Thursday, December 22, 2011

October 2011 BC Arbitration Awards of Note

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,  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), 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), 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 employement of employees on WCB was not terminated even though the mill closed.  They continued to be employees.  However, whether or not their employment terminated when they were no longer receiving workers compensation benefits and were then entitled to severance allowance was outside of the scope of that particular grievance.

Telus Communication v. TWU , 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, 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.

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