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Right to Strike Protected by the Charter

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.
The case can be found at the SCC website at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14610/index.do.

My favourite quote from the majority 7 to 2 decision written by Madam Justice Abella is this:

 [3]                              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:

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 — in all its simplicity — is the essence of the matter.

 

(Laws Against Strikes (1972), at p. 8)

The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction. (my emphasis).

 

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. 

 

Discrimination on the basis of family status

This blog post also available Quail Worth & Allevato law blog

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 Health Sciences Association v.Campbell River and North Island Transition Society available on Canlii at: http://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.pdf .

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”.

The test in Campbell River has been rejected by the Federal Court of Appeal in CNR v. Seeley also available at http://www.canlii.org/en/ca/fca/doc/2014/2014fca111/2014fca111.pdf .

In Seeley, 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:
(i) that a child is under his or her care and supervision;
(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
(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
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”

Note that the approach is not limited to childcare obligations, but any obligation to any family member to whom there is a legal responsibility.

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.

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LNG and provincial taxes

Taxing LNG Exports

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 http://qwlaw.ca/qw-law-blog.  An interesting read.

Quail & Worth--- new law firm

Check out Quail & Worth, Barristers & Solicitors   the best new labour and regulatory law firm in Vancouver !
 

Utilities Regulation and the law

Jim Quail, 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. 

Discipline Investigations--when the police is also involved

COPE 378's Legal and Regulatory Director  Jim Quail 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.
http://jimquail.com/2014/02/09/employers_and_police/
 

No violation of privacy and no violation of s.2(d) of the Charter--Supreme Court of Canada rules

The Supreme Court of Canada handed down the Bernard v. AG of Canada and PIPSC decision on Friday.

 

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. 

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.

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.

The Supreme Court of Canada disagreed with her.  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.  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.

The court confirmed that “a cornerstone of labour relations law in this country” is the principle of majoritarian exclusivity, i.e.  that the union has the exclusive right to bargain on behalf of all employees in a given bargaining unit, including Rand employees.  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)     

Essential Services in the lockout of IBEW workers by Fortis BC--analysis

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 http://jimquail.com/

BC labour arbitration awards--March, 2013

Thanks to Diane MacLean below are summaries of relevant BC Labour Arbitration awards released during March 2013

Arbitration Summaries – March 2013          

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.

Accenture Business Services of BritishColumbia v Canadian Office and Professional Employees Union, Local 378, 2013CanLII 12432 (BC LA), March 8, 2013             (Arbitrator  Mark J. Brown): eligibility for statutory holidays when using a time bank to bridge (dismissed)

Background

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.

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.

Analysis and Decision

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.

GreatPacific Industries Inc (Division) v Teamsters Local Union No. 213, 2013 CanLII12416 (BC LA), March 13, 2013       (Arbitrator Mark J. Brown): policy and individual grievances regarding travel time and expenses.

Background

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.

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.

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.

Analysis and Decision

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:

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.

… 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...

The arbitrator also commented that:

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.

 Quicklaw Decisions – Brief Summaries

BC Public School Employers’ Assn. V. BC Teachers’ Federation, [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.”

Connaught Inn Ltd. V. Unite Here, Local 40, [2013] B.C.C.A.A.A. No. 29, March 5, 2013 (Arbitrator A. Paul Devine):

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.

Health Employers Assn. of British Columbia v. Health Sciences Assn. of British Columbia, [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:

… 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.

British Columbia Government and Service Employees’ Union v. Cariboo Regional District, [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.

United Steel Workers Local 9705 v. Kootenay Savings Credit Union, [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:

·         The provision does not prohibit the assignment of all bargaining unit to excluded employees;

·         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;

·         The test is whether sufficient work was assigned that otherwise could have employed a regular bargaining unit employee; and

·         The work at issue must be established to be bargaining unit work.

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 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.

BC Labour Arbitration Summaries

Diane MacLean has kindly provided the following summaries of labour arbitration summaries released February 2013

Arbitration Summaries – February 2013     

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.

The News Group, a Division of GreatPacific Enterprises Inc v. Teamsters Local Union No 213, 2013 CanLII 6407 (BCLA), February 4, 2013            (Arbitrator Mark Brown): grievance regarding displaced fleet employees (settled)

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.

Cariboo Pulp and Paper Company v.Communications, Energy and Paperworkers’ Union of Canada, Local 1115 (BC LA), February 5, 2013 (Arbitrator John Kinzie): grievance of denial of short term disability benefits (dismissed)

Background

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.

Analysis and Decision

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.

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.

