision casts doubt on confidential settlements

2011-01-09T07:26:00.000-08:00

In a decision issued December 22, 2010 a British Columbia privacy commissioner has cast doubt on the enforceability of confidentiality clauses when it comes to money paid by a public sector employer in settlement of litigation.The case arose in the labour relations context, but its principles may have application in all other contexts.

The case concerned the settlement of a grievance between the City of Richmond and the union representing an employee. The settlement agreement contained a confidentiality clause providing that none of the parties involved would disclose any of the terms of the settlement.

A member of the public applied for disclosure of the terms under BC's Freedom of Information and Protection of Privacy Act. The City refused disclosure and the applicant sought an order from the office of the privacy commissioner limiting the request only to the amount paid out. Adjudicator Jay Fedorak ordered the City to disclose the amount.

The Adjudicator reasoned that discloure of the mere amount would not lead anyone to infer anything about any of the parties involved in the dispute, that the third party (the employee whose grievance had been settled) had not objected, and finally, "that a fundamental element of accountability of public bodies comes about through transparency concerning how they spend public funds. For the public to hold public bodies to account, the public should generally have access to information about who receives money from public bodies and how much."

The ability to maintain confidentiality over terms of settlement agreements, including how much has been paid, tends to facilitate settlement of litigation. Settlements take into account the chances of ultimate success in the litigation as well as the legal and other fees that are often greater than what the actual dispute is worth. It remains to be seen whether this decision will lead to a reduction in litigation settlements. At the very least it will make lawyers and public sector litigants consider more closely whether the usual confidentiality clauses are sufficient.

December 2010 published arbitration awards

2011-01-06T20:53:00.000-08:00

December 2, 2010 BCPSEA v. BCTF (Smith Grievance) No. A-128/10 Arbitrator John Kinzie dismissed the union’s grievance regarding the appointment of an outside applicant to a temporary vacancy. The decision turned on the interpretation of the specific provisions of the collective agreement.

December 8, 2010 Tembec Industries Inc. v. PPWC Local 15 (Flanders Grievance) No. A-127-10 Arbitrator Mark Brown dismissed the union’s grievance that the grievor was entitled to both severance pay and pension bridging on the basis that the structure of that particular collective agreement resulted in termination and retirement being two different concepts.

December 8, 2010 Southern Railway of BC v. CUPE Local 7000 (Martin Grievance) No. A-129/10 Arbitrator John Steeves allowed a termination grievance on the basis that the employer had not proven that there was conduct on the part of the grievor that warranted discipline.

December 9, 2010 HEABC v. Health Services and Support Facilities Subsector Bargaining Assn. (Criminal Record Fee Grievance) No. A-130/10 Arbitrator John Steeves dismissed the grievance. The union argued that the $20.00 criminal record check that health employees who worked with children were required by the Criminal Record Check Act to obtain upon hire and every fiver years thereafter was a “cost of doing business” under the Employment Standards Act and thus payable by the employer health authorities. The arbitrator disagreed.

December 17, 2010 Vancouver v. CUPE Local 1004 (Grant Grievance) [2010] BCCAAA No. 167. Arbitrator Christopher Sullivan dismissed the union’s grievance against the termination of the grievor finding that in the circumstances discharge was an appropriate sanction. He found the grievor’s misconduct to be serious and that his stubborn and defiant behaviour had caused the employment relationship to be irreparably breached. The grievor had surreptitiously recorded meetings with the Employer and had shown a propensity to be unreasonably defiant and untruthful in his defiance.

BC Labour Arbitration Awards in the last 30 days

2010-12-11T09:48:00.000-08:00

Below is the latest update on arbitration awards published since November 10.

Nov.15, 2010 New Westminster School District No.40 v. CUPE Local 409(Custodian Team Cleaning Grievance) No. A-124/10 grievance dismissed by Arbitrator Emily Burke. Union grieved transfer of custodial staff to different schools in the district for summer cleaning. Employer denied violation of collective agreement arguing that the provisions cited by the union did not apply to summer team cleaning which has been a long-standing practice in the district.

Nov.10, 2010 HEABC v. BCGEU (Nichol Grievance) No. X-025/10 grievance partially upheld by Arbitrator Mark Brown. Two day suspension substituted. Casual employee had a previous one day suspension for similar incident of inappropriate argumentative interaction with a client.

