tag:blogger.com,1999:blog-74417317539354142702024-03-12T19:15:30.390-07:00Carmela Allevato's Labour Law BlogInformation of a general nature for union activists in British Columbia.Unknownnoreply@blogger.comBlogger59125tag:blogger.com,1999:blog-7441731753935414270.post-3918285571534706322016-01-08T15:27:00.001-08:002016-01-08T15:27:51.438-08:00Visit www.aqwlaw.ca for current blog posts<div dir="ltr" style="text-align: left;" trbidi="on">
The content of this blog has migrated to the webpage of the law firm Allevato Quail & Worth which can be found at <a href="http://www.aqwlaw.ca/">www.aqwlaw.ca</a>. Please visit us there.<br />
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-15283940977372784902015-01-30T12:28:00.006-08:002015-01-30T12:32:21.664-08:00Right to Strike Protected by the Charter <div dir="ltr" style="text-align: left;" trbidi="on">
Today the Supreme Court of Canada issued the decision in the Saskatchewan Federation of Labour case on the right to strike---and yes, it is constitutionally protected. <br />
The case can be found at the SCC website at <a href="http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14610/index.do" target="_blank">http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14610/index.do</a>.<br />
<br />
My favourite quote from the majority 7 to 2 decision written by Madam Justice Abella is this:<br />
<br />
<em><span style="line-height: 200%;">[3]<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span><span style="line-height: 200%;">The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund and Bob Hepple recognized: </span></em><br />
<div class="Citation-AltCCxSpFirst">
<em>The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places. A legal system which suppresses that freedom to strike puts the workers at the mercy of their employers. This <b>— </b>in all its simplicity <b>— </b>is the essence of the matter. </em></div>
<div class="Citation-AltCCxSpMiddle">
<em> </em></div>
<div class="Citation-AltCCxSpLast">
<em>(Laws Against Strikes (1972), at p. 8) </em></div>
<div class="ParaNoNdepar-AltN">
<span style="line-height: 200%;"><em>The right to strike is not merely derivative of collective bargaining, it is an indispensable component<b> </b>of that right. It seems to me to be the time to give this conclusion<strong> constitutional benediction</strong></em>. (my emphasis).</span></div>
<div class="ParaNoNdepar-AltN">
<span style="line-height: 200%;"></span> </div>
<div class="ParaNoNdepar-AltN">
With this decision the 1987 Trilogy of labour cases decided just 5 years after the Charter has been completely overturned. The late former Chief Justice Dickson's eloquent dissent in that case has been vindicated. <br />
<br />
</div>
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-2389159804887006932014-12-18T14:18:00.000-08:002014-12-18T14:18:42.318-08:00Discrimination on the basis of family status<div dir="ltr" style="text-align: left;" trbidi="on">
This blog post also available <a href="http://jimquail.com/" target="_blank">Quail Worth & Allevato law blog</a><br />
<br />
I had occasion to participate on a panel at the Bargaining in the Broader Public Sector 2014 Conference organized by Lancaster House. The panel, “What’s on the Bargaining Table: Emerging Issues, Creative Solutions”, canvassed a number of topics including pensions, health and welfare benefits and work-life balance. The obligation to accommodate employees on the basis of family status came up under the topic of work-life balance. The leading case in British Columbia is <em>Health Sciences Association v.Campbell River and North Island Transition Society</em> available on Canlii at: <a href="http://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.pdf" target="_blank" title="Campbell River decision">http://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.pdf</a> .<br />
<br />
<div class="entry">
In that case the court ruled that “a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee”.<br />
<br />
The test in <em>Campbell</em> <em>River</em> has been rejected by the Federal Court of Appeal in <em>CNR v. Seeley</em> also available at <a href="http://www.canlii.org/en/ca/fca/doc/2014/2014fca111/2014fca111.pdf" target="_blank" title="Seeley decision">http://www.canlii.org/en/ca/fca/doc/2014/2014fca111/2014fca111.pdf</a> .<br />
<br />
In <em>Seeley</em>, the court found that, “in order to make out a prima facie case where an alleged workplace discrimination on the prohibited ground of family status resulting from a childcare obligation is alleged, the individual advancing the claim must show: <br />
(i) that a child is under his or her care and supervision; <br />
(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; <br />
(iii) that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and <br />
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”<br />
<br />
Note that the approach is not limited to childcare obligations, but <em>any obligation</em> to <em>any family m</em><em>ember to whom there is a legal responsibility</em>.<br />
<br />
British Columbia is an outlier when it comes to protection from discrimination on the basis of family status and sooner or later the issue will make its way again to the Court of Appeal. There a panel of five judges can reverse a previous decision. If not, the issue is sure to end up at the Supreme Court of Canada. Regardless of the state of the law, accommodating family obligations, no matter how substantial or “trivial”, is an important issue in the workplace that both employers and unions are required to try to address in a progressive and effective manner at the bargaining table.</div>
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-19654115312286454572014-11-06T11:48:00.001-08:002014-11-06T11:48:27.455-08:00I've joined Quail Worth & Allevato<div dir="ltr" style="text-align: left;" trbidi="on">
Please check our firm's blog at <a href="http://qwlaw.ca/">Quail Worth & Allevato</a> for commentaries and updates.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-31402148075863272162014-05-12T21:56:00.000-07:002014-05-12T21:56:14.144-07:00LNG and provincial taxes<div dir="ltr" style="text-align: left;" trbidi="on">
<a href="http://qwlaw.ca/qw-law-blog">Taxing LNG Exports</a><br />
<br />
Energy lawyer Jim Quail of Quail & Worth argues that the provincial government will not be able to tax liquefied natural gas exports in a blog post at <a href="http://qwlaw.ca/qw-law-blog">http://qwlaw.ca/qw-law-blog</a>. An interesting read.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-91543573988504145922014-04-22T21:12:00.003-07:002014-04-22T21:12:16.609-07:00Quail & Worth--- new law firm<div dir="ltr" style="text-align: left;" trbidi="on">
Check out <a href="http://qwlaw.ca/">Quail & Worth, Barristers & Solicitors</a> the best new labour and regulatory law firm in Vancouver !<br />
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-51558878735473202942014-02-10T12:31:00.001-08:002014-04-21T13:03:55.869-07:00Utilities Regulation and the law<div dir="ltr" style="text-align: left;" trbidi="on">
<a href="http://jimquail.com/2014/01/25/utility_regulation_part_1/">Jim Quail</a>, the Legal and Regulatory Director of COPE 378 the union representing employees of regulated utilities in our province, has written a two blog-posting primer on the regulation of utilities and the energy sector. As energy is one of the prominent policy issues facing us today, his postings are a good read. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-83512804117892033712014-02-09T12:00:00.002-08:002014-04-21T13:03:55.891-07:00Discipline Investigations--when the police is also involved<div dir="ltr" style="text-align: left;" trbidi="on">
COPE 378's Legal and Regulatory Director <a href="http://jimquail.com/">Jim Quail</a> has an informative post on issues that arise when the employer is investigating a member for misconduct that might also give rise to a police investigation. <br />
<a href="http://jimquail.com/2014/02/09/employers_and_police/">http://jimquail.com/2014/02/09/employers_and_police/</a><br />
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-23996943301181202542014-02-08T13:18:00.003-08:002014-04-21T13:03:55.851-07:00 No violation of privacy and no violation of s.2(d) of the Charter--Supreme Court of Canada rules<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: Calibri;">The Supreme Court of Canada handed down the <a href="http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13461/index.do">Bernard v. AG of Canada and PIPSC</a> decision on Friday.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: Calibri;"></span> </div>
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: Calibri;">Elizabeth Bernard complained that her employer the Federal
Government should not provide her home contact information to the union that
represented employees in the bargaining unit in which she was a member.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: Calibri;"><span style="mso-spacerun: yes;"></span>Under federal legislation Bernard could opt
out of union membership but was required to be a member of the bargaining unit
for which the union has exclusive bargaining agency with the right to union
representation and the obligation to pay union dues. This is what is referred
to a “Rand formula” employee. <o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: Calibri;">Bernard argued that by disclosing her home contact information
the employer violated her privacy as she did not consent to the disclosure. She further argued that the disclosure amounted to forced association with the union contrary to s.2(d) of the Charter of
Rights and Freedoms.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: Calibri;">The Supreme Court of Canada disagreed with her.<span style="mso-spacerun: yes;"> </span>First, privacy rights were not violated
because the disclosure was consistent with the purpose for which the
information was initially collected, i.e. for the purpose of being contacted
about terms and conditions of employment.<span style="mso-spacerun: yes;">
</span>Second, and to me most importantly, the Court ruled that the provision
of the information did not engage her s.2(d) of the Charter associational rights.</span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: Calibri;">The court confirmed that “a cornerstone of labour relations
law in this country” is the principle of majoritarian exclusivity, i.e. <span style="mso-spacerun: yes;"> </span>that the union has the exclusive right to
bargain on behalf of all employees in a given bargaining unit, including Rand
employees.<span style="mso-spacerun: yes;"> </span>It went on to find that, “the
compelled disclosure of home contact information in order to allow a union to
carry out is representational obligations to all bargaining unit members does
not engage Ms. Bernard’s freedom not to associate with the union.” (para 37) <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-3332172081907439712014-01-12T20:05:00.000-08:002014-04-21T13:03:55.855-07:00Essential Services in the lockout of IBEW workers by Fortis BC--analysis<div dir="ltr" style="text-align: left;" trbidi="on">
COPE 378 legal and regulatory director Jim Quail has a very interesting analysis of the impact of essential services on the 2013 lockout by Fortis BC of the IBEW 213 on his blog at <a href="http://jimquail.com/">http://jimquail.com/</a></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-10053628514145343862013-05-15T15:11:00.001-07:002014-04-21T13:03:55.838-07:00BC labour arbitration awards--March, 2013<div dir="ltr" style="text-align: left;" trbidi="on">
Thanks to Diane MacLean below are summaries of relevant BC Labour Arbitration awards released during March 2013<br />
<br />
<div class="MsoNormal">
<b><span style="font-size: 14.0pt; line-height: 115%;">Arbitration Summaries –
March 2013 <o:p></o:p></span></b></div>
<div class="MsoNormal">
There were three arbitrations
reported on CanLII as well as a further five reported on Quicklaw. Brief
summaries are provided for two of the CanLII decisions, as one was non-precedential, and even briefer summaries are
provided for the ones reported on Quicklaw.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii12432/2013canlii12432.html">Accenture Business Services of BritishColumbia v Canadian Office and Professional Employees Union, Local 378, 2013CanLII 12432 (BC LA)</a></span></b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">, </span>March 8, 2013 (Arbitrator Mark
J. Brown): eligibility for statutory holidays when using a time bank to bridge
(dismissed)<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Background</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The employer
(formerly BC Hydro) laid off a large number of employees. The parties had
negotiated a Memorandum of Understanding (MOU) setting out an adjustment plan
to assist employees who would be laid off. At issue was whether an employee using
a time bank to bridge to a milestone like early retirement was entitled to paid
statutory holidays during the bridging period. The collective agreement provides that an employee is entitled to
straight-time pay on holidays if, on the work days immediately before and after
the holiday, the employee was at work, on sick leave, annual vacation, on RWWL,
or approved leave of absence not greater than 10 working days. </div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The employer argued
the collective agreement provision regarding statutory holidays does not apply because
the grievor was ‘technically laid off’ and not on an approved leave of absence
and, even so, the absence was greater than 10 days. The employer also argued
that the bridging provisions of the collective agreement allow an employee to
continue to accrue service for the purpose of earning additional vacation
entitlements, but not for other purposes.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Analysis and Decision</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
arbitrator found that the collective agreement provision regarding statutory
holiday pay did not apply to the grievor. As well, he commented on the purpose
of the time bank under the MOU, that is …how employees could bridge a milestone
and what collective agreement provisions would apply while doing so”. The
provisions in the MOU stated that employees “will continue to accrue service
for the purpose of earning addition vacation entitlements”. The arbitrator
stated: “If the parties had intended that employees be eligible for statutory
holidays they would have included the reference in the first part of the
sentence as they did for accruing service. Therefore, the employees were not
entitled to statutory holiday pay during the bridging period.</div>
<div class="MsoNormal" style="margin: 12pt 0in 6pt;">
<a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii12416/2013canlii12416.html">GreatPacific Industries Inc (Division) v Teamsters Local Union No. 213, 2013 CanLII12416 (BC LA),</a> March 13, 2013 (Arbitrator
Mark J. Brown): policy and individual grievances regarding travel time and
expenses.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Background</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
collective agreement guaranteed 40 hours of work for at least 50% of the employees
on the seniority list. Prior to September 2012, the employer had two 40-hour drivers
in Nanaimo and two 40-hour drivers in Victoria. The employer lost part of its
contract resulting in route reductions and staffing changes. This
reorganization result in three 40 hour guarantee routes: one in Nanaimo, one in
Victoria, and one split between Vancouver and Victoria. </div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
One of the
individual grievors had worked a full-time position in the Nanaimo area. In her
new position, she had to work two days in Victoria and two days in Nanaimo. The
grievor found the drive to and from Victoria very long and stressful. She stayed
overnight with friends in Victoria, and received no paid travel time or
expenses. The other individual grievor worked as a relief driver in Victoria,
although he also relieved in Nanaimo. Sometimes he had been reimbursed for travel
time and expenses, and sometimes not.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The issue is
whether drivers who hold posted positions working in both Victoria and Nanaimo
are entitled to paid travel time, expenses, meal costs and accommodation costs
for travel related to working in both geographic areas. The employer said it
was aware that some employees had been paid travel expenses. However, this had
been approved by employees who did not have the authority to approve the
expense and future payments have been stopped. </div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Analysis and Decision</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
arbitrator considered when an employer would be obliged to compensate employees
for “work” and reviewed a number of cases where this issue was considered, for
example, where employees were assigned to a work site on a regular basis and
then were required by the employer to attend “an alternate location for
training, a conference, orientation or some other function”. The arbitrator
concluded that this case was different, stating:</div>
<div class="numpara1" style="margin-bottom: 6.0pt; margin-left: .5in; margin-right: .5in; margin-top: 0in; text-indent: 0in;">
<span lang="EN" style="font-family: "Calibri","sans-serif"; font-size: 11.0pt; mso-ansi-language: EN; mso-ascii-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">The Union acknowledges that the Employer can
establish routes and locations. The Union negotiated a beneficial
provision for its members wherein the Employer must create guaranteed forty
hour workweeks. Given the nature of the print media business and loss of
the ferry business the Employer created 3 fulltime routes on Vancouver
Island. Unfortunately due to business needs, one route included 2 days in
Victoria and 2 days in Nanaimo. [The grivor’s] seniority resulted in her
selecting that route; or risk not having a fulltime position. In
selecting that route, the guaranteed fulltime route involved reporting to the
two different depots. It is not a situation where her posting involves a
certain work site, and then the Employer is requiring travel to another
location.<o:p></o:p></span></div>
<div class="numpara1" style="margin-bottom: 6.0pt; margin-left: .5in; margin-right: .5in; margin-top: 0in; text-indent: 0in;">
<span lang="EN" style="font-family: "Calibri","sans-serif"; font-size: 11.0pt; mso-ansi-language: EN; mso-ascii-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">… the jobs posted under the terms of the
Collective Agreement included work in different geographic areas. Given
that, absent specific language in the Collective Agreement requiring the
Employer to pay travel time and expenses, I conclude there is no requirement
for the Employer to do so. When the parties agreed to pay expenses,
specific provisions were negotiated into the Collective Agreement...<o:p></o:p></span></div>
<div class="numpara1" style="margin-bottom: 6.0pt; margin-left: .5in; margin-right: .5in; margin-top: 0in; text-indent: -.5in;">
<a href="http://www.blogger.com/blogger.g?blogID=7441731753935414270" name="par50"><span lang="EN" style="font-family: "Calibri","sans-serif"; font-size: 11.0pt; mso-ansi-language: EN; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-hansi-theme-font: minor-latin;">The arbitrator also commented that:<o:p></o:p></span></a></div>
<div class="numpara1" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: .5in; margin-right: .5in; margin-top: 0in; text-indent: 0in;">
<span lang="EN" style="font-family: "Calibri","sans-serif"; font-size: 11.0pt; mso-ansi-language: EN; mso-ascii-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">Absent the
forty hour guarantee, the Employer may have created two twenty hour jobs – one
in Nanaimo and a second in Victoria. Such a route structure may have made
recruitment easier, but would have been less attractive to [the grievor].
