Carmela Allevato's Labour Law Blog

Timelines in collective agreements

noreply@blogger.com (Carmela Allevato) — Sun, 23 Nov 2008 20:07:00 +0000

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.

union workplace campaigns

noreply@blogger.com (Carmela Allevato) — Tue, 04 Nov 2008 16:23:00 +0000

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.

The right to remain silent in disciplinary investigations: does it really exist?

noreply@blogger.com (Carmela Allevato) — Fri, 25 Jul 2008 14:26:00 +0000

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.

No criminal charges for BC company whose negligence killed a worker: Where's the justice?

noreply@blogger.com (Carmela Allevato) — Sat, 19 Apr 2008 00:47:00 +0000

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

Is this the final chapter in the 2004 Telus labour dispute?

noreply@blogger.com (Carmela Allevato) — Sun, 06 Apr 2008 00:55:00 +0000

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

Court upholds permanent last chance agreement

noreply@blogger.com (Carmela Allevato) — Wed, 02 Apr 2008 15:53:00 +0000

In a decision issued on March 26, 2008 the Honourable Madam Justice Lynn Smith upheld the award of Arbitrator Blasina in CUPW -and- Canada Post to "suspend" an employee's termination so long as he complied with the terms of a last chance agreement that was to last during the rest of the grievor's employment.

The union sought judicial review of the decision arguing that making the last chance agreement permanent was contrary to the Canada Human Rights Code because it subjected the grievor to higher standard of conduct than other employees on the basis of his disability. In addition the union challenged the power of the arbitrator to take into account expert evidence he had heard in other cases about the nature of addiction.

The judge ruled against the union on both grounds. The most interesting ground, for the purpose of labour relations, is the human rights discussion, brief as it is, in the judgment. The judge found that the decision of the arbitrator was "intelligible and fell within the range of possible, acceptable outcomes which are defensible in this case".

The factual underpinnings of this conclusion are set out in paragraph 62:

"The Grievor had, over a five-year period, received accommodation for his disability and assistance in overcoming it. He had told the employer that he continued to have a problem with his addictions, and that he did better when he was subject to terms and conditions. The reasoning process of the arbitrator was sufficiently clear. There was evidence before him (without reference to the evidence from other hearings that he mentioned) upon which he could reasonably conclude that the remedy he fashioned amounted to reasonable accommodation as that concept is defined in human rights jurisprudence. There was evidence before the arbitrator upon which he could reasonably conclude that conditions of shorter duration would be ineffective and would impose undue hardship on the employer. "

The case is also important as it contains a good discussion of the impact of the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9. In that case, the SCC eliminated the "patently unreasonable" test that had plagued legal minds for eons. Madame Justice Smith discusses how in the remaining "reasonableness test" there are gradations of deference and quotes from the relevant passage from the SCC decision:

"Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."

The decision may be found at
http://www.courts.gov.bc.ca/Jdb-txt/SC/08/03/2008BCSC0338.htm

The Queen v. Transpave--sentencing imposed

noreply@blogger.com (Carmela Allevato) — Fri, 21 Mar 2008 15:18:00 +0000

On March 17, 2008 a Quebec judge sentenced Transpave Inc. to a fine of $100,000 for criminal negligence causing the death of one of its employees and $10,000 for costs. The Crown and defence made a joint submission indicating to the judge that there was an agreement that this was an appropriate sentence. Although not binding on judges, such agreements are usually followed by the courts.
In imposing the fine, Judge Chevalier noted that since the crime, Transpave had spent half a million dollars to bring its plant up to European safety standards, higher than the prevailing North American standards.
Transpave is a paving stone manufacturer. Twenty-three year old Steve L'Ecuyer died when he was crushed by a machine that had been the subject of WCB safety infraction orders ignored by the company.
The French language version of the decision may be found at http://www.jugements.qc.ca/php/decision.php?liste=28455118&doc=575C44065A501B00

Bill C-45 First Conviction

noreply@blogger.com (Carmela Allevato) — Thu, 13 Mar 2008 13:25:00 +0000

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.

Is a union entitled to information about its members?

noreply@blogger.com (Carmela Allevato) — Fri, 07 Mar 2008 03:11:00 +0000

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/

Will you still get benefits after 65?...The end of mandatory retirement and employment benefits

noreply@blogger.com (Carmela Allevato) — Tue, 12 Feb 2008 22:12:00 +0000

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.

An expedited process for harassment complaints

noreply@blogger.com (Carmela Allevato) — Thu, 07 Feb 2008 16:27:00 +0000

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

More on Harassment--lessons from Quebec

noreply@blogger.com (Carmela Allevato) — Tue, 05 Feb 2008 20:00:00 +0000

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.

Adoptive mothers entitled only to parental leave

noreply@blogger.com (Carmela Allevato) — Tue, 05 Feb 2008 03:28:00 +0000

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

links to cases on damages in harassment cases

noreply@blogger.com (Carmela Allevato) — Thu, 31 Jan 2008 22:17:00 +0000

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.)

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

What damages should employers pay in harassment cases?

noreply@blogger.com (Carmela Allevato) — Thu, 31 Jan 2008 11:36:00 +0000

I've recently had occasion to read a number of cases of workplace harassment that causes mental suffering and a worker ends up leaving their employment. The question I was researching was how much should an employer pay?