Nov. 19,2010 Thompson Technology v. IAMAW District 250 (Wage Increase Grievance) No. A-122/10. Grievance dismissed by Arbitrator Mark Brown. Union asserted that an employer proposal in bargaining included a general wage increase.

Nov. 25, 2010 COPE 378 v. Terasen Gas Inc. (Bargaining Unit Work Grievance) No. A-125/10 Grievance was settled through a settlement agreement. Arbitrator Dorsey ruled the two non-bargaining unit employees were covered by the collective agreement.

Wal-Mart goes to US Supreme Court to stop sex-discrimination class action

2010-12-11T09:17:00.000-08:00

In 2004 a court in California certified a class action lawsuit against Wal-Mart for discriminating against its female employees. This meant that a lawsuit on behalf of 1.6 million female employees could go ahead. Wal-Mart appealed and after years of legal wrangling in the appellate courts (which are mystifying to some of us common-law trained lawyers), the US Supreme Court will hear Wal-Mart's final appeal that the class action should not proceed. A quick summary of the issue before that court can be found at the US Supreme Court website.

October and November, 2010 BC arbitration awards results

2010-11-25T20:34:00.000-08:00

A glance at the Quicklaw database shows that in only two of the six published awards was the grievance upheld. The remaining four dismissed the grievance.

October 10, 2010 USW v. Tolko (overtime grievance ) A.118/10 dismissed by arbitrator Joan Gordon
October 12, 2010 USW v. Tolko (contracting out grievance) A.117/10 upheld by arbitrator Joan Gordon
October 15, 2010 West Fraser Mills v. USW 1-1937 (severance pay for permanent partial closure) A.114/10 upheld by arbitrator Emily Burke
October 20, 2010 Northgate Minerals (Kemess Mine) v. IUOE 115 (contracting out grievance) A.119/10 dismissed by arbitrator John Kinzie
October 22, 2010 Otis v. Union of Elevator Constructors Local 82 (work assignment grievance) A.111/10 dismissed by arbitrator Mark Brown
November 5, 2010 USW 417 v. Aspen (dismissal grievances) A.120/10dismissed by arbitrator Judy Korbin

damages for wrongful dismissal

2010-11-25T20:00:00.000-08:00

Here's a nice little case on punitive damages for wrongful dismissal.
http://www.courts.gov.bc.ca/jdb-txt/SC/10/16/2010BCSC1650.htm

The BC Court of Appeal on Attendance Management Programs

2010-10-18T19:50:00.000-07:00

The BC Court of Appeal released its decision in a long-standing dispute between the union representing bus drivers and the Coast Mountain Bus Company Ltd, a subsidiary of Translink that operates the bus system in the Lower Mainland: Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada (CAW-Canada), Local 111. The union was successful at the Human Rights Tribunal in establishing that the application of the company's attendance management program amounted to systemic discrimination on the basis of disability. That decision was set aside by a judge of the Supreme Court of British Columbia. The union appealed to the BC Court of Appeal to reinstate the original tribunal decision.

The court allowed the appeal and restored the tribunal's order in part. The court found that there was sufficient evidence of adverse treatment of disabled employees through the application of the attendance management program. Disabled employees had to meet attendance parameters developed without taking into account their disabilities and their employment was at greater risk than non-disabled employees whose attendance was also managed through the program. This amounted to prima facie discrimination and the burden was on the employer to prove that the discrimination was justified as a bona fide occupational requirement. In this part of the judgment, at paragraph 80, the court distinguished the Supreme Court of Canada's decision in McGill University Hospital on the basis that the facts of this case did not involve a negotiated provision, as was the case with the long term disability benefit in McGill. This is an important point for unions to take into account when considering whether to negotiate attendance management programs or allow the employer to establish policies unilaterally.

In reaching the conclusion that the employer had failed to prove justification on the basis of a bona fide occupational requirement, the court reviewed the impact of the Hydro-Quebec decision on the third element of the BFOR test set out by the SCC in Meiorin, and found that the Meiorin test has not been altered by Hydro-Quebec . At paragraph 88 the court writes:

[88] In Meiorin, McLachlin J. stated that, in order to show that a work standard is reasonably necessary, an employer must demonstrate it is impossible to accommodate the employees with the protected characteristics without imposing undue hardship on the employer. She was not saying the employer must show it is impossible to accommodate those employees. Rather, she was saying the employer must show it is impossible without causing undue hardship. In my view, Deschamps J. was saying the same thing in para. 16 of Hydro-Québec.