The Union negotiated a forty hour guarantee for its members; but in order for
the Employer to comply with that benefit, the Nanaimo/Victoria route was
created.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<div style="text-indent: 0px;">
<span style="text-indent: -0.25in;"><b> </b></span><b><span style="font-size: 14.0pt; line-height: 115%;">Quicklaw Decisions –
Brief Summaries</span></b></div>
</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b>BC Public School Employers’ Assn. V. BC
Teachers’ Federation</b>, [2013] B.C.C.A.A.A. No. 30, March 5, 2013 (Arbitrator
David C. McPhillips): The employer filed a policy grievance alleging
that the union and its locals advised its members to refuse (and the members
did refuse) to provide to the employer advance copies of communications to
parents and refused to make changes to the communications required by the
employer. The union applied for an adjournment pending a decision of the BC
Court of Appeal from a recent arbitration award issued between the parties. The
arbitrator granted the adjournment, noting that the Court of Appeal “may, and
hopefully will, provide clear direction to these parties and establish broad
parameters dealing with the rights and responsibilities of teachers with regard
to freedom of expression and any appropriate limitations. If that proves to be
the case, it is difficult to see how it would not be helpful for the parties
and this arbitration board to have the benefit of that guidance before arguing
and determining this present matter.”</div>
<div class="MsoNormal" style="margin: 12pt 0in 0.0001pt;">
<b>Connaught Inn Ltd. V. Unite Here, Local 40</b>, [2013]
B.C.C.A.A.A. No. 29, March 5, 2013 (Arbitrator A. Paul Devine):<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The grievors, both long service employees, resigned their employment
and both requested severance pay. The collective agreement provided that all
employees upon termination
shall receive twelve (12) hours pay for each year of continuous service
(minimum one (1) year) from January 1, 1981 in the establishment. The
union relied on an 1985 award involving the same collective agreement language where
a grievor also voluntarily resigned and requested severance pay. The arbitrator
in that case gave the word “termination” a broad meaning and stated that it was
intended to cover all circumstances in which severance pay might become payable
and it did not matter how the severance obligation came about. It applied to
all ex-employees who had the necessary preconditions of time and service. The
union says that subsequent collective agreements have maintained the same
language and so the result should be the same. The employer argued that the
decision was out of date, but arbitrator remarked that the employer did not
provide any authority to substantiate that claim. The arbitrator decided that the
decision was still applicable to the interpretation of the collective agreement
and that the circumstances of this case are on “all fours” with the older
decision. Therefore the grievors are entitled to receive severance pay upon
resigning from employment. <o:p></o:p></div>
<div class="MsoNormal" style="margin: 12pt 0in 6pt;">
<b>Health Employers
Assn. of British Columbia v. Health Sciences Assn. of British Columbia</b>, [2013]
B.C.C.A.A.A. No. 35, March 15, 2013 (Arbitrator Judi Korbin): The
employer created three new positions and filled two of the positions with the
grievors. The collective agreement set out a procedure leading to binding
arbitration if the parties could not agree on the wage rate for new
classifications. The arbitrator said that the correct approach was:<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0.5in 6pt;">
… to assess the appropriate grid level (salary
structure) for the Grievors, through consideration of the incumbents’ computer
program duties and responsibilities taken together with internal comparison and
equity of positions under the collective agreement.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 12pt 0in 6pt;">
<b>British
Columbia Government and Service Employees’ Union v. Cariboo Regional District</b>, [2013]
B.C.C.A.A.A. No. 36, March 28, 201 (Arbitrator James E. Dorsey, Q.C.): The
collective agreement provided 15 days of vacation after one year of service
then an additional day per year up to a maximum of 26 days. On November 1, 2012,
the entitlement increased to twenty-eight days at fifteen years’ service, and
thirty days at twenty years’ service. The grievor started his employment in
September 1990 and therefore had more than 20 years of service. He believed he was entitled to 30 days annual
vacation in 2012, but the employer only gave him 26 days. The union argued that
the grievor was entitled to a pro-rated amount, coming into effect on November
1, 2012 (1/6 of a year). Therefore, the union argued, he was entitled to 1/6 of
4 days’ vacation. The employer argued that only employees who had an
anniversary date in November or December were entitled to the. The arbitrator
held that the increased entitlement was for all longer service employees and
not a subset of employees whose anniversary date happened to be in November or
December and was to be prorated as described by the union.</div>
<div class="MsoNormal" style="margin: 12pt 0in 6pt;">
<b>United
Steel Workers Local 9705 v. Kootenay Savings Credit Union</b>, [2013]
B.C.C.A.A.A. No. 39, March 28, 2013 (Arbitrator Marguerite Jackson, Q.C.): The
grievor worked as a Senior Reconciliation Clerk. The union argued that the
majority of the job duties of the position had not been transferred to other
bargaining unit positions, but were being done by a particular excluded
employee in violation of a provision of the collective agreement which
prohibited excluded employees from doing bargaining unit work if that work was
sufficient to employ a regular bargaining unit employee. The employer says only
a small number of the duties had been assumed by excluded employees and were not
sufficient to create a bargaining unit position. The arbitrator noted the
following:</div>
<div class="MsoListParagraphCxSpFirst" style="margin-bottom: 6pt; text-indent: -0.25in;">
<!--[if !supportLists]--><span lang="EN-CA" style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt;">
</span></span><!--[endif]--><span lang="EN-CA">The provision does not prohibit
the assignment of all bargaining unit to excluded employees;</span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin-bottom: 6pt; text-indent: -0.25in;">
<!--[if !supportLists]--><span lang="EN-CA" style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt;">
</span></span><!--[endif]--><span lang="EN-CA">Regular bargaining unit work
includes both full-time and part-time employees, so that if bargaining unit
worked assigned to excluded employees would be enough to employ a regular
part-time employee, that would be a breach of the collective agreement;</span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin-bottom: 6pt; text-indent: -0.25in;">
<!--[if !supportLists]--><span lang="EN-CA" style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt;">
</span></span><!--[endif]--><span lang="EN-CA">The test is whether sufficient
work was assigned that otherwise could have employed a regular bargaining unit
employee; and</span></div>
<div class="MsoListParagraphCxSpLast" style="margin-bottom: 6pt; text-indent: -0.25in;">
<!--[if !supportLists]--><span lang="EN-CA" style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt;">
</span></span><!--[endif]--><span lang="EN-CA">The work at issue must be
established to be bargaining unit work.</span></div>
<div class="MsoNormal" style="margin: 6pt 0in;">
After reviewing the evidence, the
arbitrator was satisfied that the vast majority of the excluded employee’s job
duties had little to do with the responsibilities of the Senior Reconciliation
Clerk and did not constitute <a href="http://www.blogger.com/blogger.g?blogID=7441731753935414270" name="_GoBack"></a>bargaining unit work. As
well, some of the work that the Union claimed went to other management
employees is the type of shared and overlapping work that cannot be considered
bargaining unit work.<o:p></o:p></div>
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-10232764288484709242013-05-15T14:54:00.003-07:002014-04-21T13:03:55.840-07:00BC Labour Arbitration Summaries<div dir="ltr" style="text-align: left;" trbidi="on">
Diane MacLean has kindly provided the following summaries of labour arbitration summaries released February 2013<br />
<br />
<br />
<div class="MsoNormal">
<b><span style="font-size: 14.0pt; line-height: 115%;">Arbitration Summaries –
February 2013 <o:p></o:p></span></b></div>
<div class="MsoNormal">
There were seven arbitrations
reported on CanLII as well as a further six reported on Quicklaw. Brief
summaries are provided for the CanLII decisions and even briefer summaries are
provided for the ones reported on Quicklaw.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii6407/2013canlii6407.pdf">The News Group, a Division of GreatPacific Enterprises Inc v. Teamsters Local Union No 213, 2013 CanLII 6407 (BCLA), </a>February
4, 2013 (Arbitrator Mark Brown):
grievance regarding displaced fleet employees (settled)<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
settlement made provisions for fleet employees who were permanently displaced
from the fleet and for those employees remaining in the fleet, in terms of
their classification, wages, seniority rights, employees returning from leave,
etc.</div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii7694/2013canlii7694.pdf">Cariboo Pulp and Paper Company v.Communications, Energy and Paperworkers’ Union of Canada, Local 1115 (BC LA)</a></span></b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">,
</span>February
5, 2013 (Arbitrator John Kinzie): grievance of denial of short term disability
benefits (dismissed)<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Background</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The claimant
was a head operator at a pulp and paper company. He applied for short-term
disability benefits, claiming he was suffering from extreme anxiety because of
a suspected bladder cancer. The carrier was not satisfied that his condition
prevented him from performing the essential duties of his job and therefore he
was not disabled.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Analysis and Decision</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
arbitrator first addressed the issue of the burden of proof. He agreed with a
previous arbitrator that the dispute resolution process here involved an
‘inquisitional’ proceeding rather than an ‘adversarial’ one. The arbitrator
would have the authority to gather further information if necessary to resolve
the disputed claim. There is no burden of proof on the claimant to prove he is
disabled or for the carrier to prove he is not.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The question
to be addressed in this appeal is whether the severe anxiety experienced by the
claimant prevented him from performing the essential duties of his position.
The arbitrator reviewed the duties of the head operator position and found that
the essential duties were: monitoring the operation of various systems and
pieces of equipment primarily through a computer in a control room, and guiding
the work of a group of employees in relation to the maintenance and operation
of that equipment. The work was not physically demanding and there were other
workers to assist him. The arbitrator concluded that the anxiety arising from a
suspected cancer diagnosis would not have prevented the claimant from
performing the essential duties of his job. He understood that the claimant
might not have felt like working, but that was not the test under the
short-term disability plan.</div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii7695/2013canlii7695.html">Dryco Drywall Supplies Ltd. V.
Teamsters Local Union No. 213, 2013 CanLII 7695 (BC LA)</a></span></b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii7695/2013canlii7695.html">,</a>
</span>February
19, 2013 (Arbitrator Mark J. Brown): termination grievance (allowed; suspension
substituted for termination)<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Background</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The grievor
was passing by another employee. He saw that the employee’s safety vest trim
was ripped and that threads were hanging down. Without thinking, he flicked his
lighter and the trim actually caught fire. He stopped the flames and when a
piece fell to the floor, he stepped on it. He then went outside. The other
employee, the branch manager and a customer then noticed that he was on fire.