As we know, where the harassment includes a prohibited ground of discrimination under the Human Rights Code (race, gender, sexual orientation, place of origin, colour, religion, family status etc. see s.8 of the Code), the Human Rights Tribunal has authority to grant damages for loss of dignity and hurt feelings. Only in the last year and a half have we seen the Tribunal award more than the usual paltry $3000 damages. In Hashimi v. International Crowd Management (2007 BCHRT 66) they awarded $10,000 and in Toivanen v. Electronic Arts(2006 BCHRT 396)the amount of damages was $20,000. Toivanen is a good case to read because it was well argued and the Tribunal awarded lost wages, lost benefits, legal fees and interest as well.

The highest amount of general damages awarded by a court in British Columbia to an employee who was sexually harassed in the workplace such that she became ill with depression and was unable to work was $125,000. This was the case of Sulz v. Canada (AG) where the court found that the plaintiff, a female former RCMP officer, had established the tort of negligent infliction of mental suffering.

In arbitration cases, the sum of $20,00 -$25,000 is not uncommon for cases where there has been personal harassment (i.e. non discrimination harassment). See the Charlton case from Ontario and the TTC (Stine grievance) case, also from Ontario.

Government and Health Unions strike a deal on Bill 29

noreply@blogger.com (Carmela Allevato) — Thu, 31 Jan 2008 11:00:00 +0000

Last June the Supreme Court of Canada struck down portions of Bill 29 for being in breach of the s.2(d) of the Charter of Rights and Freedoms. This landmark decision ruled that the freedom of association guaranteed by s. 2(d) included the right of unions to collective bargaining. The Court gave the BC government a year to deal with the consequences of the decision. Among the provisions that were struck down was the one that removed contracting out protection from the collective agreement. This was the provision that allowed health employers to contract out nearly all non-direct patient care services taking good paying jobs away from 8000 workers and creating a ghetto of low payinng cleaning, dietary and other support work. The question was what to do about all the workers who had lost their jobs.

This week the health unions and the government announced that they had reached an agreement that would see over 70 million dollars allocated to deal with the laid off workers.

It might seem like a paltry amount when looked at in the context of what each of those workers lost. And of course it is. But it's good news that a deal was struck. The government's strategy was obviously one of testing the strength of the Supreme Court's decision. For the decision essentially says that the obligation on the government is to engage in good faith bargaining and only after that has failed, can the government resort to legislation. The decision says a lot more, of course, but for this purpose, that's what the government would rely on. In other words, negotiate, but if there's no agreement, pass legislation to impose what you failed to negotiate, or worse. As for redress for all those workers who lost their jobs, the government no doubt counted on the Hislop case, another SCC decision, that says these kinds of rulings have no retrospective application. My suggestion then is that absent a deal the unions were gambling that the government would pass bad legislation that could very well survive a court challenge, and the laid off workers could have ended up with nothing. That's why it's good news that a deal was struck.

Hybrid Discipline

noreply@blogger.com (Carmela Allevato) — Wed, 14 Nov 2007 22:33:00 +0000

I was a panelist at Insight's Labour Law Conference this morning dealing with workplace accommodation issues. My panel dealt with hybrid discipline.

My co-panelist was Arbitrator Stan Lanyon who decided the Gooding decision, now on its second round of reconsideration before the BC Labour Relations Board. In British Columbia, the BC Labour Relations Board has decided that when there is a causal connection between workplace misconduct and a disability then arbitrators (and employers) must determine which part of the misconduct is due to a disability, and thus non-culpable, and which part is not affected by the disability and is thus within the control of the employee and is culpable. Each category of conduct is analyzed using the appropriate approach: Wm. Scott test to the culpable and the Meioirn test to the non-culpable conduct. The BC Court of Appeal has confirmed that those two tests must be kept separate. An arbitrator can fashion a remedy that takes into account both approaches. So for example, in Gooding, where a liquor store manager who had an alcohol addiction stole liquor from his employer, the arbitrator, applying the hybrid discipline theory, ordered reinstatement with a last chance agreement (this is a thereapeutic non-culpable approach) to a lower rated position (this is the culpable discipline approach). Employers, unions, and indeed arbitrators are struggling with fashioning appropriate remedies. Hopefully the Labour Relations Board will take the opportunity in its review of the Gooding award to refine this area of labour law.

On another note, even if there is no nexus or causal link between the disability and the misconduct, and the case is to be approached on a purely culpable basis, the fact that a grievor suffers from an addiction or a mental disability is one of the circumstances that arbitrators, and employers, must take into account under the second and third questions in Wm. Scott (i.e. is the discipline excessive in all of the circumstances and if it is, what is appropriate?)

The BCLRB decision in Fraser Lake Sawmills can be found at: http://www.lrb.bc.ca/decisions/B213$2002.pdf

The BC Court of Appeal decision in HEABC v. BCNU (Bergen) can be found at:
http://www.canlii.org/en/bc/bcca/doc/2003/2003bcca608/2003bcca608.html

The Insight Conference URL is: http://www.farris.ca/News/attachments/159/Duty%20to%20Accommodate%20Conference%20Brochure.pdf

Skinnydipper Services Inc v. City of Surrey, 2007 BCSC 1625

noreply@blogger.com (Carmela Allevato) — Tue, 13 Nov 2007 04:20:00 +0000

"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