The court also confirmed that the standard of review in cases such as this which involve questions of mixed fact and law is correctness.

BC Supreme Court decision on promissory estoppel in labour arbitration

2010-10-14T22:47:00.000-07:00

In a recent decision Telus Communications Inc. v. TWU http://www.courts.gov.bc.ca/jdb-txt/SC/10/14/2010BCSC1429.htm, the British Columbia Supreme Court had occasion to review the doctrine of promissory estoppel and its application in labour arbitration. The court confirmed that there must be a finding that the promissor intended to affect legal relations and that the representation must have been unambiguous and precise for a promissory estoppel to be established.
The case is a good reminder to ensure that statements are clear and free of ambiguity; and that, even where an employer or a union says that it has no intention of enforcing its legal rights under an agreement, they may still assert those rights unless there was an intention to alter them.

Arbitrator awards damages for unfair labour practice even when there's no breach of collective agreement.

2010-10-14T10:28:00.000-07:00

In a recent decision, Arbitrator Stan Lanyon,Q.C., awarded damages under s.5 of the Labour Code, even though he found there was no breach of the Collective Agreement. In B.A. Dawson Blacktop Ltd. v. Teamsters,Local Union No. 213 (Fraser Grievance)[2010] B.C.C.A.A.A. No. 141, the union filed a grievance under the collective agreement that the employer had failed to recall the grievor and also alleged that this was contrary to s.5 of the Labour Code as it was done in retaliation for the grievor's participation in a previous subcontracting-out grievance. Lanyon ruled that the collective agreement had not been breached as the grievor was not entitled to recall. The employer failed to call evidence as to why, following the arbitration of a previous grievance in which Mr. Fraser had participated, it had had recalled the grievor who had been third on the dispatch list while it recalled others lower on the list. The arbitrator ruled that the union had established that the failure to recall was due to retaliation and s.5 of the Code had been breached.

Comparative Labour Law

2010-07-18T17:57:00.000-07:00

I'm at Queen's University's Bader International Studies Centre in South Sussex, England for two weeks, taking a course on Comparative Labour Law organized by Prof. Bernie Adell who is also the editor-in chief of the Canadian Labour and Employment Law Journal. The course will focus on labour law in the European Union with an emphasis on the UK and Germany. One of the attractions is that it is being offered in the restored castle at Herstmonceaux, not too far from Hastings, where the famous battle of 1066 was fought. The castle is real; it has a moat and expanses of gentle English rolling hills that surround it. The student residence a few minutes from the main building is a tad rustic, but the view from my window is lovely. On the way back from dinner I saw the dome of an old observatory open and reveal a huge telescope that was then directed towards the setting sun. We're far away from city or even village lights.
The course promises to be intense and interesting. A feature that I find fascinating is that European trade unions are recognized as "social partners" in the European Union's founding treaties and documents. The contrast with how trade unions are regarded officially, and unofficially, in Canada is stark.

Older posts

2010-03-10T22:08:00.002-08:00

Below are a series of older posts from my previous blog.

Adoptive mothers entitled not entitled to parental, not maternity, benefits.

Adoptive mothers are not entitled to the same level of maternity benefits as biological mothers. That's the effect of a January 24, 2008 decision of the Supreme Court of Canada denying leave to appeal to a a woman who, after adopting two children, sought parental and maternity benefits under the Employment Insurance Act. She was awarded the 35 weeks of parental benefits, but not the additional 15 weeks of maternity benefits on the basis that the latter were for the purpose of allowing biological mothers recover from pregnancy and childbirth.
The case is Patti Tomasson v. Attorney General of Canada (F.C.) . The Federal Court of Appeal decision can be found at the following link:
http://decisions.fca-caf.gc.ca/en/2007/2007fca265/2007fca265.html

An expedited process for harassment complaints

The grievance arbitration process is often an inadequate tool to resolve harassment disputes. One significant drawback is that it takes too long from the time a grievance is filed until it is heard at arbitation. Partly, that is because collective agreements, quite properly, set out various stages of the grievance procedure to allow the parties the opportunity to discuss and try to resolve matters without resorting to arbitration. More significantly though it is because once the discussion stages are completed it takes months to get to a hearing and get decision from an arbitrator.
Meanwhile, the harassment complaint languishes unresolved, with the victim at home sick with depression or some other form of mental distress, the alleged harasser in the workplace also unsure of what his or her future might hold, and the amount of potential damages that the employer may have to pay in the end increases.