Dryco Drywall Supplies Ltd. V. Teamsters Local Union No. 213, 2013 CanLII 7695 (BC LA), February 19, 2013 (Arbitrator Mark J. Brown): termination grievance (allowed; suspension substituted for termination)

Background

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.

Analysis and Decision

The arbitrator applied the usual Wm. Scott 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:

·         The incident was serious and the other employee could have been seriously hurt and the customer could have suffered a more serious injury;

·         The grievor’s actions were not malicious and he did not knowingly risk injury to others, but his actions were careless and stupid;

·         When the grievor went outside, he believed the flames were out;

·         He did apologize as soon as he knew what happened – he took responsibility right away;

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.

Catalyst Paper Corporation v.Communications, energy and Paperworkers Union of Canada, Local 1123 (BC LA), February 20, 2013 (Arbitrator Robert Pekeles): grievance regarding the entitlement of certain employees to receive recalculated long term disability benefits (“LDT”)(allowed)

Background

The parties had new wording in their collective agreement:

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.

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?

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%.

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).

Analysis and Decision

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 Catylst Paper (May 3, 2012), where the arbitrator referred to the reason of arbitrator Korbin in the Board of Education of School District No. 36 (Surrey)/BCPSEA v. BCTF/Surrey Teachers’ Association (March 6, 2009), unreported:

With respect to the Employer’s reliance on the Wire Rope and Noranda 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)

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.

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.

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.

West Shore Parks and Recreation Society, 2013 CanLII 9138 (BC LA), February 22, 2013 (Arbitrator John Kinzie): policy grievance regarding scheduling regular employees to work weekends without agreement with union (dismissed)

Background

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:

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.

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’.

Analysis and Decision

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’.

Columbia Containers Ltd. V. TeamstersLocal Union No. 31 2013 CanLII 10700 (BC LA), February 28, 2013 (Arbitrator R.K. McDonald): grievance regarding rates for employees driving a new kind of truck (dismissed)

Background

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:

… 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.

 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.

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.

Analysis and Decision

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.

Quicklaw Decisions – Brief Summaries

Southwest Contracting Ltd. V. Teamster, Local Union No. 213, [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.

Catalyst Paper Corp. (Powell River Division) v. Communication, Energy and Paperworkers Union of Canada, Local 76, [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.

Nigel Services for Adults with Disabilities Society v. Construction and Specialized Workers’ Union, Local 1611, [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 Public Service Act, 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.

British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn.,[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 Employment Standards Act 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:

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.

Unite Here, Local 40 v. ECN Holdings Ltd. (Vacation Inn) (No Evidence Motion Greivance), [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 Labour Relations Code and enable an arbitrator to meets his or her duties under Code”. The arbitrator dismissed the motion, stating:

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.

British Columbia Public School Employers’ Assn./School District No. 36 (Surrey) v. British Columbia Teachers’ Federation/Surrey Teachers’ Association, [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 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 Code upholding the fundamental right of a party to influence the choice of both the issues and the arbitrator.

Busters' tow truck drivers--owner operators and their employees in the same bargaining unit

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.

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.

In a decision handed down on April 23, 2013 Busters v. Teamsters Local 31, 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.

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". 

Workers' Compensation Tribunal decision on breast cancer overturned by BC Supreme Court

In a decision 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.
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 Dunsmuir because of BC's Administrative Tribunals Act.  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."   

Summaries of recent BC Arbitrations --Guest Post by Diane Maclean

Arbitration Summaries – January 2013

There were three arbitrations reported on CanLII 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.

Martin-Brower of Canada Co. and Teamsters Local union No 31, 2013CanLII 950 ((BC LA) (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)

Background

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.

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.

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.

Analysis and Decision

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:

… 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.

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.

Were the standards unreasonable as argued by the union? In considering this issue, the arbitrator commented:

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.

Having had the benefit of many days of hearing in evidence with numerous documents, I have been driven to the conclusion that the Union 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…

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:

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.

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.

Construction Labour Relations Association of BC v. Construction,Maintenance and Allied Workers Bargaining Council, 2013 CanLII 3548 (BC LA), (January 28, 2013, Arbitrator Michael Fleming: interest grievance regarding the appropriate rate of pension contributions in the Semi-Skilled Carpenter classification (SSC).

Background

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.

Analysis and Decision

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.

Quicklaw Decisions – Brief Summaries (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)

British Columbia Public Service Agency v. British Columbia Government and Service Employees’ Union (Campbell Grievance), [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.

Timberwest Forest Co. v. United Steelworkers, Local 1-1937 (Woodlands Letter Grievance), [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.

EV Logistics, British Columbia General Partnership, Ambient Centre and Perishable Centre v. Retail Wholesale Union Local 580 (Benefits Review Grievance), [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.