While assisting the other employee, the customer burnt his hands. When the
grievor found out what happened, he apologized immediately. The grievor
admitted that, while he had no intention to light the vest, his actions were
stupid. The employer terminated his employment on October 30, 2012, stating
that the employer does not tolerate horseplay on the job. </div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Analysis and Decision</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
arbitrator applied the usual <i>Wm. Scott </i>principles
and decided that the employee had just and reasonable cause to impose some form
of discipline. He then considered whether termination was an excessive response
in the circumstances. He considered the following:</div>
<div class="MsoListParagraphCxSpFirst" style="margin-bottom: 6pt; text-indent: -0.25in;">
<!--[if !supportLists]--><span lang="EN-CA" style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt;">
</span></span><!--[endif]--><span lang="EN-CA">The incident was serious and
the other employee could have been seriously hurt and the customer could have
suffered a more serious injury;</span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin-bottom: 6pt; text-indent: -0.25in;">
<!--[if !supportLists]--><span lang="EN-CA" style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt;">
</span></span><!--[endif]--><span lang="EN-CA">The grievor’s actions were not
malicious and he did not knowingly risk injury to others, but his actions were
careless and stupid;</span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin-bottom: 6pt; text-indent: -0.25in;">
<!--[if !supportLists]--><span lang="EN-CA" style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt;">
</span></span><!--[endif]--><span lang="EN-CA">When the grievor went outside,
he believed the flames were out;</span></div>
<div class="MsoListParagraphCxSpLast" style="margin-bottom: 6pt; text-indent: -0.25in;">
<!--[if !supportLists]--><span lang="EN-CA" style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt;">
</span></span><!--[endif]--><span lang="EN-CA">He did apologize as soon as he
knew what happened – he took responsibility right away;</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
Given all of
the circumstances of the case, the arbitrator concluded that termination was
excessive. Given the serious of the incident and his carelessness, a lengthy
suspension is appropriate “to bring home the seriousness of the issue so that
he does not repeat any sort of similar behaviour”. The employee was to be after
a four-month suspension without pay.</div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii10710/2013canlii10710.html">Catalyst Paper Corporation v.Communications, energy and Paperworkers Union of Canada, Local 1123 (BC LA)</a></span></b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">,
</span>February
20, 2013 (Arbitrator Robert Pekeles): grievance regarding the entitlement of
certain employees to receive recalculated long term disability benefits
(“LDT”)(allowed)<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Background</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The parties
had new wording in their collective agreement:</div>
<div class="MsoNormal" style="margin: 0in 0.5in 6pt;">
<span lang="EN">Employees who are under age 60 years of age will have their future
disability benefit recalculated by applying the contractual wage increases that
were applied in each year, during the period of their disability, to their long
term disability benefit.</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
A dispute
arose whether the increases in the benefits were retroactive, that is, would
they apply to members of the union, from a particular mill, who were currently
on LTD benefits? </div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The union
said there was a discussion about retroactivity during collective bargaining
and that everything was to be retroactive to May 1, 2008, except for weekly
indemnity benefits, group term life insurances, and accidental death and
dismemberment insurance. The LTD was an insured plan and if the premiums went
up the union would pay their agreed share, which was 30%.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The employer
testified that it was very focused on controlling costs and that the mill was
closed. The employer said there was no discussion at collective bargaining
about retroactivity with respect to LTD. The employer said there were no
employees available to pay the premiums at the mill, but the employer agreed
there were employees at other mills (approximately 1,100). </div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Analysis and Decision</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The employer
had argued that there was an onus on the union to show that there was an
agreement in “clear and unequivocal terms” to provide a monetary benefit. The
arbitrator referred to the decision of Arbitrator Hall in <i>Catylst Paper</i> (May 3, 2012), where the arbitrator referred to the
reason of arbitrator Korbin in <i>the Board
of Education of School District No. 36 (Surrey)/BCPSEA v. BCTF/Surrey Teachers’
Association</i> (March 6, 2009), unreported:</div>
<div class="MsoNormal" style="margin: 0in 0.5in 6pt;">
<span lang="EN">With respect to the Employer’s reliance on the <i>Wire Rope</i> and <i>Noranda</i>
line of cases, arbitrators have not, in recent history, strictly adhered to the
notion that the Union bears any additional onus or burden in cases such as
this. It is my view that as this is a matter of interpretation, my role is to
find the mutual intention of the parties within the competing interpretations
put forward by the parties. In such an analysis, neither party bears any
special onus of proof. (page 13)<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN">The arbitrator noted that this was a very
recent decision involving the “very same” parties, and decided to adopt
Arbitrator’s Hall’s views as setting out the appropriate arbitral approach to
the issue in the present case.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN">The arbitrator considered the applicable
provisions of the collective agreement and the parties’ arguments about the
meanings of the provisions taken as a whole, in regard to the entitlement of
members on LTD to increased benefits in the future, based upon contractual wage
increases. This decision is an interesting example of the reasoning applied by
an arbitrator when interpreting clauses in a collective agreement.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN">The arbitrator concluded that change in
the collective agreement was meant to be effective from the date of
ratification. He did not agree with the employer that the improvements would
only apply to employees who started their LTD benefits during the term of the
current collective agreement. Therefore, the arbitrator held that the employer
had breached the collective agreement. The employer asked for an order
requiring the union to pay its share of the costs of the benefit before the
benefit was provided to existing LTD claimants. The arbitrator was not prepared
to do so at that time, leaving the issue to the parties to resolve but
reserving jurisdiction if they are unable to do so.</span><o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">West Shore Parks and Recreation
Society, 2013 CanLII 9138 (BC LA)</span></b><span style="font-size: 12.0pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">, </span>February
22, 2013 (Arbitrator John Kinzie): policy grievance regarding scheduling
regular employees to work weekends without agreement with union (dismissed)<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Background</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The employer
operates recreational facilities on Vancouver Island and employs workers in
tradition office and clerical positions but also employs outside workers
including park attendants, lifeguards, maintenance workers, etc. The employer
argues that it is entitled to schedule regular full-time employees working in
‘continuous operations’ to work weekends. The employer relies on this article
of the collective agreement:</div>
<div class="MsoNormal" style="margin: 0in 0.5in 6pt;">
Except for personnel engaged in continuous
operations, regular employees shall not ordinarily be required to work on a
Saturday or Sunday except in special circumstances.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The union
says that the employer must get the Union’s agreement before a part of its
operations can be deemed to be ‘continuous operation’.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Analysis and Decision</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
arbitrator reviewed the wording with respect to this issue in the bargaining
history and the various collective agreements between the parties. He noted
that employees
engaged in continuous operations were a separate and distinct group from inside
and outside staff who generally worked Monday to Friday. The arbitrator did not
agree with the union’s contention that only 24-hour, seven-days-a-week
operations were considered to be continuous. However, the employer, if
challenged, would have to establish that the operation either needed to be
operated on a continuous basis or that it needed to be operated at times
outside the normal work day. The arbitrator concluded that the employer can
require regular full-time employees to work weekends without the agreement of
the Union, if the operation in which those employees are working is a
continuous operation within the meaning of the collective agreement. The
Union’s agreement was not necessary for an operation to be deemed ‘continuous’.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii10700/2013canlii10700.html">Columbia Containers Ltd. V. TeamstersLocal Union No. 31 2013 CanLII 10700 (BC LA), </a>February
28, 2013 (Arbitrator R.K. McDonald): grievance regarding rates for employees
driving a new kind of truck (dismissed)<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Background</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
employee’s current collective agreement provides for hourly rates for company
drivers and dependent contractors. In regard to new trucks and trailers and classifications,
for which rates of pay were not established in the collective agreement, the
contract provided:</div>
<div class="MsoNormal" style="margin: 0in 0.5in 6pt;">
<span lang="EN" style="letter-spacing: .5pt; mso-ansi-language: EN; mso-bidi-font-family: Arial;">… the Company shall advise the
Union as far in advance as possible, and not less than thirty (30) days prior
to implementation, the matter shall become the subject of discussion between
the Parties for rates governing such trucks and trailers and classifications of
employment. The Companies and the Union shall finalize within thirty (30)
days after such implementation a rate to be established and such rate to be
retro-active to date of implementation.</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The employer advised the union of its
intention to introduce a new type of truck and the union was invited to discuss
rates of pay for the new driver. After some communications, the employer
advised the union that it was hiring a drive to operate the pickup truck at the
rate of $18.00. Note that this is $5.35/hr less than the current company driver
rate under the collective agreement.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The employer
noted that the pickup truck does not have airbrakes and only requires a Class 3
license without an air endorsement and substantially less “of a license and
skill set” was required to operate the trucks than the current $23.35
classification”. At the hearing, the employer also said that the new truck and
driver were used in the “movement of empty containers and other minor duties
which were not comparable to the capacity and work of the other trucks nor to
the licencing of the drivers employed and utilized” in the higher paying
classification.</div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i>Analysis and Decision</i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
The
arbitrator found that the employer acted properly under the collective
agreement – that the employer had established a new type of truck and new
classification of driver. Further, it was not for the arbitrator to determine
whether $18.00 an hour was a fair and proper wage for the position. If the
parties could not agree on a rate, the matter should be expressly put to
interest arbitration.</div>
<div class="MsoNormal" style="margin-top: 12.0pt;">
<b><span style="font-size: 14.0pt; line-height: 115%;">Quicklaw Decisions –
Brief Summaries<o:p></o:p></span></b></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b>Southwest Contracting Ltd. V. Teamster, Local
Union No. 213</b>, [2013} B.C.C.A.A.A., February 5, 2013 (Arbitrator Stan Lanyon,
Q.C.): The collective agreement provided that the employer would not
contract out bargaining unit work unless all of the dependent contractors
covered by the collective agreement were working. The employer was contracting
out work for a certain kind of truck that none of the dependent contractors
currently owned. The arbitrator held that the employer was obligated dispatch
dependent contractors if they purchased that kind of truck.</div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b>Catalyst Paper Corp. (Powell River Division)
v. Communication, Energy and Paperworkers Union of Canada, Local 76</b>, [2013]
B.C.C.A.A.A. No. 25, February 12, 2013 (David C. McPhillips): The employer
terminated an employee a few days before the expiry of his probationary period
because it was concerned about absenteeism. The arbitrator held that the
appropriate test is ‘suitability’. This includes making a fair assessment and
giving the employee a fair opportunity to prove his or her ability. The
employee should know the performance standards, and if his performance is
unsatisfactory, be given a reasonable opportunity to improve. The arbitrator
ordered reinstatement to another probationary period but no back pay because
the grievor was responsible for some of what happened.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b>Nigel Services for Adults with Disabilities
Society v. Construction and Specialized Workers’ Union, Local 1611, </b>[2013]
B.C.C.A.A.A. No. 24, February 12, 2013 (Arbitrator David C. McPhillips): The
employer transferred all of its assets to a designated employer under
the <i>Public Service Act</i>, whose
employees are statutorily included in bargaining units represented by other
unions. Virtually all of the employees continued to work for the new employer
and retained their seniority. The Union asserted that employees with more
than 10 years’ service were entitled, as severance pay, to payment of a portion
of their unused sick banks. This amount became payable if an employee “is terminated because the
employee's services are no longer required due to closure of the health care
facility, job redundancy, etc.”. The arbitrator dismissed the grievance stating
that the purpose of severance pay is to compensate for loss of
employment and seniority rights. As well, where a significant monetary claim is
being made, the entitlement is expected to be expressed in clear and
unequivocal terms. </div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b>British Columbia Teachers’ Federation v.
British Columbia Public School Employers’ Assn.</b>,[2013]
B.C.C.A.A.A. No. 17, February 15, 2013 (Arbitrator James E. Dorsey, Q.C.): Two
teachers went on maternity and parental leave. At that time, the employer
issued a form letter identifying maternity leave and parental leave period
ending 52 weeks after the expected birth date. The letter said that, six weeks
prior to return, the teacher had to confirm the exact date of return with the
employer. The teachers wanted to return early and gave the required six weeks’
written notice. They were not allowed to return to work on the proposed date
because it did not coincide with a “natural break” in the school year. The
union argued that this was a contravention of the <i>Employment Standards Act</i> but the arbitrator did not agree. The
union also alleged a breach of the collective agreement. The arbitrator noted
that the collective agreement did not address early termination of parental
leave. However, the employer established
and communicated to the grievors the terms on which it would accept an early
return from leave as an exercise of its residual management rights, that is,
providing written notice of the proposed return date. Then, without notice to
the grievors, the employer imposed additional requirements by applying an
unwritten practice unknown to the teachers or their union. The arbitrator
allowed the grievances, stating:</div>
<div class="MsoNormal" style="margin: 6pt 0.5in 0.0001pt;">
These leave terms created an
employer endowed entitlement that flowed from the parental leave provision of
the collective agreement because of the manner in which the employer chose to
administer the leave and communicate to each of them the terms for early return
from their parental leaves. The employer was in breach of the collective
agreement by later unilaterally revoking this term and the accompanying
entitlement for each of them.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b>Unite Here, Local 40 v. ECN Holdings Ltd.
(Vacation Inn) (No Evidence Motion Greivance)</b>,<b>
</b>[2013] B.C.C.A.A.A. No. 20, February 18, 2013 (Arbitrator James E. Dorsey,
Q.C.): New owners of a hotel decided not to renew the lease of a subcontractor
who managed a pub in the hotel and the employees were given layoff notice. The
union grieved the pub closure and layoff notice and later enlarged the scope of
the grievance by alleging unfair labour practices in regard to employees’
applications for decertification and to vary the bargaining unit. At the
end of the union’s evidence, the employer made a no evidence motion. The
arbitrator considered whether
adjudicating the motion would “facilitate a fair and timely resolution of the
dispute, further the purposes of the <i>Labour
Relations Code</i> and enable an arbitrator to meets his or her duties under <i>Code</i>”. The arbitrator dismissed
the motion, stating:</div>
<div class="MsoNormal" style="margin: 6pt 0.5in 0.0001pt;">
It is far from clear that the
interest in not having the employer defend an allegation for which there might
be no evidence adduced by the union will, on balance, in the circumstance of
this grievance arbitration,
facilitate either a more orderly, constructive or expeditious resolution of the
dispute. <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b>British Columbia Public School Employers’
Assn./School District No. 36 (Surrey) v. British Columbia Teachers’
Federation/Surrey Teachers’ Association, </b>[2013] B.C.C.A.A.A. No. 22, February
22, 2013 (Arbitrator Joan M. Gordon): The union had advanced two grievances to
arbitration, both dealing with hours of work. The union’s counsel proposed
having the same arbitrator for each grievance but the employer’s counsel
did not agree. At the arbitration, the employer made a preliminary objection,
arguing that the union’s attempt to expand the issues to the other <a href="" name="_GoBack"></a>grievance, without the employer’s consent, forced it to have
that grievance heard by an arbitrator it had not agreed to. The
arbitrator allowed the preliminary objection, finding that the case falls
within the principles and policy of <i>Code</i>
upholding the fundamental right of a party to influence the choice of both the
issues and the arbitrator. <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<br /></div>
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-34223112265038626512013-04-29T10:53:00.001-07:002014-04-21T13:03:55.861-07:00Busters' tow truck drivers--owner operators and their employees in the same bargaining unit<div dir="ltr" style="text-align: left;" trbidi="on">
If your car has ever been towed in Vancouver, because it was parked illegally for example, you will undoubtedly have come into contact with Busters Towing.<br />
<div>
<br /></div>
<div>
And if you're like me you will have wondered whether these folks are unionized. Well it now turns out that they may soon be.</div>
<div>
<br /></div>
<div>
In a decision handed down on April 23, 2013 <a href="http://www.lrb.bc.ca/decisions/B084$2013.pdf">Busters v. Teamsters Local 31</a>, Associate Chair Matacheski, rejected the first of a number of employer preliminary objections to the application for certification. This decision deals with the objection that the owner operators of the tow trucks who are dependent contractors of Busters can't be in the same bargaining unit as the drivers that the owner operators hire to drive the trucks.</div>
<div>
Although important for the outcome and the legal analysis, the decision also reveals some interesting aspects of Busters that will be of interest to its unwilling "clients". </div>
<div>
<br /></div>
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-52708313980382122432013-04-20T12:49:00.001-07:002014-04-21T13:03:55.871-07:00Workers' Compensation Tribunal decision on breast cancer overturned by BC Supreme Court<div dir="ltr" style="text-align: left;" trbidi="on">
In a <a href="http://canlii.ca/en/bc/bcsc/doc/2013/2013bcsc524/2013bcsc524.pdf">decision</a> issued last month, the BC Supreme Court overturned a ruling by the Workers Compensation Appeal Tribunal that had found the breast cancer developed by six health care workers in the Fraser Health Authority was an occupational disease and the workers were entitled to WCB benefits.<br />
The court applied the "patently unreasonable" test which still applies to most British Columbia administrative tribunals despite the Supreme Court of Canada's decision in <a href="http://canlii.ca/en/ca/scc/doc/2008/2008scc9/2008scc9.pdf">Dunsmuir</a> because of BC's <a href="http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_04045_01">Administrative Tribunals Act</a>. Under that test, although a tribunal has the right to be wrong there must be some evidence capable of supporting its conclusion. In the Fraser Health Case, the court found that the expert opinion that there was no occupational origin to the breast cancer was uncontradicted and the tribunal could not substitute its own "expertise or common sense." </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-57341143663632844472013-04-20T12:21:00.000-07:002014-04-21T13:03:55.875-07:00Summaries of recent BC Arbitrations --Guest Post by Diane Maclean<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div class="MsoNormal">
<b><span lang="EN-US">Arbitration
Summaries – January 2013<o:p></o:p></span></b></div>
<div class="MsoNormal">
<span lang="EN-US">There were three
arbitrations reported on <a href="http://canlii.ca/">CanLII</a> as well as a further thirteen reported on Quicklaw.