So it's refreshing when arbitrators, rather than awarding the usual systemic remedy directing an employer to institute a policy and tell the union about it, take the extra step and impose a speedy arbitration process of harassment grievances. Vince Ready did just that in a decision issued February 6, 2008 involving CUPE Local 394. In its submission the union had proposed an expedited process and, to its credit, the employer did not oppose the proposal.

For a period of two years, which roughly coincides with the remaining term of the collective agreement, Mr. Ready ruled that harassment issues will be dealt with as follows:

A. There will be a three member panel made up of Vince Ready as chair and sole decision maker, Naz Mitha or Fran Doyle as the employer advocate and advisor to the chair and Carmela Allevato as the union advocate and advisor to the Chair.
(Comment: On behalf of the Union, I urged that there be a standing panel to deal with these kinds of issues so that we would be able to monitor the changes in workplace culture and to make systemic recommendations.)

B. Prior to bringing any matter before the panel, the union must present the matter to the employer's representative, in writing, to allow the employer ten days to attempt to resolve the matter. Similarly, the employer must present any matter to the union executive, in writing, to allow the union ten days to attempt resolution. In either case, if resolution cannot be reached within ten days, subject to the mutual agreement of the parties to extend the time to effect a resolution, the matter may come before the panel for a determination.
(Comment: There are two important features to this section. The most significant one of course is the ten day time limit. If the parties can't resolve a complaint within ten days it goes to the panel. The other feature is that the matter has to be presented in writing. This in my view is more than just the usual "failure to provide a harassment-free workplace". It forces the parties to do more work at the front end of an issue with a view to being precise about the complaint and the remedy sought.)

C. The determination of any issue brought to the panel under this expedited process will be non-precedential unless the parties (Union and Employer) mutually agree otherwise.

D. The parties agree that to the extent necessary to effect the recommendations herein, this document supersedes the grievance/arbitration procedure under the Collective Agreement between the parties.
(Comment: Here we find recorded the agreement between the union and the employer that they are willing to try a different way to address these issues. Note that agreement is necessary because an arbitrator does not have authority to amend the collective agreement.)

E. In coming to any decision or resolution, the panel will have regard to not only the issues, but a broader context of the appropriate educational programs for the City staff and Works Yard employees and will make recommendations to that effect.
(Comment: This section deals with the fundamental issue that underlies the creation of a respectful workplace. It is not enough to deal with the individuals directly or immediately affected by the harassment. Those on the periphery of the harassment are essential to the culture shift that is required if we are ever to end this blight.)

Will this process work? We don't know, but we will have an ability to measure, by the end of the two years, whether progress has been made. To quote Mr. Ready:

Such a procedure hopefully will help the parties come to a better understanding of the appropriate norms of acceptable workplace conduct but more importantly, will provide quick execution of future claims (unlike the present case which has taken nearly five years to conclude).
read local paper report at the link below:

http://www.canada.com/richmondnews/news/story.html?id=238212bf-8695-4709-b73c-c3a2fcc34e8f

Thursday, March 13, 2008
Bill C-45 First Conviction

Following the disaster in the Westray Mine the Federal Government amended the Criminal Code to extend criminal liability to corporations for criminal negligence causing bodily harm or death. Bill C-45 also referred to as the "corporate killing law" or the "Westray disaster law" was made law in 2004.

The first conviction under Bill C-45 took place in December 2007 when a Quebec company entered a guilty plea on a charge of criminal negligence causing the death of a 23 year old worker who was crushed to death by a machine that stacks concrete blocks. WCB had earlier directed the company to fix the faulty machine but nothing had been done.

At the sentencing hearing late February 2008, the prosecution and the defence made a joint submission that a fine of $100,000 be imposed. The judge's decision on sentencing will be handed down on March 17, 2008. The case is being watched closely by the labour relations and occupational health and safety communities. I'll have more on this issue after the March 17 decision.
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

Thursday, March 6, 2008
Is a union entitled to information about its members?

A union asks the employer to provide an up to date list of bargaining unit employees with contact information or information about their wages and benefits. Does the employer have to provide this informations?