Husband Food Ventures Ltd. (D.B.A. IGA Store No. 11) v. United Food and Commercial Workers International Union, Local 1518 (Termination Grievance), [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 Wm. Scott 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.

Health Employers Assn. of British Columbia v. Hospital Employees’ Union (Rothenburger Grievance), [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.

Catylst Paper, Port Alberni Division v. Communications, Energy and Paperworkers Union of Canada (Cairney Grievance), [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.

Howe Sound Pulp and Paper Corp. v. Communications, Energy and Paperworkers Unino of Canada, Local 1119 (Widsten Grievance), [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 Wm. Scott 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: Howe Sound Pulp & Paper Corporation v. Communications, Energy and Paperworkers Union of Canada, Local Union No. 119, [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 Wm. Scott 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 Wm. Scott. 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 Wm. Scott. 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 Wm. Scott 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 Wm. Scott question.]

British Columbia Hydro and Power Authority v. Canadian Office and Professional Employees Union, Local 378 (Position Grievance), [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.

B.A. Blacktop Ltd. v. Teamsters, Local Union No. 213 (Proper Pay Rate Grievance), [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.

BC Ferry Service Inc. v. British Columbia Ferry and Marine Workers’ Union (Travel Time Grievance), [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."

Gateway Casinos & Entertainment Ltd. (Grand Villa Burnaby) v. British Columbia Government and Service Employees’ Union (Application of Seniority Grievance), [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”

Arbitration summaries with human rights overtones-- discrimination on the basis of sex or family status

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 Human Rights Code, as arbitrators have full authority to apply the Code. The applicable section of the Code is Section 13 (1), which provides:

A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

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 …

Note: the Canada Human Rights Act and other provincial human rights legislation have similar provisions.)

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 CanLII. 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.

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.

UNITE HERE, Local 40 v Compass Group Canada Ltd.

Date: May 24, 2012 Arbitrator: James E. Dorsey, Q.C.

Grievance: Failure to return to position on return from maternity leave (grievance allowed)

Summary

Background

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.

Analysis and Decision

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.

Below are some recent decisions related to maternity and parental leave:

 • Okanagan College v. Okanagan College Faculty Assn., [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.

• British Columbia Public School Employers’ Assn. v. British Columbia Teachers’ Federation (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.

 Osprey Care Inc (Hamlets at Penticton) v Hospital Employees’ Union

Date: June 28, 2012 Arbitrator: John P. Sanderson, Q.C.
Grievance: Termination for inappropriate sexual behaviour (grievance dismissed)

Summary

Background

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:

• First, the grievor was suspended after a co-worker (also referred to as complainant) alleged inappropriate sexual conduct away from the work place;

• The employer conducted an investigation and the grievor denied the allegations;

• The employer also referred the matter to the College of Registered Nurses of British Columbia;

• The grievor refused to provide a copy of a previous consent agreement with that body;

• Notwithstanding the consent agreement, the grievor still denied wrong doing; and

• 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.

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.

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.

Analysis and Decision

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.”

The arbitrator decided the disciplinary penalty was not excessive in the circumstances, for the following reasons:

• the grievor had been untruthful in giving his evidence;

• he exhibited no remorse or expressed any sympathy for the complainant or to the employer;

• remained uncooperative and unapologetic throughout the employer’s investigation;

• 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

• at the hearing, he insisted that the complainant was so attracted to him that she was the instigator of the event.

[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.]

British Columbia Maritime Employers Assn. and Western Stevedoring Ltd. V. International Longshore and Warehouse Union, Local 500 [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]

Date: March 9, 2012 Arbitrator: Robert Pekeles

Grievance: Dismissal for insubordination/refusal to follow directions (grievance allowed)

Summary

[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.]

Background

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.

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---“.

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.

Analysis and Decision

The arbitrator noted that:

… 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.

The arbitrator then focused on whether sex discrimination was a factor in the dismissal and made the following findings:

• 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”;

• 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;

• 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

• 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.

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.

Another  interesting decision that can be found on Quicklaw is: Warner Bros. Television (B.C.) Inc. (Supernatural 5 films Inc.) v. British Columbia and Yukon Council of Film Unions, [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.

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”.



III. Fraser Health Authority (Surrey Memorial Hospital) v. Health Sciences Association of British Columbia, 2012 CanLII 24878 (BC LA)

Date: April 12, 201 Arbitrator: Mark J. Brown

Grievance: Entitlement to special leave (allowed in part)

Summary

Background

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”.



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.

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.

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.

Analysis and Decision

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.

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:

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.

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.



[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.]