Brief summaries are provided for two interesting CanLII decisions and even briefer
summaries are provided for the ones reported on Quicklaw.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b><span lang="EN-US"><a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii950/2013canlii950.html">Martin-Brower of Canada Co. and Teamsters Local union No 31, 2013CanLII 950 ((BC LA)</a> (</span></b><span lang="EN-US">January 11, 2013, Arbitrator R.K. McDonald): Policy Grievance
regarding engineering standards (employee productivity) and individual
grievances (policy grievance dismissed and 16 of 17 individual grievances
dismissed)<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i><span lang="EN-US">Background</span></i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN-US">The policy grievance concerned the employer’s introduction of
engineering standards for the employees in the warehouse. The union also filed
individual grievances regarding discipline. </span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN-US">The employer argued that implementing the standards was a
managements right. The standards were reasonable and the employees were given
an opportunity to ‘ramp up’ to the standards. The union was invited to have its
own expert take part in the process but they declined. The individual grievors
were disciplined for their failure to meet the standards over a period of time.
They were offered training and coaching to meet the standards and disabled
employees were exempted.</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN-US">The union argued that the employer did not have the right to
unilaterally impose the engineering standards and that’s why they didn’t
participate in the process of creating the standards. Further, the standards
are unreasonable and unfair and some employees are concerned about their
well-being, safety, and future employment. </span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i><span lang="EN-US">Analysis and Decision</span></i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN-US">The arbitrator found that the implementation of the engineering
standards was within the employer’s management rights. In particular, the
arbitrator found that the employer had not altered or added conditions to the
collective agreement (as had been argued by the union), stating:</span></div>
<div class="MsoNormal" style="margin: 0cm 36pt 6pt;">
<span lang="EN-US">… The Employer
sought to have its employees give a fair day’s work for agreed rates of
remuneration. I do not find that the employer violated Article 1 of the
Collective Agreement. Specifically, I do not find any breach of duty to
co-operate by the employer that would bar or impede its management rights in
implementing engineering standards. I also find some merit in the Employer’s
submission that it was the Union that refused to co-operate by declining the
invitation to engage its own expert in the process of establishing the
standards.</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN-US">The arbitrator also found that the employer had not sought to
include productivity numbers in collective bargaining or that the Employer had
ever indicated that the Employer’s previous practice would not be altered or
changed.</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN-US">Were the standards unreasonable as argued by the union? In
considering this issue, the arbitrator commented:</span></div>
<div class="MsoNormal" style="margin: 0cm 36pt 0.0001pt;">
<span lang="EN" style="letter-spacing: .5pt; mso-ansi-language: EN; mso-bidi-font-family: Arial;">In
support of its contention the Union has introduced a body of evidence designed
to challenge the formation, establishment and administration of the standards
at the Employer’s warehouse. I find that what prompted the challenge was
the realization that under the standards employees were accountable coupled
with a genuine concern expressed by some of them as to their well-being and
future employment with the Company.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin: 0cm 36pt 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin: 0cm 36pt 0.0001pt;">
<span lang="EN" style="letter-spacing: .5pt; mso-ansi-language: EN; mso-bidi-font-family: Arial;">Having
had the benefit of many days of hearing in evidence with numerous documents, I
have been driven to the conclusion that the Un<a href="" name="_GoBack"></a>ion made a
tactical error in not accepting the invitation to engage their own expert in
the beginning or even while the standards were evolving. The invitation
was even extended as this matter was headed to arbitration… <o:p></o:p></span></div>
<div class="MsoNormal" style="margin: 6pt 0cm;">
<span lang="EN-US">The arbitrator found that
the level of productivity was set was based on an average level of performance
and not based on perfection. The arbitrator
concluded that the standards were not unreasonable. He also acknowledged the evidence of the
Employer that the standards were designed to be fair and safe and the goal was
for individual employees to achieve the average level of performance. Further,
the arbitrator stated:</span></div>
<div class="MsoNormal" style="margin: 0cm 40.5pt 6pt 36pt;">
<span lang="EN-US">I also observe
and conclude that much of the criticism raised by the employees and the Union
are expressions of opinion which are attempts to question the expertise of
those who are better qualified and trained to deal with such matters. I must
refer once more to the fact that the Union chose not to engage its own expert
to deal with the standards. </span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN-US">The arbitrator dismissed the policy grievance. He also dismissed 16
of 17 individual grievances. He concluded that the Employer was not required to
show that a failure to meet standards was deliberate (i.e., culpable) – the
Employer was entitled to discipline employees for substandard job performance.</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<b><span lang="EN-US"><a href="http://canlii.ca/en/bc/bcla/doc/2013/2013canlii3548/2013canlii3548.html">Construction Labour Relations Association of BC v. Construction,Maintenance and Allied Workers Bargaining Council, 2013 CanLII 3548 (BC LA)</a></span></b><span lang="EN-US">, (January 28, 2013, Arbitrator
Michael Fleming: interest grievance regarding the appropriate rate of pension
contributions in the Semi-Skilled Carpenter classification (SSC).</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i><span lang="EN-US">Background</span></i></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<span lang="EN-US">In an interest arbitration award dated last October, the arbitrator
set the hourly wage rates for SSC as a percentage of a Journeyperson’s straight
time hourly wage rate, ranging from 55% to 90%. There now disagreement about
the appropriate pension contribution. The union says that it should be the same
rate as the Journeyperson position. The employer argues that consistency with
other comparable trades is an important factor, stating “one of its bargaining
objectives was to ensure that similar trades have consistent terms for the new
semi-skilled positions now found in those agreements”. Further, it would not
make sense for the SCC rate to be the same as the Apprentice position but for
pension contributions to be different.</span></div>
<div class="MsoNormal" style="margin-bottom: 6pt;">
<i><span lang="EN-US">Analysis and Decision</span></i></div>
<div class="MsoNormal" style="margin-bottom: 12pt;">
<span lang="EN-US">The arbitrator had noted in his earlier award that the terms of
earlier awards (Operating Engineers and Cement Mason’s interest arbitrations)
were to “apply presumptively” to the CLR-CMAW interest arbitration. The Cement
Masons’ agreement contains a semi-skilled position and the wage and pension
contribution rates mirror those of the Apprentice and are the same percentage
of the Journeyperson rate. The arbitrator said that what the union was seeking
would not be consistent with the principle that monetary packages between the
two unions representing carpenters be comparable. Therefore, the pension
contributions should be consistent with and reflect the wages rates established
for that position, as is the case for the Apprentice position.</span></div>
<div class="MsoNormal" style="margin-top: 6.0pt;">
<span lang="EN-US" style="font-size: 14pt; line-height: 115%;"><b>Quicklaw
Decisions – Brief Summaries (</b>note: Quicklaw is not a free website but you can access it for free at a law library in the law courts or perhaps at a public library. The decisions may eventually be posted on CanLII and it may be useful to do a CanLII search from time to time)</span></div>
<div class="MsoNormal" style="margin-top: 6.0pt;">
<span lang="EN-US" style="font-size: 14pt; line-height: 115%;"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">British Columbia Public Service Agency v. British
Columbia Government and Service Employees’ Union (Campbell Grievance)</span></i></b><span lang="EN-US">, [2013] B.C.C.A.A.A. No. 3 (Arbitrator McConchie): The grievor had
been seriously injured in an accident. She was able to receive long-term
disability benefits from her employer. The disability plan provided that if an
employee was able to recover future wage loss in Court, then the long-term
disability benefits would be decreased so that her combination of benefits and
court wage loss recovery did not exceed 100% of what the employee would have
been paid if not injured. The grievor recovered $400,000 for future loss of
earnings. At issue was how to compute the amount by which her disability
benefits would be decreased. The employer argued that the $400,000 was the
“present value” of her future income and that all other amounts must be
converted to their present value before doing the calculations. This was a
departure from how other calculations had been done in the past, including an
arbitration award issued earlier by the same arbitrator. The arbitrator
provided an interesting discussion about when it is appropriate to depart from
earlier arbitration decisions about the same issue. The arbitrator eventually
decided that the parties’ intention was not to use the present value approach.
This decision discusses the approach used in the Courts to establish future
wage loss. It also explains why that parties to a collective agreement do not
have to use the same approach, although they certainly could choose to do so.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">Timberwest Forest Co. v. United Steelworkers, Local
1-1937 (Woodlands Letter Grievance)</span></i></b><span lang="EN-US">, [2013]
B.C.C.A.A.A No. 7 (Arbitrator Lanyon): Timberwest subcontracted its timber
harvest to a third party, who became the successor employer. This contract had
a five year term, but rates after the first year could be renegotiated.
Timberwest and the successor employer were not immediately successful
negotiating rates for 2012. During these negotiations, the successor employer
laid off all of its employees for approximately two months. The union seeks the
wages lost during this period. The arbitrator concluded that the union was
seeking “a binding grievance/arbitration dispute resolution system that would
prevent the stoppage of work during the resolution of rate disputes … “, which
did not exist. The arbitrator concluded that the terms of the timber harvest
agreement did not conflict with the terms of the collective agreement.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">EV Logistics, British Columbia General Partnership,
Ambient Centre and Perishable Centre v. Retail Wholesale Union Local 580
(Benefits Review Grievance)</span></i><span lang="EN-US">,</span></b><span lang="EN-US"> [2013] B.C.C.A.A.A. No. 4 (Arbitrator Brown): The collective
agreement had a benefits review provision where, in the event of a stalemate,
the matter could be referred to arbitration. The arbitrator retained the status
quo for benefits and provided directions to the parties to assist in
determining the benefits for the future.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">Husband Food Ventures Ltd. (D.B.A. IGA Store No. 11)
v. United Food and Commercial Workers International Union, Local 1518
(Termination Grievance)</span></i></b><span lang="EN-US">, [2013] B.C.C.A.A.A.
No. 5 (Arbitrator Sanderson): The grievor made non-specific threats that she
would come into the store and shoot people if she did not get a particular
promotion. This led to her dismissal. The arbitrator acknowledged that making
threats such as this is an extremely serious matter and termination is usually
the consequence. He then applied the traditional <i>Wm. Scott</i> analysis and found there was just and reasonable cause
for some form of discipline, but that the dismissal was an excessive response
in all of the circumstances of the case. The grievor was reinstated without pay
(more than a year’s wage loss) and ordered to take anger management counseling.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">Health Employers Assn. of British Columbia v. Hospital Employees’ Union (Rothenburger Grievance)</span></i></b><span lang="EN-US">,
[2013] B.C.C.A.A.A. No. 21 (Arbitrator Gordon): the grievor requested that her
seniority follow her from a facility within the Vancouver Island Health
Authority to a facility within the Fraser Health Authority, pursuant to a new
provision in the collective agreement. This provision allowed an employee who
voluntarily terminates employment with an employer who is party to the
agreement and who is employed within 180 days with the same employer or another
employer who is party to the collective agreement, then the employee is
entitled to portability of seniority. In this case, the employee was
concurrently employed at a facility in Nanaimo and two facilities within the
Fraser Health Authority. The employer argued that the provision did not apply
to the grievor because it was intended for some form of fresh start and not to
concurrent employment where the employee chooses to resign from one employer
and continue working at the other. The arbitrator considered whether the
parties had intended the language of the new provision to apply to the
grievor’s circumstances. The arbitrator found that the language of the
provision contemplated an employee moving or transitioning from a position at
one employer to a position at another employer within the specified time frame.
The grievor’s situation did not fit into this and the grievance was dismissed.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">Catylst Paper, Port Alberni Division v.
Communications, Energy and Paperworkers Union of Canada (Cairney Grievance)</span></i></b><span lang="EN-US">, [2013] B.C.C.A.A.A. No. 6 (Arbitrator Nodrlinger): The grievor, a
probationary employee, was dismissed within one month of hiring because of
supposed absenteeism and the smell of alcohol on his breath. The arbitrator
said that the standard of review in the case of a probationary employee is less
than that of an employee past the probationary period. Nevertheless, there are
five conditions to justify dismissal: legitimate standards of work performance
that have been conveyed to the employee; proper and ample direction have been
provided; the employee has been given an opportunity to meet the standards and
has been properly evaluated; and there have been no unreasonable or discriminating
acts. The arbitrator noted that the grievor believed his performance had been
good, based on evaluations and comments made to him. Although the employer
relied on three incidents when the grievor either left work early or was late,
on two occasions, he did so with the employer’s permission, and it is not
reasonable to take these into account when assessing the grievor’s suitability.
On the other occasion, the grievor was late because he forgot his swipe card at
home and he did not know his supervisor’s number or that he could get a
replacement card at work. His conduct on that date arose from a
misunderstanding that could have been corrected with a warning. In regard to
the alcohol issue, there were witnesses who testified they could smell alcohol
on his breath and other who testified they did not. The arbitrator commented
that the employer did not raise this issue with the grievor prior to his
expulsion from the workplace and did not give him an opportunity to show that
alcohol was not a problem. Over all, the real problem was the employer’s
failure to warn – the grievor was not given an opportunity to understand and
respond to the employer’s concerns before his termination. The arbitrator
ordered reinstatement.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">Howe Sound Pulp and Paper Corp. v. Communications,
Energy and Paperworkers Unino of Canada, Local 1119 (Widsten Grievance)</span></i></b><span lang="EN-US">, [2013] B.C.C.A.A.A. No. 11: The grievor, a millwright, got into a
confrontation with a contractor’s service representative (“representative”). It
appears that the millwrights felt that the representative was performing their
work. The employer terminated the grievor’s employment saying it was a
violation of a last-chance agreement. At the arbitration, the representative
and the grievor provided very different versions of events. The arbitrator
described the representative as pompous and that he felt it was always someone
else’s fault when a disagreement occurred. Therefore, the arbitrator found the
grievor to be more credible. The arbitrator noted that the last chance agreement
could only be viewed as a very serious letter of warning, given that the union
had not signed the agreement. The
arbitrator applied the <i>Wm. Scott</i>
analysis and found that there was just and reasonable cause for some sort of
discipline. Although his behavior was not as serious as that alleged by the
representative, it was inappropriate to enter into a verbal altercation and
threaten that the Union “would break him”, accompanied by punching his fist
into his palm. In deciding whether
dismissal was an excessive response, the arbitrator said there were some
mitigating factors. First, there was provocation. As well, the employer’s
investigation was flawed, in that the employer never tested the validity of the
representative’s statement. Finally, the grievor had worked under a last chance
agreement with good behavior for almost two years. Therefore, dismissal was
excessive in the circumstances. The arbitrator was of the view that the
employment relationship could be restored. Although counsel suggested that she reserve
on the question of what measures should be substituted for the dismissal, the
arbitrator held that, in order to avoid any further delays, the grievor was to
be reinstated as soon as possible and that further submissions regarding the
appropriate penalty would be arranged. [Note: The employer applied to the LRB
for a review of this award: <b><i>Howe Sound Pulp & Paper Corporation v.