1. During contract negotiations--yes
Governor and Company of Adventurers of England Trading into Hudson's Bay -and- UFCW Local 1518 BCLRB B226/2004

In a 2004 decision the Labour Relations Board ruled that refusing to provide a union with the list of employees and their wages and benefits was a breach of the duty to bargain in good faith. The union had requested the information during the course of collective bargaining and when the employer refused, alleging that the Personal Information and Protection of Privacy Act (PIPA) prevented it from doing so, it filed a complaint with the Labour Relations Board.
The Board agreed with the union and ordered that the information be provided. The decision can be found at:
http://www.lrb.bc.ca/decisions/B226$2004.pdf

2. During the term of a collective agreement --yes

In P. Sun's Enterprises (Vancouver) Ltd. (Hotel Grand Pacific), BCLRB No. B301/2003 the union had requested a list of employees and their home address and home telephone number. The employer refused arguing that the union had other ways that it could obtain the information. The Board was of the view that the in order to carry out its statutory obligation of representing its members a union has to have the ability to communicate with its members. Where it is relatively easy and inexpensive for an employer to provide the information requested and where the only reason for denying the information is concern about employee privacy, an employer must provide that information otherwise it risks committing an unfair labour practice.

The decision can be found at
http://www.lrb.bc.ca/decisions/B301$2003.pdf

For more information about employee personal information and obligations under BC privacy legislation, check out the Office of the Information and Privacy Commissioner website at: http://www.oipc.bc.ca/

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

Thursday, January 31, 2008
links to cases on damages in harassment cases

Charlton v. Ontario (Community Safety and Correctional Services), 2007 CanLII 24192 (ON P.S.G.B)

http://www.canlii.org/en/on/onpgb/doc/2007/2007canlii24192/2007canlii24192.html

Toronto Transit Commission v. Amalgamated Transit Union, 2004 CanLII 55086 (ON L.A.)

Tuesday, February 5, 2008
More on Harassment--lessons from Quebec

I've been asked to participate on a talk show on the topic of workplace harassment and bullying this afternoon. While preparing for Christy Clark's show, I decided to check out the Quebec Labour Standards Commission report on the first three years of their legislation that prohibits workplace psychological harassment. Psychological harassment is described as "any vexatious behaviour in the form of repeated or unwanted conduct, verbal comments, actions, gestures that affect an employee's dignity or psychological integrity and that results in a harmful work environment for the employee. A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment." Collective agreements are deemed to contain a provision prohibiting psychological harassment. Accordingly complaints that are handled by the Commission tend to be from non-union employees, since unionized employees have access to the grievance procedure.

The facts were astounding and provide good support for similar legislative change in other provinces. The Quebec legislation became effective in June 2004. By June 2007 the Commission had received 6850 complaints from non-union employees. In 75% of the complaints the employer or an employer's representative was identified as the harasser. Over 60% of the complainants were women. 50% of the complainants had tried to resolve the complaint directly on their own before filing the complaint with the Commission and failed. Once filed, there was a 90% rate of resolution without hearing with assistance from Commission staff. About half of the complaints that went to hearing were upheld.

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

Monday, November 12, 2007
Skinnydipper Services Inc v. City of Surrey, 2007 BCSC 1625
"For those who came of age in the 1960s, skinnydipping would hardly seem to be a threat to the moral fibre of western civilization. Not so, however, for some of the good burghers of Surrey. When a local newspaper published a story that the Newton Wave Pool, a public facility in Surrey, was being used by a group of nudists or naturists for a late night private members only nude swim, they balked.

Indeed, many in the community called employees of Surrey to express their outrage. Some of the complainants, according to the affidavit evidence filed, said that not only did they think the nudist event was an inappropriate use of a community resource, they added that if it continued, they would never use the Newton Wave Pool again.

One is reminded of Dysart J.’s description of the complainants in Mitchell v. Martin and Rose (1925), 1 W.W.R. 500 (K.B.) at p. 501, where he wrote that they were “annoyed and angered by what they saw and heard, and shocked by what they had neither seen nor heard, but suspected”.

Thus begins BC Justice Williamson's decision in which he strikes down Surrey's bylaw requiring that all persons using its beaches or swimming facilities be clothed.

