×

No General Right For Grievors To Remain Unidentified In Labour Arbitration Decisions

privacy
The British Columbia Court of Appeal (in a recent case identified as United Food & Commercial Workers Union, Local 1518 v. Sunrise Poultry Processors Ltd.) has confirmed that there is no general right for grievors or witnesses to avoid having their names disclosed in labour arbitration awards. The Court concluded that labour arbitrators are bound by the requirements of the Personal Information Protection Act ("PIPA"), but that they are not required to obtain consent from grievors or witnesses to disclose personal information about those individuals in arbitral awards. Read More...

"What About Your In-Laws Or Your Neighbour?" Family Status Discrimination – Yet Another Development

family
Family status accommodation in the workplace continues to undergo critical judicial scrutiny. A recent Alberta case that could have implications for employers has taken yet another direction in considering what obligations should be placed on employers in connection with requests for family status accommodation.

Under the stricter BC approach, which requires that the employee demonstrate a serious interference with a substantial family obligation, it is a challenge for employees to claim a right to be accommodated. While there is a growing number of court cases outside BC that have adopted a lower test for triggering the duty to accommodate, some decisions have required that employees demonstrate that they considered reasonable efforts to self-accommodate their childcare obligations before they can trigger an obligation on the employer to reasonably accommodate their obligations. Under this approach, it was appropriate for employers to ask employees who are seeking accommodation about other options for childcare before exploring whether changes at work should be considered.

The Alberta Court of Queen's Bench has now waded in with a decision that could have consequences on the employer's duty to accommodate:
SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162. Read More...

Off The Clock Misconduct: When Can You Terminate?

dismissed
In Union of Public Employees, Local 4400 v Toronto District School Board, 2015 CarswellOnt 6561, an employee's off-duty conduct resulted in dismissal. Sylvia Hatzantonis, an employee of Toronto District School Board ("TDSB"), was terminated for:

  • Engaging in comment and conduct inconsistent with that expected of a TDSB employee;
  • Attempting to conceal her conduct by soliciting and counselling others to provide false evidence; and
  • Dishonesty and breach of trust during the TDSB's investigation in an attempt to mislead.
Read More...

Adjudicator Upholds Termination For Breach Of Employer’s Technology Policy

dismissed
As technology becomes more ubiquitous in the workplace, the importance of having proper policies and discipline to govern the use of that technology by workers becomes more critical. A recent case involving a federal government worker serves as an illustration of some of the unique issues raised by employee misuse of technology. Read More...

Hidden Camera Leads To Dismissal

hidden camera
An arbitrator recently upheld the termination of a "reliable and capable" Personal Support Worker (a "PSW") with no prior disciplinary record, because of significant mistreatment of an individual she was responsible for, and because she did not show the kind of insight required. Read More...

SK court finds that deciding against arbitral consensus without adequate explanation is factor that spoke against reasonableness.

time theft
The Saskatchewan Court of Queen’s Bench found that deciding against arbitral consensus without adequate explanation was a factor that spoke against reasonableness. Read More...

Dismissal Of Employee With No Previous Disciplinary Record Upheld

privacy2
A Saskatchewan arbitrator upheld the termination of a 25-year employee with a discipline-free record in Health Sciences Association of Saskatchewan v Saskatchewan Association of Health Organizations (Prairie North Health Region), 2014 CanLII 5231. Read More...

No Punches Thrown, But Employee Properly Dismissed For Yelling, Swearing And Abusive Conduct

tear
An employee need not physically assault a co-worker in order to be dismissed for workplace violence, an arbitrator's decision shows. Read More...

Recent Arbitral Decision Suggests There Are Objective Limits To An Employee’s Right To Religious Accommodation

world-religons
Increasingly, employers are being faced with requests from employees requesting religious accommodation on various grounds, including paid time off for religious holidays; extended religious leaves of absence for religious pilgrimages; and modification of scheduling requirements. With workplaces rapidly becoming more diverse and multicultural, it is often difficult for employers to ascertain whether or not they are required to accommodate such requests without facing significant human rights damages. A recent Ontario arbitral decision holds out a ray of hope for employers that there are indeed limits to establishing a prima facie case of discrimination on the basis of religion or creed. Read More...

Recent Ontario Decision Confirms That Social Media Spaces Are Part Of The Workplace

twitter-logo
The Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance), [2016] O.L.A.A. No. 267 decision deals with the use of social media in the workplace, and to what extent employers are required to manage their accounts in a way that protects their employees. Read More...

A Cautionary Tweet: Employer Customer Service Accounts Must Not Encourage Harassment Or A Toxic Work Environment

twitter
A recently released decision on a grievance originally filed by the Amalgamated Transit Union against the Toronto Transit Commission ("TTC") in 2012 should cause employers who operate customer service based twitter handles to revisit their tweeting practices. Based on this decision, employers should ensure that a twitter policy is developed to protect employees from harassing comments. Read More...

Caution For Employers Dealing With Employees Exhibiting Suspected Mental Health Issues

suspension
In Passamaquoddy Lodge v CUPE Local 1763 2016 NBQB 056 the Court of Queen's Bench upheld an original arbitration decision condemning an employer for suspending an employee pending the outcome of a psychiatric evaluation. Read More...

False Assault Allegation Against Supervisor Was Just Cause For Dismissal: Video Evidence Was Conclusive

video
An employee who filed a written complaint, falsely alleging that his supervisor deliberately ran into him with a sharp blow from his shoulder, was dismissed for cause, an arbitrator has held. Read More...