Communications, Energy and Paperworkers Union of Canada, Local Union No. 119</i>,
</b>[2013] BCLRB No. B32/2013. Although the grievor was dismissed on October 5,
2012, the employer had advised the union that it would be relying on the
grievor’s conduct on October 10, 2012, “but only for the purpose of answering
the third branch of the <i>Wm. Scott</i>
test: If the response was excessive, what other measure should be substituted
as just and equitable?” The union did not agree that the conduct of October 10
was relevant and proposed to the employer that this evidence not be introduced
until the arbitrator made a finding on the first step of <i>Wm. Scott</i>. The union suggested that, at that point, they could make
submissions regarding the admissibility of the October 10 evidence. Therefore,
the parties agreed to ask the arbitrator to reserve jurisdiction to consider
the third question in <i>Wm. Scott</i>. The employer
argued it was denied a fair hearing because the arbitrator ignored the parties’
agreement and, without advising the parties, reinstated the grievor without
hearing the parties’ submissions on the issue. The LRB found there was a denial
of a fair hearing because “ the Arbitrator ruled in favour of reinstatement
(albeit on an interim basis) and found the employment relationship capable of
being restored before the parties had an opportunity to make submissions and
call evidence on the third <i>Wm. Scott</i>
question” with resulting prejudice to the employer. The Board set the order for
reinstatement aside and directed her to complete the hearing with respect to
the final <i>Wm. Scott</i> question.]</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">British Columbia Hydro and Power Authority v. Canadian
Office and Professional Employees Union, Local 378 (Position Grievance)</span></i></b><span lang="EN-US">, [2013] B.C.C.A.A.A. No. 8 (Arbitrator Kinzie): the issue was
whether a new position of ‘Capital Safety Planner’ should be excluded from the
bargaining unit. The issue was whether capital safety planners are employed in
a confidential planning or advisory position in the development of management
policy for the employer. The arbitrator was not satisfied that the planners
were employed in that capacity, finding that they would be implementing policy
instead. As well, the arbitrator was not persuaded that project safety was a
confidential matter or that conflicts of interest would often arise. Therefore,
the planners were to be included in the bargaining unit.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">B.A. Blacktop Ltd. v. Teamsters, Local Union No. 213
(Proper Pay Rate Grievance)</span></i></b><span lang="EN-US">, [2013]
B.C.C.A.A.A. No. 12 (Arbitrator Lanyon): The union argued that certain work
(haulage of millings/grindings) was paving work and had to be paid using the
rates in The Asphalt Agreement (“TAG”). The employer said it was not paving
work and is paid under a different collective agreement, The Utility Agreement
(“TUG”). The arbitrator considered the past practice and stated: “I conclude
that over the period of fourteen years, and several rounds of collective bargaining,
the Union knew, or ought to have known, that the principal rate among the
employers signatory to the TAG Agreement for the hauling of millings/grindings
material was to pay the TUG rate. The Union negotiated and administered these
collective agreements over all those fourteen years in which its members were
consistently being paid the TUG rate. Further, each of these bargaining units
was represented by a shop steward from those employees who were being paid the
TUG rate over those fourteen years.” The arbitrator dismissed the grievance,
concluding that under the TAG Agreement, the employer is obligated to pay the
TUG rates for the hauling of millage/grindings.</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">BC Ferry Service Inc. v. British Columbia Ferry and
Marine Workers’ Union (Travel Time Grievance)</span></i></b><span lang="EN-US">,
[2013] B.C.C.A.A.A. No. 14 (Arbitrator Korbin): in the collective agreement, if
the employer directs an employee to take a course, then the employer bears the
full cost of the course including necessary travelling time and travelling
expenses. A dispute arose over two issues. First, was the employer ‘directing’
employees to take a particular course? The second issue was whether the
employer was correct in not providing travel time when the course was offered
in the same general geographical area, but farther away than the employee’s
regular work location. In regard to the first issue, the arbitrator concluded
that the courses were being taken at the ‘direction’ of the employer. In regard
to the second issue, the arbitrator found that the employer had not established
that there was a past practice of not paying travel time when the course was
conducted in the same regional area or community. The arbitrator also stated:
“… in the instant case the employer made an operational decision which was in
place for over 17 years, but which was unclear and which the union hierarchy
was only fully aware of many years later and at that time, it did object and
carried forward these grievances. In these circumstances, the Employer’s
practice, on its own, is not sufficient to establish an unequivocal
representation from the Union leading it to believe that the Union had
acquiesced in this policy. In my view, it would be inequitable and unfair to
find that an estoppel arises preventing the Union from relying on its collective
agreement rights."</span></div>
<div class="MsoNormal">
<span lang="EN-US"><br /></span></div>
<div class="MsoNormal">
<b><i><span lang="EN-US">Gateway Casinos & Entertainment Ltd. (Grand Villa
Burnaby) v. British Columbia Government and Service Employees’ Union
(Application of Seniority Grievance)</span></i></b><span lang="EN-US">, [2013]
B.C.C.A.A.A. No. 15 (Arbitrator Germaine): This was an interest arbitration
concerning classification seniority, which determined the order in which
employees select their shifts and hours of work. However, strict application of
the language of the collective agreement created issues, so the parties amended
the seniority language to clarify their intention and to simplify some of the
language. This did not resolve all of the issues and the parties identified
alternative outcomes that they were prepared to accept. Neither party advocated
a particular outcome, but presented consideration relevant to the alternative
potential determinations. The arbitrator considered the choices and chose the
one that “provides greater potential for a final resolution of the continuing
classification seniority issues”</span></div>
</div>
Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-7441731753935414270.post-44240698866314739432013-02-07T11:01:00.001-08:002014-04-21T13:03:55.865-07:00Arbitration summaries with human rights overtones-- discrimination on the basis of sex or family status<div dir="ltr" style="text-align: left;" trbidi="on">
The focus of this post submitted by Diane Maclean is on discrimination on the basis of sex and family status. An employee can grieve, alleging a contravention of the collective agreement (if clauses have been negotiated). Or, an employee can grieve an alleged contravention of the <em><a href="http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96210_01">Human Rights Code</a></em>, as arbitrators have full authority to apply the Code. The applicable section of the Code is Section 13 (1), which provides:<br />
<br />
<em>A person must not</em><br />
<em><br /></em><em>(a) refuse to employ or refuse to continue to employ a person, or</em><br />
<em><br /></em><em>(b) discriminate against a person regarding employment or any term or condition of employment</em><br />
<em><br /></em><em>because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person … </em><br />
<em><br /></em>Note: the <em><a href="http://laws-lois.justice.gc.ca/eng/acts/h-6/">Canada Human Rights Act</a></em> and other provincial human rights legislation have similar provisions.)<br />
<br />
In the workplace, allegations of sex discrimination can arise in many circumstances, but the most common are the failure to return an employee to her position after maternity and/or parental leave and sexual harassment. In this post, I have summarized three decisions that were reported on <a href="http://canlii.ca/">CanLII</a>. One of these decisions is in regard to entitlements to special leave to attend to a sick family member. While not commonly a human rights issue, it seems to dovetail with the cases involving pregnancy and parental leave.<br />
<br />
I have also referred to some related decisions reported on Quicklaw that are interesting reads. You can locate Quicklaw decisions at any courthouse library in the province. <br />
<br />
<a href="http://canlii.ca/eliisa/highlight.do?text=UNITE+HERE%2C+Local+40+v+Compass+Group+Canada+Ltd.&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/bc/bcla/doc/2012/2012canlii51822/2012canlii51822.html">UNITE HERE, Local 40 v Compass Group Canada Ltd.</a><br />
<br />
Date: May 24, 2012 Arbitrator: James E. Dorsey, Q.C.<br />
<br />
Grievance: Failure to return to position on return from maternity leave (grievance allowed)<br />
<br />
Summary<br />
<br />
Background<br />
<br />
The grievor started working for the employer in January 2008. She took maternity leave in April 2010. At that time she was working as a cook for 35 hours per week. The collective agreement stated that she was entitled to “return to the same job”, which continued to exist. She returned to work in April 2011 and was not returned to the same job; instead, she was demoted to “casual on call”. The union grieved this alleged breach of the collective agreement and later added allegations of breaches of the Employment Standards Act and the Human Rights Code. <br />
<br />
Analysis and Decision<br />
<br />
The arbitrator allowed the grievance and concentrated on determining a remedy. First, he ordered reinstatement to her pre-leave position and work schedule. He also order lost wages in the amount of plus pre-judgement interest, the option to make contributions to the pension plan with matching contributions from the employer, credit to accrued vacation, and seniority credits (for the duration of her maternity leave and for the period for which she lost wages). The arbitrator declined to award several remedies under the Human Rights Code that had been requested by the union. <br />
<br />
Below are some recent decisions related to maternity and parental leave:<br />
<br />
• <b><u>Okanagan College v. Okanagan College Faculty Assn.</u></b>, [2012] B.C.C.A.A.A. No. 137 (Quicklaw): the grievors were term (i.e., not regular or continuing) college instructors. The grievors were denied credit for Teaching Load Units when they were on maternity and/or parental leave. The accrual of these credits determines when an instructor will be eligible for conversion to a continuing appointment. The union argued that the grievors were “unfairly discriminated against” in that other term instructors may accrue rights to work and may be positively recommended for conversion to continuing positions. The union alleged that this could result in a “resultant loss of secure continuing work”. Arbitrator Hall dismissed the grievance, deciding there was no breach of the collective agreement or the Human Rights Code. This case is interesting because it provides an extensive review of decisions regarding this issue.<br />
<br />
•<u> <b>British Columbia Public School Employers’ Assn. v. British Columbia Teachers’ Federation</b></u> (Supplemental Employment Benefits Grievance), [2012] B.C.C.A.A.A. No. 138 (Quicklaw): In this case, the employer argued there was no discrimination because birth mothers, birth fathers, and adoptive parents were equally eligible for 15 weeks of top-up of their employment insurance benefits. The birth mother could choose to take the top up during her maternity leave or during parental leave. The arbitrator disagreed and allowed the grievance. There was a good review of other decisions in this area, focusing on the purpose of pregnancy leave versus parental leave. <br />
<br />
<a href="http://canlii.ca/eliisa/highlight.do?text=Osprey+Care+Inc+%28Hamlets+at+Penticton%29+v+Hospital+Employees%E2%80%99+Union&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/bc/bcla/doc/2012/2012canlii39549/2012canlii39549.html">Osprey Care Inc (Hamlets at Penticton) v Hospital Employees’ Union</a><br />
<br />
Date: June 28, 2012 Arbitrator: John P. Sanderson, Q.C.<br />
Grievance: Termination for inappropriate sexual behaviour (grievance dismissed)<br />
<br />
Summary<br />
<br />
Background<br />
<br />
The employer operates a long-term care facility where the grievor had been employed as a Registered Nurse since February 2009. In October, 2011, the grievor’s employment was terminated as explained by the events set out in the letter of termination:<br />
<br />
• First, the grievor was suspended after a co-worker (also referred to as complainant) alleged inappropriate sexual conduct away from the work place;<br />
<br />
• The employer conducted an investigation and the grievor denied the allegations;<br />
<br />
• The employer also referred the matter to the College of Registered Nurses of British Columbia;<br />
<br />
• The grievor refused to provide a copy of a previous consent agreement with that body;<br />
<br />
• Notwithstanding the consent agreement, the grievor still denied wrong doing; and<br />
<br />
• The employer concluded that the grievor did engage in inappropriate sexual conduct with the Complainant – given the grievor’s denials, the employer did not feel that the grievor was remorseful for what happened or accepted responsibility for what happened, such that the conduct would not be repeated in the future.<br />
<br />
The evidence showed that the grievor came to the co-worker’s parents’ house while her parents were away. Each employee had a different version of events – the co-worker said that the grievor was uninvited and that he sexually assaulted her. The grievor said he was invited and that the sexual activity was consensual. The co-worker reported on what had happened to her boyfriend and parents and then contacted the police. The grievor was put on an unpaid leave. Although charges were laid, the Crown decided not to proceed with the charges. The employer decided to conduct its own investigation – the co-worker co-operated and the grievor did not. <br />
<br />
During the course of the investigation, the employer discovered that the grievor had signed a consent agreement with the College of Registered Nurses of British Columbia in 2009. The grievor refused to provide the employer information about the consent agreement. At the hearing, he admitted that the consent agreement contained restrictions on his licence to practice arising from a sexual encounter at another workplace where he was disciplined and the incident reported to the CRNBC.<br />
<br />
Analysis and Decision<br />
<br />
The arbitrator had to decide who was telling the truth and whether the incident or the behaviour of both individuals was work-related. The arbitrator found the co-worker more credible than the grievor and accepted her evidence. In regard to whether the conduct was related to the workplace, the arbitrator noted that the sexual harassment began in the workplace (patting on the backside). Although the grievor denied this, he agreed that he flirted with her at work and made suggestive remarks. The arbitrator did not agree with the union’s position that this was a private encounter that had nothing to do with the workplace, stating that “on the grievor’s own evidence and admission, he was attempting to establish a relationship with the complainant; the only time they had contact was at work.”<br />
<br />
The arbitrator decided the disciplinary penalty was not excessive in the circumstances, for the following reasons:<br />
<br />
• the grievor had been untruthful in giving his evidence;<br />
<br />
• he exhibited no remorse or expressed any sympathy for the complainant or to the employer;<br />
<br />
• remained uncooperative and unapologetic throughout the employer’s investigation;<br />
<br />
• refused to co-operate with the employer in supplying information as to the reasons for the restrictions on his licence imposed by the CRNBC; and<br />
<br />
• at the hearing, he insisted that the complainant was so attracted to him that she was the instigator of the event.<br />
<br />
[Note: if these events had not been dealt with promptly and appropriately, instead of a grievance regarding a termination, there could have been a sexual harassment grievance from the co-worker.]<br />
<b><br /></b>
<b><u>British Columbia Maritime Employers Assn. and Western Stevedoring Ltd. V. International Longshore and Warehouse Union, Local 500</u></b> [2012] C.L.A.D. No. 86 [note: available on Quicklaw--note quicklaw is not a free database but is available at any courthouse library in the province]<br />
<br />
Date: March 9, 2012 Arbitrator: Robert Pekeles<br />
<br />
Grievance: Dismissal for insubordination/refusal to follow directions (grievance allowed)<br />
<br />
Summary<br />
<br />
[Note: The arbitration day took 38 days and resulted in a 54-page decision. The hearing dates began in May 2008 and concluded in January 2010. The arbitrator had earlier issued four separate interim decisions. By agreement, the decision on the dismissal did not include a decision on a remedy, which would be dealt with in a subsequent hearing. The analysis of discrimination was under the Canada Human Rights Code, but would be equally applicable to the B.C. Code.]<br />
<br />
Background<br />
<br />
From 2004 until the date she was fired in April 2007, the grievor worked exclusively for Western Stevedoring Ltd. The grievor worked in an area where there was a head foreman and usually 6 or 7 employees. The grievor testified that she was intimidated by the head foreman, finding him gruff and difficult to talk to. He talked openly with other employees but not with her. The grievor testified about the language used when other foreman visited the head foreman in his office. There was reference to the words b-----s and c---s. She also heard the following: Holy shit, you are still here.” “Wow, the broad is still here.” “Why are you still here?” “Why do you want to work here?” “There are no women at the locker, haven’t you learned that yet?” “Go make me some bacon and eggs.” Do you want to do my laundry? When washing coffee pots, that “You know your place.” The head foreman testified that he never heard these kinds of remarks, but the arbitrator preferred the evidence of the grievor.<br />
<br />
The head foreman also told the grievor that she was referred to as a “gimmick c---“ on the back of her business agent husband. Apparently, a “gimmick” refers to a person who receives special favours. The grievor acknowledged that there are a lot of family members on the waterfront. The male workers get ribbed about it, but do not get called “c---s”. The head foreman never said if he agreed with the reference to the grievor as a “gimmick c---“. <br />
<br />
On April 10, 2007, the head foreman asked a co-worker to do a task that the co-worker thought was the grievor’s job. The head foreman was angry. The grievor told the head foreman that it was her job. The head foreman said to do another task and the grievor said she would do it after she finished her job. The head foreman asked the grievor several times if she was refusing to follow his direction. The grievor said she was just trying to do her job and didn’t think she was refusing his direction. Eventually the head foreman fired her.<br />