The underpinning of the decision is the structure of Canada's Constitution where the federal government has exclusive jurisdiction over criminal law. The Criminal Code of Canada regulates nudity and any laws regarding that subject matter are outside the ability of municipalities, which are creatures of the provincial government, to enact.

What, if anything, does this decision have to do with labour law you might ask?

Well, municipal employees of the City of Surrey are members of CUPE Local 402.

One of the arguments that Surrey used to justify its position before the Court, was that it would be unable to provide lifeguards for the naked swim. His Lordship was not convinced. Surrey's own affidavit material showed that when the pool was rented out, management did not assign staff, as this was beyond their regularly scheduled hours. Rather they asked for volunteers to do overtime. And, according to the filed evidence, there had always been enough volunteers to staff the nudist swim. The judge also didn't give much credence to Surrey's argument that this arrangement discriminated against those lifeguards who didn't volunteer because they lost overtime and seniority hours. His Lordship dismissed this argument with the following:

"By that logic, if a lifeguard was of a particular religious group that objected to working on the Sabbath, be it Saturday or Sunday, then Surrey would have to close the pools on that day so as to not deprive those persons of the right to overtime or advances in seniority because of their religious beliefs. I do not find that a reasonable justification for cancelling the permits."

The URL of the complete decision is:
http://www.courts.gov.bc.ca/Jdb-txt/SC/07/16/2007BCSC1625.htm

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.

Sunday, November 23, 2008
Timelines in collective agreements
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

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.

Tuesday, February 12, 2008
Will you still get benefits after 65?...The end of mandatory retirement and employment benefits
In January, 2008 British Columbia joined a number of other Canadian provinces and changed the Human Rights Code to prohibit discrimination against employees who are sixty five years or older. The immediate impact is that collective agreement provisions that say employees must retire at age sixty five are no longer enforceable. How this will play out in the workplace remains to be seen. However it is clear that employers, and unions, will have to brush up on the meaning of the duty to accommodate when it comes to older employees in the workplace.

Another issue that has come up is how this amendment affects the availability of benefits to employees over the age of sixty five.

Under s. 3(b) of the BC Human Rights Code the prohibition on discrimination on the basis of marital status, physical or mental disability, sex or age, doesn't apply to "the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employee."(emphasis added)

The legislative intent then is clear that there can be different levels of coverage for employees depending on their age. But, this doesn't mean that group benefit or insurance plans (or indeed even retirement or pension plans) should not be reviewed to ensure that they meet the "bona fide" test outlined by the Supreme Court of Canada in Zurich Insurance Co. v. Ontario Human Rights Commission http://scc.lexum.umontreal.ca/en/1992/1992rcs2-321/1992rcs2-321.html.

To justify a discriminatory plan (and remember, age is only one way that they can discriminate)
the employer will have to establish the following:

1. that the plan was adopted honestly, in the interests of sound and accepted business practice, and not for the purpose of defeating the rights protected by the Code (i.e. for the purpose of discriminating for example)

2. the age-based distinction was based on a sound and accepted insurance or pension practice; and

3. there was no practical alternative to the age-based distinction, having regard to all the facts of the case.

In my view it is the last point that may generate some results. It's important for unions to put the employer to the test, particularly at the bagaining table. Unions, as well as employers, should investigate the availability and the cost of benefit plans that have no age or a higher than usual age limit. It seems to me that the range of practical alternatives will have to broaden as more and more people work beyond the traditional retirement age.

It's also important to look closely at the collective agreement language to see whethere there is an obligation on an employer to continue to provide health benefits beyond age sixty five.

A recent arbitration award out of Ontario Corporation of the City of London and CUPE Local 101 found that where a collective agreement provides benefits to "all employees" the effect of the elimination of mandatory retirement meant that employees over sixty five were covered

http://www.canlii.org/en/on/onla/doc/2004/2004canlii55086/2004canlii55086.html

Pictures posted on Facebook cast doubt on plaintiff's injuries

2010-03-04T13:39:00.000-08:00

I can't resist this one.

Yet another example that should caution people about the impact of Facebook.

In MacIntyre v. Pitt Meadows Secondary School, 2010 BCSC 256 – 2010/03/01 the plaintiff sought damages for injuries to his knee from a motor vehicle accident. In recounting why he declined to award any damages the judge wrote that there were inconsistencies between the damage the plaintiff asserted he had endured and the evidence:

e) Numerous Facebook photographs were entered as exhibits. They show Evan playing football, kneeling while he poses with friends, sitting curled up in a clothes-dryer, kneeling on a tube while being towed behind a boat, and performing many other activities without apparent difficulty.