<br />
Analysis and Decision<br />
<br />
The arbitrator noted that: <br />
<br />
… among certain Western foremen at least, there were sexist attitudes towards [the grievor]. The comments made by certain Western foremen about her were sexist, plain and simple. Such comments have no place whatsoever in any workplace today. <br />
<br />
The arbitrator then focused on whether sex discrimination was a factor in the dismissal and made the following findings:<br />
<br />
• The head foreman told the grievor that she was called "gimmick c---" on the back of her Business Agent husband. The arbitrator was of the opinion that “to "share" such a negative sexist view with a member of his workforce, without disagreeing with it, sends a very negative sexist message to that employee who reports to him”;<br />
<br />
• The head foreman would not look at grievor and had very little to say to her, while he talked openly with other employees. He would tell stories and jokes. He also talked about having to adjust to women in the work force and the grievor was the only woman who regularly worked in the locker throughout her period of employment there;<br />
<br />
• The head foreman gave the grievor very specific directions to her work while the former employee in the position was not so directed. The arbitrator saw this as another indicator of a discriminatory attitude on the head foreman’s part; and<br />
<br />
• The arbitrator concluded that the head foreman treated the grievor differently in regard to a possible refusal to work. For example, when the other employee had possibly refused to do work as directed, the head foreman did not ask him twice if he was refusing work – he only did that with the grievor. <br />
<br />
The arbitrator concluded that the grievor’s gender was "a factor" in the employer’s decision to dismiss the grievor. However, the arbitrator did find there was also just cause for discipline based on the grievor’s refusal to accept the head foreman’s work direction. The arbitrator concluded that dismissal was excessive and concluded that a written warning would be a “just and reasonable” substitute, given the breach of the Canada Human Rights Code, the head foreman’s prodding the grievor regard the refusal to work but not the other employee involved, the grievor’s previously clean discipline record, and that there was no problem with her work. The arbitrator left the remedy to a future hearing.<br />
<br />
Another interesting decision that can be found on Quicklaw is: <b><u>Warner Bros. Television (B.C.) Inc. (Supernatural 5 films Inc.) v. British Columbia and Yukon Council of Film Unions</u></b>, [2012] B.C.C.A.A.A. No. 145 (Quicklaw): although not specifically sexual harassment, this is a case on workplace harassment generally. In this case a very senior costume designer was dismissed for grabbing the arm of an employee, making derogatory comments about employees’ ancestry, making inappropriate comments to employees she supervised about the physical appearance of a producer, and making demeaning remarks about persons she supervised. <br />
<br />
After hearing the testimony, the arbitrator was satisfied that, in addition grabbing an employee’s arm hard enough to leave bruises, that the grievor made a number of derogatory, inappropriate and demeaning remarks. The arbitrator then applied the Wm. Scott principles and found there was just and reasonable cause for some form of discipline. However, he found that the discipline imposed was excessive. He was not satisfied that it would be appropriate to reinstate the grievor to her former supervisory position and he did not order back pay. The conduct was a serious breach of the employer’s policy and the arbitrator commented that the grievor “appears to lack the insight or possibly the training and guidance to improve her conduct”. Before making a ruling on the issue, the arbitrator thought it would be useful to “allow the parties an opportunity to discuss possible terms and conditions under which the Grievor could be entitled to work on future WBTV productions”.<br />
<br />
<br />
<br />
III. Fraser Health Authority (Surrey Memorial Hospital) v. Health Sciences Association of British Columbia, 2012 CanLII 24878 (BC LA)<br />
<br />
Date: April 12, 201 Arbitrator: Mark J. Brown<br />
<br />
Grievance: Entitlement to special leave (allowed in part)<br />
<br />
Summary<br />
<br />
Background<br />
<br />
The special leave provision in the parties’ collective agreement provides that such leave would be granted “to provide care to an immediate family member who has a serious illness”.<br />
<br />
<br />
<br />
The grievor’s husband went into the hospital on April 29, 2001. The grievor worked a 7:30 to 4:00 p.m. shift and, from April 29 to May 4, visited her husband after work. The grievor was at the hospital on the evening of May 4 when the first surgery was done. She was advised that the surgery had not gone well and that her husband had gone into cardiac arrest. The grievor advised the employer that she would not be at work the next day. When she went to the hospital on May 5, her husband was anxious and she provided emotional service and other assistance to her husband. The surgery occurred around 10:30 a.m. and the grievor waited at the hospital, in case there were further complications. She then stayed with her husband when he was returned to his room until he went to sleep. The grievor reported to work the next day, and asked her supervisor whether her day at the hospital could be considered “special leave”. Her supervisor said it was not. She filed a grievance about this.<br />
<br />
The grievor also stayed at home with her husband on May 20th, because he was experiencing symptoms similar to those prior to the surgery. She reported to her supervisor that she was at home caring for her husband and requested special leave. Her husband asked if anyone else was available and the grievor said she was the only adult at home. Her supervisor granted this leave. She also received special leave in July when she had to take her husband to emergency. Her husband was also hospitalized in August for two days. The grievor did not request special leave as she assumed it would be denied.<br />
<br />
The supervisor testified that he denied special leave for May 5 because the grievor was not providing medical or physical care as that care was being provided by the hospital staff.<br />
<br />
Analysis and Decision<br />
<br />
The arbitrator said that the onus is on the employee to demonstrate that their situation falls within the special leave provision. However, the employer is required to seek additional information from the employee (if it feels information from the employee is lacking) in order to make a correct decision.<br />
<br />
The issue here was whether the grievor “provided care” to her husband. The arbitrator agreed with the union that care is not restricted to medical, therapeutic and physical needs. He noted that the grievor did not apply for special leave on May 4 when the surgery appeared to be routine and where her attendance at the hospital would not have been related to the care. However, after the serious complications that day, the grievor saw her husband and was not sure he understood what had happened. He husband also said he was scared. The arbitrator commented:<br />
<br />
When [the grievor] attended the hospital on May 5th she provided emotional care, was involved in providing feedback to the medical team during preoperative assessment, provided [her husband] with a bed pan and was there in case medical decisions were required.<br />
<br />
The arbitrator concluded that in this case the grievor was providing care on May 5 and was entitled to special leave. He also noted that “this case does not stand for the proposition that in any situation where an immediate family member is hospitalized, an employee is entitled to special leave.” In particular, an employee’s personal need “to be there” does not entitle that employee to special leave.<br />
<br />
<br />
<br />
[A decision on Quicklaw dealing with family leave is: WorkSafeBC v. Compensation Employees’ Union, [2012] B.C.C.A.A.A. No. 76. In this expedited arbitration, the collective agreement agreement provided for two working days of leave in case of the serious illness of a close relative. The grievor took time off to be with her hospitalized mother-in-law on two separate occasions during the same period of hospitalization. The issue was whether the two absences dealt with one or two separate illnesses. The arbitrators found that there were two separate illnesses and granted the grievor one more day of paid leave.]<br />
<br /></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-50269020961589083132013-02-07T10:06:00.002-08:002014-04-21T13:03:55.867-07:00Discipline and Discharge -- criminal convictions<div dir="ltr" style="text-align: left;" trbidi="on">
the following post was submitted by Diane MacLean, formerly a member of the Human Rights Tribunal and an Industrial Relations Officer with the Ministry of Labour<br />
<br />
<a href="http://canlii.ca/en/bc/bcla/doc/2012/2012canlii51819/2012canlii51819.pdf">Community Social Services Employers’ Assn. v. British Columbia Government and Service Employees’ Union,</a> <br />
<br />
Date: May 22, 2012 Arbitrator: Vincent L. Ready<br />
<br />
Grievance: Dismissal for sexually inappropriate conduct (summary dismissal)<br />
<br />
Summary<br />
<br />
The employer dismissed the grievor after investigating a report that he behaved in a sexually inappropriate way with a group home resident. In February 2012, the grievor was convicted of sexual assault relating to the same incident. As a result of the conviction, the union advised the grievor that they would not be proceeding to arbitration. However, the grievor had a right to appeal that decision, so the union applied for an adjournment of the arbitration hearing. The employer objected to the union’s application and applied to have the grievance dismissed without a hearing.<br />
<br />
Analysis and Decision<br />
<br />
The arbitrator commented on (Toronto (City) and C.U.P.E. Local 79, [2003] S.C.J. No. 64), a Supreme Court of Canada decision that stated it was inappropriate to re-litigate decisions of the Court. The arbitrator then applied the Wm. Scott analysis and concluded:<br />
<br />
• The grievor’s criminal conviction, which was based on precisely the same incident, provides just and reasonable cause for discipline;<br />
<br />
• The dismissal was not excessive in the circumstances.<br />
<br />
In deciding that dismissal wasn’t excessive, the arbitrator stated:<br />
<br />
<em>The Supreme Court of Canada [in Toronto (City)] pointed out the abuse of process that would result in a situation where a convicted sex offender would be reinstated to his employment and work with the very vulnerable people he was convicted of assaulting. The parallels to the circumstances before me are striking. The current grievor … has been found guilty beyond a reasonable doubt of sexually assaulting a young woman in his care. Even without the direction of the Court, it would be unethical to expose other clients to that harm.</em><br />
<br />
<a href="http://canlii.ca/en/bc/bcla/doc/2012/2012canlii58063/2012canlii58063.pdf">Board of School Trustees of School District No 48 v Canadian Union of Public Employees, Local 779</a><br />
Date: October 1, 2012 Arbitrator: John Kinzie<br />
<br />
Grievance: Termination (grievance dismissed)<br />
<br />
Summary<br />
<br />
The grievor, a 55 year old employee with a clean disciplinary record, had worked for the School District since 1994. His latest position was as a bus driver-custodian. He was charged with offences that predated his employment with this employer. The grievor pled guilty to two charges that he had touched two boys for a sexual purpose. He was sentenced to a community-based sentence of two years less one day, followed by two years of incarceration. During this four-year period, the grievor was not to be in any place where children under the age of 16 might reasonably be present and not to seek or maintain employment that would put the grievor in contact with children under the age of 16. <br />
<br />
The employer terminated the grievor’s employment shortly after the sentencing, because the grievor was not capable of continuing his employment in light of its responsibility to provide a safe environment for its students. The union contended that the termination was excessive and that the grievor should be reinstated to a position where he is not exposed to children under the age of 16, for example, as a custodian in a secondary school on the graveyard shift. <br />
<br />
Analysis and Decision<br />
<br />
The arbitrator applied the <strong><em>Wm. Scott</em></strong> analysis. The first issue was whether there was just and reasonable cause for some form of discipline. The arbitrator referred to arbitral jurisprudence that recognized that an employer can discipline an employee for improper conduct off the job, subject to some of the following conditions:<br />
<br />
<em>(1) the conduct of the grievor harms the Company’s reputation or product;</em><br />
<em><br /></em><em>(2) the grievor’s behaviour renders the employee unable to perform his duties satisfactorily;</em><br />
<em><br /></em><em>(3) the grievor’s behaviour leads to a refusal, reluctance or inability of the other employees to work with him;</em><br />
<em><br /></em><em>(4) the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees;</em><br />
<em><br /></em><em>(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.” [See Millhaven Fibres Ltd., [1967] O.L.A.A. No. 4 (Anderson)]</em><br />
<br />
The arbitrator agreed with other arbitrators that there has to be a connection between the criminal offence and the performance of the employee’s duties. He concluded that the connection existed here, stating:<br />
<br />
<em>I am satisfied that there is a clear and direct nexus or connection between the grievor’s offences and his responsibilities as a bus driver and custodian. As the cases make clear, the grievor in those jobs was in a position of trust and responsibility vis-à-vis the students on his bus and any students in the school he was cleaning. Because of those responsibilities, a high standard of care could be expected of him in those circumstances, and, in my view, the Employer and the parents of children in the school district would be entitled to be confident in their expectations that he would lie up to that high standard of care.</em><br />
<br />
The arbitrator also commented that the responsibility of providing an education included the obligation to provide a safe environment and the grievor’s conviction called into question the safety of the environment for the students. The arbitrator also felt that the nature of the criminal conduct coupled with the nature of the grievor’s duties would impact negatively on the employer’s reputation within the school community. Therefore, the grievor had given the employer just and reasonable cause to impose some form of discipline on him.<br />
<br />
The arbitrator then considered whether the termination of the grievor’s employment excessive in the circumstances. He agreed there were a number of mitigating circumstances: the offences had been committed some 20 years ago, the grievor’s clean disciplinary record throughout the 15 years of his employment, and his remorse. However, the grievor remained silent about very serious offences for almost 20 years until he was confronted by his. In addition, the employer and parents would have lost confidence in the trust they placed in the grievor “with the result that the employer-employee relationship would have seriously impaired if not destroyed”. The arbitrator recognized the Court’s concern that there was some uncertainty regarding the grievor’s risk to reoffend and that such uncertainty must be resolved in favour of the students. Therefore, termination of the grievor’s employment was not an excessive response in all of the circumstances of the case.<br />
<br />
<br />
[Note: Although not applicable to the above decisions, there can be a human rights aspect to a dismissal because of a criminal conviction. Section 13(3) of the B.C. Human Rights Code provides:<br />
<br />
<em>A person must not</em><br />
<em><br /></em><em>(a) refuse to employ or refuse to continue to employ a person, or</em><br />
<em><br /></em><em>(b) discriminate against a person regarding employment or any term or condition of employment</em><br />
<em><br /></em><em>… because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.</em><br />
<br />
In the above cases, the offences were related to the employment, in particular the jobs involved close contact with minors or other vulnerable individuals. However, if these grievors applied for jobs where they were not in such contact, there would be a human rights issue if they were not hired because of these convictions. Another example would be if someone convicted of a white collar crime (i.e, an accountant or bank employee) and was refused a janitorial or production job. ]<br />
<br />
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-272832042511235112013-02-07T10:04:00.006-08:002014-04-21T13:03:55.853-07:00Discipline and Discharge--Theft of time<div dir="ltr" style="text-align: left;" trbidi="on">
This summary prepared by blog contributor Diane MacLean<br />
<br />
<a href="http://canlii.ca/en/bc/bcla/doc/2012/2012canlii66328/2012canlii66328.pdf">Surrey (City) v Canadian Union of Public Employees, Local 402</a>,<br />
Date: October 29, 2012 Arbitrator: Mark J. Brown<br />
<br />
Grievance: Dismissal (for alleged theft of time; grievance dismissed)<br />
<br />
<u>Summary</u><br />
<br />
Background<br />
<br />
The grievor, a long-term employee, was a by-law enforcement officer. He was regarded as a good employee, having received many commendations. However, he had received discipline for loss of equipment, time theft and dishonesty and inappropriate conduct, all occurring in 2004 or earlier. Due to the nature of the employment, the employer had installed a GPS tracking system to monitor the location and movement history of by-law section vehicles (by-law enforcement officers are assigned specific vehicles). Employees also had fobs that would indicate the time of entering a door and the employer had video cameras in certain areas.<br />
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In March 2011, the grievor attended a meeting carrying his gym bag and his employer decided to investigate his actions. The employer found that the grievor was repeatedly taking breaks in excess of what was allowed and he was dismissed. At the hearing, the grievor testified that he honestly believed he did his best to make up time he spent at the gym, but did acknowledge that he misused company time.<br />
Analysis and Decision<br />
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The arbitrator applied the <em>Wm. Scott</em> analysis. The union conceded that the grievor had given just and reasonable cause for some form of discipline. The real question to be addressed was whether dismissal was excessive in the circumstances. The arbitrator considered factors in the grievor’s favour: he was a long service employee, he apologized and the dismissal was an economic hardship. However, the arbitrator concluded that the grievor:<br />
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<em>… did not work the required amount of time for an extended period of time. It did not occur only during the brief period when he was experiencing a break-up in a personal relationship. I concluded above that the [grievor] was aware he was not making up the time. Therefore it was not a spur of the moment isolated incident ...The nature of the offence is serious. The [by-law officer] position is unsupervised and requires trust. [The grievor] has also been disciplined previously for time theft. On balance, these factors outweigh the others noted above. Therefore I conclude that the employment relationship is irreparable.</em><br />
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-74304675741999124302013-02-07T09:52:00.003-08:002014-04-21T13:03:55.883-07:00Lack of consistency in employer response leads removal of warning letter<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
Here's an interesting arbitration award summarised by my friend and blog contributor Diane Maclean. The summary is set out below and the case bears reading <br />
<a href="http://canlii.ca/en/bc/bcla/doc/2012/2012canlii24880/2012canlii24880.pdf">Telus Communications v. Telecommunications Workers’ Union</a>, <br />
Date: May 8, 2012 Arbitrator: Mark J. Brown<br />
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Grievance: Warning letter (grievance allowed)<br />
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Background<br />
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The grievor was a senior and highly regarded employee. However, she and the employer did not see eye to eye regarding customer service. If a customer called with a problem that would take more than 10 minutes to resolve, an employee was to refer the issue to the appropriate department. If it would take longer than 10 minutes to resolve the problem, employees were to email the employer so the information could be used as a coaching tool for the employee who took the initial call. The grievor’s manager said she would get between three to five of these emails from the grievor per day,compared to an average of between zero and two, that is, she would be handling more of these calls herself, rather than referring them. The grievor usually had the highest or second highest call service time and often the lowest number of calls per day. The grievor’s manager reported that she had several conversations with the grievor, advising her that her focus should be sales. The grievor would improve for a while but then revert back to focusing on customer service (taking full responsibility for a call rather than referring it to the appropriate department). Her manager also advised her several times not to give out her direct phone line or e-mail to customers unless a sale was possible and a follow-up call was necessary, but the grievor continued to give out her direct line and email address. Many letters were sent to the grievor and eventually she received a warning letter which indicated that a failure to improve could lead to dismissal, which led to a grievance.<br />
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Analysis and Decision<br />
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The arbitrator was satisfied that the employer had defined the required level of job performance and that these standards were clearly communicated to the grievor. In fact, the grievor testified that she understood the performance expectations. He also concluded that the employer had given the grievor reasonable supervision and instruction regarding the standard and a reasonable opportunity to meet the standard. As well, he concluded the employee was capable of performing to the standard and had met the target on several occasions. However, the arbitrator found that letters of expectation and/or warnings were were not issued in a consistent manner. For example, some employees who were below but close to the threshold did not receive letters, while the grievor did. As well, there were some employees who did not meet the threshold two or more times and were not issued letters. <br />
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The arbitrator concluded that the warning letter was not justified because the steps in the performance management process had not been consistently applied. He also commented that the employer may have had cause to issue a warning for insubordination, but had not done so.<br />
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-34032737690241503842012-12-17T10:05:00.003-08:002014-04-21T13:03:55.860-07:00Sometimes it is better to start work on the first day of the month<div dir="ltr" style="text-align: left;" trbidi="on">
Sometimes I come across decisions that while on the surface don't seem to have much to do with labour law, they can have huge consequences for working people. For example, disability benefits and group life benefits are often provided as a result of a collective agreement obligation, but recovering those benefits will involve suing the insurance company in court. In those circumstances, it will be insurance law that applies.<br />
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In <a href="http://www.courts.gov.bc.ca/jdb-txt/CA/12/05/2012BCCA0503.htm">Jackson v. Standard Life</a>, the BC Court of Appeal ruled that where a disability insurance policy has a rider or provision that states that eligibility for coverage is the "1st of the month coincident with or immediately following employment date" it means that a worker hired on the second of month onwards is not eligible for insurance coverage until the first day of the following month.<br />
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In the <em>Jackson </em>case this interpretation had disastrous consequences for Ms. Jackson. Ms. Jackson, a vice-principal, started work on August 15, became seriously ill on August 27 and underwent major surgery on August 28 and never returned to work. The court agreed with the insurance company that she did not become covered until September 1 and since she did not have insurance coverage on the date of her disability, she was not entitled to benefits.<br />
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In the lower court the judge had been concerned about the unfairness that the plain meaning of the provision created and had found another "reasonable" interpretation. However the Court of Appeal confirmed that when it comes to interpreting insurance policies, " there is no reason to consider unfairness if no ambiguity has been identified. As stated in Progressive Homes Ltd., “[t]he primary interpretive principle is that when the language of the policy is unambiguous, the court should give effect to clear language...” (paragraph 46).<br />
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-89488415114270665452012-12-13T21:45:00.001-08:002014-04-21T13:03:55.897-07:00 Interesting arbitrations with a human rights angle by Diane MacLean<div dir="ltr" style="text-align: left;" trbidi="on">
Arbitration Summaries (Human Rights Issues: disabilities)<br />
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A union can be involved in an employment dispute that involves (or potentially involves) human rights issues. If so, the dispute can lead to grievance arbitration. Arbitrators have the right to consider human rights issues because:<br />
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• The collective agreement explicitly includes human rights protections; or<br />
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• The collective agreement is deemed to include human rights protection due to the operation of section 89(g) of the B.C. Labour Relations Code which provides:<br />
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For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may ….<br />
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(g) interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement, … and<br />
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The Supreme Court of Canada’s decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 confirmed that such sections in labour legislation gives an arbitrator the jurisdiction to apply the Human Rights Code. In Parry Sound, the grievor was a probationary employee who went on maternity leave prior to the expiry of her probationary term. Within a few days of returning to work, the employer discharged her and she filed a grievance. The arbitration panel held that it was entitled to consider whether the grievor had been a victim of discrimination under the Human Rights Code. The employer appealed this finding to the courts. When the case reached the Supreme Court of Canada, the Court held that the arbitration panel:<br />
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... was correct to conclude that the substantive rights and obligations of the Human Rights Code are incorporated into each collective agreement over which an arbitrator has jurisdiction. Because of this interpretation, an alleged violation of the Human Rights Code constitutes an alleged violation of the collective agreement, and falls squarely within the Board’s jurisdiction. Accordingly, there is no reason to interfere with the Board’s finding that the subject matter of [the] grievance is arbitrable. The Board’s finding that the discriminatory discharge of a probationary employee is arbitrable is not patently unreasonable. <br />
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[Note: The union can be involved in a human rights dispute directly under the Human Rights Code as well. That will be dealt with in future posts. In this post, and the next two to follow, I will be reporting on disputes with human rights overtones that lead to an arbitration decision.]<br />
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In this post, I have summarized some 2012 arbitration decisions dealing with the issue of accommodating a disabled employee. In most cases, the employer will know that the employee is suffering from a disability -- a workplace injury or an extended absence from work due to illness. There are also occasions where an employer must be sensitive to the possibility that an employee, who is under performing or misbehaving, has a mental or physical disability. <br />
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If an employee is disabled, then an employer has a duty to accommodate that employee. This duty is not absolute, for example, an employer does not have to create a position for a disabled employee. The limit to the duty to accommodate is undue hardship. Sometimes the required accommodation can interfere with seniority or require a placement in a different bargaining unit. Therefore, unions also have a duty to co-operate in the search for appropriate accommodation. Finally, it should be noted that the disabled employee has a duty to consider a reasonable, but not necessarily perfect, accommodation.<br />
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The issues of interest in the summaries to follow are:<br />
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• Riverview Hospital: reinstatement was ordered enabling the grievor to access benefits under the collective agreement. However, this does not mean that the grievor is entitled to return to work until the employer is satisfied that the grievor is fit to return to work;<br />
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• Argus Carriers: the employer tried to accommodate the grievor’s disability but reached the point where it could no longer do so;<br />
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• X v. Y: this is an example where the arbitrator considered evidence of a possible disability before concluding there was just cause for dismissal; and<br />
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• Victoria Symphony Society: in this case, there was an extreme lack of trust between the parties and the grievor was reluctant to provide medical information. The Board found that the grievor’s dismissal was premature, causing the loss of an opportunity to explore accommodation possibilities.<br />
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I. British Columbia (Riverview Hospital) v. British Columbia Nurses’ Union, 2012 CanLII 24876 (BC LA) <br />
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Date: February 14, 2012 Arbitrator: Emily M. Burke<br />
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Grievance: reinstatement (clarification of December 2011 order that the grievor is to be reinstated; grievance allowed and grievor ordered reinstated.)<br />
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Summary<br />
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Background<br />
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The grievor had been dismissed as a result of an incident. In an arbitration decision issued in December 2011, the arbitrator concluded that the doctor’s opinion regarding the grievor’s PTSD: <br />
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… establishes the Grievor’s actions in this case to be non-culpable behaviour. Similarly the Grievor’s judgement in this case was impaired such that the decision to leave the patient by herself in North Vancouver and return to Riverview without her was for non-culpable reasons. This leads to the conclusion there was no just cause for the discipline and resulting termination of the Grievor.<br />
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The arbitrator had ordered reinstatement and left it to the parties to determine other kinds of remedies. The union sought immediate reinstatement. The employer sought additional medical information from various sources. The union told the employer that the grievor was able to return to work without restrictions or limitations. The union then forwarded medical information regarding the need for accommodation and a graduated return to work. For a variety of reasons, the employer had not reinstated the grievor.<br />
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Analysis and Decision<br />
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The arbitrator noted that the question of the grievor’s ability to return to work was not relevant to the issue of his reinstatement, and stated that:<br />
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…the Grievor’s reinstatement to employment is not conditional on establishing his fitness to return to work”. Rather, once reinstated to employment status, rights and obligations flow to both the Grievor and the Employer from that employment status. The grievor is able to access appropriate rights under the collective agreement as an employee and the Employer can exercise its rights to ascertain whether the Grievor is able to return to active employment and provide direct care.<br />
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The arbitrator agreed that the employer is entitled to satisfy itself that the employee seeking to return to work is fit to return to work. However, the arbitrator also found that the employer had not to date reinstated the grievor to employment status as it was ordered to do. (It appears that the need for this clarification was so that the grievor could obtain things like short-term disability benefits under the collective agreement.)<br />
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II. Sykes v Argus Carriers Ltd., 2012 CanLII 51400 (BC LA) <br />
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Date: June 14, 2012 Arbitrator: James E. Dorsey, Q.C.<br />
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Grievance: dismissal (this was a non-union situation; the employee complained about his dismissal under Part III, Division XIV of the Canada Labour Code. This decision was reported by CanLII as an arbitration decision. The complaint was dismissed because the employer had exhausted all reasonable accommodations.)<br />
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Summary<br />
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Background<br />
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This decision shows that there is a limit to the employer’s obligation to accommodate a disabled employee. The employee was hired in May 2001 and worked as a truck driver. He was viewed by the employer as “one of its most valuable drivers and a stellar employee”. Over the years, the employee required treatment and surgery for a pre-existing shoulder injury. The employer supported his various returns to work with modified work and lighter duties. However, the employee required more and more accommodations which restricted the trucks he could drive. He eventually was restricted to lifting and carrying less than 20 pounds. The employer dismissed the employee in June 2011. <br />
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Analysis and Decision<br />
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The employee felt that he should have been reassigned to a particular route. However, the arbitrator found that the employee could not do all of the essential duties on that route and stated:<br />
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For, the employer, the added cost of hiring or assigning another employee to do the local relief work Mr. Sykes could not do made that assignment and modification an undue hardship for the employer…. It was an undue hardship for the employer to assign him its Kelowna route within its operation. I find the employer’s non-culpable termination of employment of Mr. Sykes, after exhausting all reasonably available accommodations for him with the increasing limitations resulting from his should disability, was a justified dismissal. The complaint is dismissed.<br />
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III. X v Y, 2012 CanLII 42426 (BC LA)<br />
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Date: July 23, 2007 Arbitrator: John P. Sanderson, Q.C.<br />
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Grievance: Termination of employment (grievance dismissed)<br />
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Summary<br />
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Background<br />
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The grievor was a 23-year employee who worked as a janitor in the bakery department. He had a relatively clean record (some verbal warnings and one written warning, but none after 2000). Close to the production area of the bakery is a small room which has articles used by the janitor for cleaning. There is a sink used by the janitor to drain away paints, etc. Usually only the janitor uses this room. In July 2011, a female employee had reason to go to the room and discovered the grievor standing in front of the sink urinating. The employer conducted an interview. The grievor ultimately admitted (after being told there was a possibility of video evidence) that he had urinated in the sink and had done so three or four times in the preceding months. The employer asked if he had any medical issues that required accommodation and the grievor produced a doctor’s note. The employer ultimately concluded that the grievor had no medical condition that justified his behaviour and he was dismissed on September 20, 2011.<br />
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Analysis and Decision<br />
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At the hearing, the grievor explained the he had an urgent need to urinate and he didn’t think he could make it to the washroom. This was the same issue on other occasions when this happened.<br />