It's not clear whether Evan posted these himself or whether he was tagged in a photo. But in any event the message is clear.

Judicial standard of review under the Administrative Tribunal Act of British Columbia

2010-03-04T13:08:00.000-08:00

Most Canadian lawyers practicing administrative law heaved a sigh of relief when in 2008 the Supreme Court of Canada in Dunsmuir v. New Brunswick clarified the law on the standard that judges must apply when reviewing a decision of an administrative tribunal. All that counting of "how many angels were dancing on the head of a pin" as we tried to figure out whether the standard was "reasonable" or "patently unreasonable" ended. From now the standard was either "correctness" or "reasonableness" depending on the particular circumstances.

Unfortunately it was too late for lawyers in British Columbia. The provincial government a few years earlier had codified "patently unreasonable" as the standard applicable to judicial reviews of decisions of administrative tribunals listed in the Adminsitrative Tribunals Act of British Columbia. One such tribunal is the Labour Relations Board; another is the Workers' Compensation Appeal Tribunal.

Recent court decisions, including one from the BC Court of Appeal, have sought to incorporate some of the common law principles articulated in Dunsmuir within the context of the Act. However, a recent BC Supreme Court decision issued a note of caution. In the March 4, 2010 Jensen v. Worker's Compensation Appeal Tribunal decision, the court confirmed that the "applicable standard of review is patent unreasonableness". The court went on to try, as many other courts have done in the past, to provide some guidance on how to figure out what is "patently unreasonable":

[80] In summary, a patently unreasonable decision is one that does not accord with reason or is clearly irrational: Canada (Attorney General) v. Public .Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-64, (1993), 101 D.L.R. (4th) 673 at 14. It is not for the court on judicial review to re-weigh the evidence; second guess the conclusions drawn from the evidence considered; substitute different findings of fact or inferences drawn from those facts; or conclude that the evidence is insufficient to support the result. Only if there is no evidence to support the findings, or the decision is “openly, clearly, evidently unreasonable”, can it be said to be patently unreasonable. Courts have continued to apply these principles post-Dunsmuir: Manz, at para. 37; Buttar, at para. 56; Bagri v. Workers’ Compensation Appeal Tribunal, 2009 BCSC 300 at para. 25; Asquini, at para. 80; Tallarico, at para. 55; and Lavigne, at para. 127. However, there remains some debate concerning the proposition that the reviewing court should focus on the result and not the reasoning. The B.C. Court of Appeal held that if a rational basis can be found for the decision it should not be disturbed simply because of defects in the tribunal’s reasoning: Kovach v. Singh, (1998), 52 B.C.L.R. (3d) 98 (C.A.) at para. 26 adopted by the SCC in Kovach v British Columbia (Worker’s Compensation Board), 2000 SCC 3, [2000] 1 S.C.R. 55. Furthermore, in Dunsmuir, the Court stated that deference requires respectful attention to the reasons offered or which could be offered in support of a decision: Dunsmuir, at para. 48. However, the B.C. Court of Appeal has recently stated that this principle should be applied with considerable caution and that a court cannot properly be said to defer to a tribunal when it ignores the tribunal’s reasoning and fashions its own rationale for the result that the tribunal reached: Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396 at paras. 50-56. The Supreme Court’s reference to reasons that “could be offered” should not be taken as diluting the duty and importance of a tribunal giving proper reasons for an administrative decision: Khosa, at para. 63. While the decision of the B.C. Court of Appeal on this issue relates to the reasonableness standard, in my view, a court should be cautious in fashioning its own rationale for the result when reviewing on a standard of patent unreasonableness.

[81] In summary, the applicable standard of review is patent unreasonableness. In applying this test, the issue for the Court on this application is whether there is some evidence in the record on which such findings could be made. The Court is not entitled to re-weigh and assess the sufficiency or insufficiency of the evidence.

Now if only the angels would stop dancing perhaps we could get an accurate count!

(for a recent application of the Dunsmuir test see the Court of Appeal decision in Salway v. Association of Professional Engineers at http://www.courts.gov.bc.ca/jdb-txt/CA/10/00/2010BCCA0094cor1.htm)