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The employer testified that store cleanliness and hygiene is of extreme importance to the employer and it provides extensive training on this subject. The note provided by the grievor’s doctor read “For medical reasons requires regular bathroom breaks” and the employer felt that the note did not identify any medical problem which might have affected this particular situation. Therefore, there was no medical justification for the conduct, which was a serious breach of the store’s rules regarding cleanliness.<br />
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After the grievor was dismissed, he went to a urologist who provided a report which identified “some nonspecific prostate firmness at [sic] significant urinary tract symptoms”. The grievor also testified that he saw his doctor regularly throughout the summer of 2011 but never mentioned the problem and he could not explain why he did not do so. As well, he could not recall having similar difficulties outside the workplace.<br />
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The arbitrator said his first task was to determine the reason for the grievor’s behaviour. The arbitrator also stated:<br />
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What are the employment consequences of such acts? In my view, this form of misconduct is so serious in an employment setting where proper hygiene is of such significance, that it undermines the viability of the employment relationship. This is not a new or abstract arbitral determination. In the food industry, the issue has had to be addressed in a remarkable number of occasions by arbitrators, including in this province, where an employee has chosen to ignore the basic standards of civilized behaviour in their workplace. The arbitral response to such misconduct has been consistent and in my view, entirely appropriate. In the food industry it is viewed as misconduct of a particularly serious nature.<br />
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The arbitrator noted the grievor’s long service and positive employment record, but did not feel they were sufficient, given the seriousness of the offence. As well, he noted the union’s arguments that the grievor had an unspecified medical condition that caused the urgency. However, the arbitrator held there was no objective medical evidence of such a condition. As well, the grievor did not raise the subject with his doctor or have the problem anywhere else but at work. The arbitrator concluded:<br />
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After a careful consideration of all of the evidence and in particular, the testimony of the grievor, I conclude that while he might have had urinary discomfort, that does not mean he had no choice but to urinate in the janitor’s room rather than get himself to the washroom. To the contrary; it is clear the grievor had a choice but he made the wrong choice, not once, but at least four or five times before he was found out. <br />
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In my view, the grievor’s choice was deliberate and reckless. He selfishly ignored the interests of his employer and his co-workers. He does not seem to understand the gravity of his actions. Other than saying he was sorry, he has not expressed remorse or acknowledged that his choice, as has termed it, may have been the wrong choice. His disregard of the rights of his employer and his co-workers to maintain the most basic standards of decency and respectful conduct in the workplace is disturbing. When he was discovered by Ms. A, instead of apologizing to her on the spot, he made a smart-ass remark about the “boys”. As for the legitimate interests of his employer, his misconduct put at serious risk the business of the organization had a customer passed by the open door and looked in while he was urinating. The impact on the welfare of the employer and his co-workers could have been devastating. <br />
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In the result, for the reasons noted above, I find no proper basis to interfere with the penalty imposed by the employer. The grievance is hereby dismissed.<br />
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IV. Musicians’ Association of Victoria and the Islands, Local 247 v. Victoria Symphony Society, 2012 CanLII 51817 and 2012 CanLII 51417 (BC LA)<br />
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Date: May 11, 2012, August 9, 2012 Arbitrator: James e. Dorsey, Q.C.<br />
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Grievance: dismissal (grievance allowed; compensation ordered but no reinstatement)<br />
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Summary<br />
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Background<br />
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The grievor had been a principal trumpet player for twenty-five years. He started experiencing some discontent with his employment causing him to take counselling and a sabbatical leave for one seaons. Then he required dental surgery which caused him to miss another season. Then he injured his hearing on the job. The grievor was initially turned down for WCB benefits and received sick leave benefits from his employer. He appealed the WCB decision and received benefits but did not reimburse the employer for his sick leave benefits. He was slow in providing medical information to his employer which raised some suspicions. As well, it made it difficult for the employer to plan staffing for each season. The employer’s director, stating that the grievor was the most uncooperative musician he ever met, dismissed the grievor in September 2009. <br />
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Analysis and Decision<br />
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The arbitration panel recognized the employer’s frustration with the grievor, stating:<br />
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He was taking every entitlement and benefit from their relationship, but not behaving as a cooperative team member of the orchestra and employee of the Symphony. In response to his injury and illness and the Symphony’s right and responsibility to monitor his absence, [the grievor] was pursuing a path of confrontation, not co-operation, utilizing the services of both his union and a privately retained lawyer.<br />
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That being said, the arbitration panel found that the dismissal was premature, stating:<br />
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The Symphony acted precipitously, prematurely and mistakenly when it decided it would deny sick leave because proof of illness was not provided and then dismiss [the grievor] for being absent without written permission. [The grievor] did not require the Symphony’s permission. As was well-known to the Symphony, he was absent due to a work-related injury and in receipt of workers’ compensation benefits and long-term disability benefits. This was his entitlement to be absent from work.<br />
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The employer did not have just a reasonable cause to dismiss the grievor. Due to his permanent disability, the grievor cannot be restored to his former position. The arbitration panel referred the matter back to the parties to determine “whether, on what basis and to what extent” the grievor is to be accommodated or compensated for the dismissal while absent from work due to a disability.<br />
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The parties were very far apart and could not agree on a remedy and the matter went back to the arbitration panel, which concluded that, although the dismissal was premature, it was not done in bad faith or in any manner that would justify an award for punitive damages. The grievor was unable to perform as a musician for three seasons prior to the dismissal and no loss of wages was caused by the employer’s decision to dismiss him. As a result, the grievor was not entitled to any further pension contributions or paid sick leave. <br />
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The arbitrators concluded that the loss to the grievor was “the loss of the opportunity to explore accommodation possibilities and possibly retain continuity of service and some benefits under the Master Agreement.” While the union had proposed a non-musical role for the grievor, the arbitration board found that there was not the requisite trust for such a role to be successful. The arbitration panel also noted that, although the premature dismissal was discriminatory, at some point, with the grievor being unable to perform as an orchestra musician and no other available employment, the employer could terminate the grievor for non-culpable absenteeism.<br />
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The arbitrators ordered $18,000 in compensation, less $4,104 in reimbursement to the employer. <br />
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-36994226598299754372012-12-09T19:19:00.003-08:002014-04-21T13:03:55.863-07:00Rate of pay for working on a statutory holiday<div dir="ltr" style="text-align: left;" trbidi="on">
A brief and clear arbitration <a href="http://canlii.ca/en/bc/bcla/doc/2012/2012canlii69502/2012canlii69502.html">decision </a> by Arbitrator Colin Taylor on the rate of pay for a coal mine worker who worked on Christmas Day in December 2011 was issued on November 13, 2012. It reminds us of the importance of negotiating precise collective agreement language, and of the need to make the resolution of disputes through labour arbitration more timely. At least everyone in that bargaining unit will know what rules apply if someone workes this Christmas day. <br />
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For those interested in improving the process of labour arbitration, the Labour Law Subsection of the BC Branch of the Canadian Bar Association sponsored several panel discussions at their meetings this fall. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-85057301980152819932012-12-06T22:10:00.001-08:002014-04-21T13:03:55.894-07:00A blog I'm recommending<div dir="ltr" style="text-align: left;" trbidi="on">
<a href="http://wherq.wordpress.com/">http://wherq.wordpress.com/</a> some recent posts include: Freedom of Speech in Communicative Capitalism, What kind of rights are workers' rights? and Economic Migration and Temporary Foreign Workers. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-21617127896599714422012-12-05T09:44:00.001-08:002014-04-21T13:03:55.849-07:00What laws protect the right to engage in dissent? <div dir="ltr" style="text-align: left;" trbidi="on">
<em>Here's a free opportunity to hear legal experts. </em><br />
Join us for a Day of Dissent on December 7, as we examine rights under attack in Canada and the extent to which the right to engage in dissent is protected by Canadian and International law.<br />
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Speakers: Pearl Eliadis, Cameron Ward, Leo McGrady, Q.C., Gwen Brodsky, Matt Eisenbrandt, Fiona Koza, Jason Gratl and others.<br />
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Location: SFU Harbour Centre<br />
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515 West Hastings St., Vancouver, BC<br />
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Time: Friday, December 7, 1:00 to 5:00 p.m.<br />
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<strong>This event is free.</strong><br />
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Online registration is encouraged but not required.<br />
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Presented by: Lawyers Rights Watch Canada; Amnesty International; BC Civil Liberties Association; Council of Canadians; and New Media Journalism Program, SFU Continuing Studies. Speakers and topics below. <br />
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Panel 1 – Local <br />
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o Leo McGrady QC – Cedar as Sister: Indigenous Law and the Common Law of Civil Disobedience.<br />
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o Rueben George and Phil Lane on moves to stifle First Nations opposition <br />
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o Cameron Ward: The right to be annoying: Lessons from the front lines, defending activists at Clayoquot Sound, APEC and elsewhere. <br />
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o Jason Gratl: Quiet Suppression of Quiet Sedition: Occupy in the Courts <br />
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Panel 2 – Global<br />
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o Matt Eisenbrandt - Obstacles to Holding Canadian Corporations Accountable for Abuses Abroad<br />
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o Gwen Brodsky on international monitoring bodies identifying Canada’s violations and making recommendations for compliance. <br />
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o Gail Davidson The Right to Dissent: International Law Guarantees <br />
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o Fiona Koza: Anti-mining activists experience violence for speaking out<br />
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Keynote Speaker: Advocacy and Dissent in Canada: The State of the Union<br />
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Pearl Eliadis will speak about the Voices-Voix Coalition's work in documenting attacks on civil society in Canada, as well as dissent and advocacy. Organizations whose views do not align with the government of Canada have found themselves vilified in the public sphere as "terrorists", money launderers and/or as working against Canadian interests. Case studies include approximately 35 reputable and prominent community-based and human rights organizations that have been defunded, a human rights defender placed under government surveillance, and at least three organizations whose charitable status has been attacked. These case studies are used to examine the emerging norms with respect to the enabling of civil society, as well as the impact on freedom of peaceful assembly, freedom of Association, and freedom of expression. The presentation will also examine parallel efforts to eliminate or suppress robust and reliable research in the public sector, knowledge management institutions, and efforts to fire or interfere with independent watchdog institutions and whistleblowers."<br />
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Pearl Eliadis, B. C. L., LL.B., B.C.L 0xon), human rights lawyer and lecturer in civil liberties at McGill University. Full Member of the McGill Centre for human rights and legal pluralism <br />
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-7441731753935414270.post-62719289394432056962012-12-04T17:25:00.002-08:002014-04-21T13:03:55.877-07:00Right to Strike--Lawyer Craig Bavis' report on the hearing before the Saskatchena Court of Appeal<div dir="ltr" style="text-align: left;" trbidi="on">
Here's an update on the Saskatchewan right to strike case that was argued before the Saskatchewan Court of Appeal last week. Counsel for the Saskatchewan Federation of Labour <a href="http://vslo.ca/craig_bavis.htm">Craig Bavis</a> of Victory Square Law Office provided the update.<br />
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The appeal consisted of a 5 judge panel ( Klebuc (Chief Justice), Richards, Ottenbreit, Caldwell and Heroufand), approximately 24 lawyers: 3 parties (the AG, SFL et al, and RWDSU), 4 union intervenors, 2 national intervenors (CCLA and CAUT), the AG of Canada, and approximately 12 employer intervenors including health authorities, crown corps, municipalities, and universities, and the Chamber of Commerce. The appeal record was approximately 19,000 pages, the common book of authorities over 200 authorities, and we filed a total of 21 intervenor and party facta. While there were dozens of arguments and perspectives on various issues, the three most significant issues were:<br />
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1. Is the right to strike a statutory or legislative dispute resolution system?<br />
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2. Is test for a violation of section 2 freedoms uniform or should the courts apply a different test, substantial interference, for breaches of 2(d)? <br />
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3. In applying the substantial interference test, does the court evaluate the overall impact of the restriction on an aggregate basis, or on an individual basis?<br />
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Arguments: <br />
1. While there is no doubt that there was a freedom to strike at common law, the AG argued that the incorporation of the right to strike into the Wagner Act model, along with additional protections such as right to reinstatement at the end of a strike, transformed it into a derivative, statutory right. The SCC in Fraser at para 41 noted that 2(d) does not guarantee a “legislated dispute resolution mechanism”. Counsel for the AG consistently stated that Fraser said no “dispute resolution mechanism” which included strikes. The Unions argued that a “legislated dispute resolution ” meant a legislated process such as interest arbitration, mediation, or conciliation, which were not guaranteed, meaning that unions retained a right to strike. <br />
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2. The Unions forwarded an approach to evaluating restrictions on the right to strike under section 2(d) consistent with the approach taken by the courts in evaluating breaches of the freedom of religion and expression: a low threshold at the infringement stage with appropriate justification tests at section 1. It does not make sense that there should be different tests, that of substantial interference per Health Services or effective impossibility per Fraser, for associational freedoms than the other fundamental freedoms. Section 1 and the Oakes test, is where restrictions on the right to strike, such as in the case of essential services, should be justified. The AG strongly resisted this as contrary to Fraser and Health Services and the nature of the right to strike as merely derivative of freedom of association, like collective bargaining. <br />
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3. If the correct test for finding an infringement is that of “substantial interference”, the AG submitted that the Court need only to look and at the impact of the law at the macro level. If the majority of public sector unions achieved collective agreements under the legislation, then there was no substantial inference, even if some unions experienced difficulty. The Unions argued that the test must apply to each bargaining unit and if the right to strike of one union was substantially interfered with then the legislation was unconstitutional, regardless of the success of other unions. <br />
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The Court was well aware of the significance of this issue (given that they assigned 5 judges) and that there are similar right to strike cases going ahead with Air Canada and Canada Post and the back to work legislation brought by the federal government that will get to trial in Ontario in 2013. The Court will make this decision a priority, but did not commit to when it would issue a decision, likely March or April 2013. <br />
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