Estoppel Applied By Saskatchewan Court Of Appeal To Prevent Compensation Change

estoppel
In the recent decision of Viterra v Grain Services Union, 2013 SKCA 93 the Saskatchewan Court of Appeal reaffirmed the power of arbitrators to hold parties to past practice in applying a collective agreement through the doctrine of estoppel. Read More...

Terminated For Tweeting: A Tale Of Two Toronto Firefighters

twitter
When used properly, social media can be a powerful tool for connecting individuals, marketing businesses and mobilizing the masses behind a cause. However, many organizations have learned the hard way that inappropriate social media use by employees can have a detrimental effect on an organization's reputation.

That is why it is not surprising to see so many accounts of people losing their jobs over their ill-advised social media use. But as our colleague in Vancouver recently noted, not all social media transgressions will justify termination.

Many will recall the headlines of many national news outlets that reported the termination of two Toronto Fire Fighters for their inappropriate use of Twitter. The future of these individuals as firefighters was decided in two recent arbitration decisions which also provide guidance for employers seeking to discipline employees over social media use.
Read More...

Post-Termination Evidence Of Mental Illness Leads To Reinstatement

depression
In the recent decision of Cape Breton (Regional Municipality) v CUPE, Local 933, 2014 NSSC 97, the Nova Scotia Supreme Court upheld an arbitrator's decision to conditionally reinstate an employee who had been terminated due to excessive absenteeism. The employer was not aware that the employee suffered from depression at the time of the termination. Read More...

Lying About Absence Gives Just Cause For Termination, Says Alberta Court Of Appeal Overturning Arbitrator

lying
In Telus Communications Inc. v Telecommunications Workers Union, an Alberta Court of Queen's Bench chambers judge quashed the decision of an arbitrator, upholding termination of a grievor terminated for dishonesty surrounding an absence from work. The decision was later upheld by the Alberta Court of Appeal. Read More...

Dismissal Upheld After Sexual Threats Over Facebook

facebook
As one of the seminal decisions of 2014, USW and Tenaris Algoma Tubes Inc. raised the issues of off-duty conduct, sexual harassment / threats and social media. The grievance arbitration decision upheld the dismissal of an employee after he posted sexually threatening and harassing comments regarding another employee on his Facebook page. Read More...

Let's Take This Outside: Can Employers Discipline Employees For Off-Duty Misconduct?

employee-misconduct
There has never been a worse time for professional sports leagues when it comes to dealing with player misconduct off the field. Headlines across North America have been full of stories detailing the trials and tribulations of league officials in disciplining these athletes. Each case, it seems, has resulted in diverse and inconsistent disciplinary results.

Compare, for example, the differences between the Los Angeles Kings' conduct with defenceman Slava Voynov after his arrest on domestic violence charges, with the way the Colorado Avalanche reacted after goaltender Semyon Varlamov was charged with a similar offence last year. The NHL is not alone in dealing with these issues. The NFL has encountered its own controversies over the off-field conduct of several stars, including running backs Ray Rice and Adrian Peterson. These matters bring sharply into focus the difficult issues facing employers when an employee's conduct is called into question.
Read More...

"Zero Tolerance", Automatic Suspension Approach To Safety Violations Criticized, Written Warning Substituted

zero tol
Employers are increasingly taking a "zero tolerance" approach in which a minimum level of discipline – whether a suspension or dismissal – is imposed for certain serious safety violations. In a recent case, an arbitrator criticized the approach as unfair to the employee. Read More...

Putting Out A Fire: Inappropriate Tweets Result In Unpaid Suspension For Firefighter

twitter
In what we believe to be a first in Canada, a unionized employee has been disciplined for inappropriate twitter comments. The employer's decision to discharge the employee was set aside in favour of a three-day unpaid suspension. Arbitrator Gail Misra noted at paragraph 216 in City of Toronto and Toronto Professional Firefighters Association, Loc. 3888 2014 CanLII 62879:

In considering what the appropriate penalty should be, I have considered that at the time he made the 'swat in the back of the head' comment, the Grievor had identified himself as a Toronto firefighter. As well, the Grievor was not completely candid with the Employer about when he had removed the reference to being a Toronto firefighter from his Twitter profile. Honesty during an employer's investigation process is important as it may later be a mitigating factor. I have also considered the Grievor's lack of understanding that his tweet about swatting a girl on the back of her head to reset her brain was in fact inappropriate, insulting to women, and offensive because it appears to encourage the physical abuse of a female. In all the circumstances of this case I substitute the termination with a three day unpaid suspension.

The full decision in this case is 45 pages long (218 paragraphs). We recommend reading it for the full picture of the matter by clicking on the link above however, the following provides our summary of key aspects of the decision.
Read More...

Strike One, You’re Out! Ontario Arbitrator Rules Against Social Media Bully

facebook
An arbitrator in Ontario recently dealt with the termination of a crane operator. He had been fired by the company for posts that he made on his Facebook page concerning a fellow employee. (United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445) Read More...

Arbitrator rules grievor has no blanket right to claim anonymity

anonymous
In October 2013, an arbitrator rejected a union argument that publication of individuals' names in an arbitral award was possible only with their consent. In Sunrise Poultry Processors Ltd. v. United Food & Commercial Workers, Local 1518, 2013 CanLII 70673, the arbitrator held that disclosure was favoured as a general rule and that no justification had been provided to depart from that general rule on the facts before him. The grievor's offence was a disciplinary one and he had provided no specific circumstances to distinguish himself from any other person in a similar situation. The arbitrator held that a blanket approach to the issue of party anonymity was an inappropriate framework for balancing the interests of privacy with the open court principle in the context of labour arbitration proceedings.

In May 2014, the Labour Relations Board affirmed the arbitration decision in
Sunrise Poultry Processors Ltd v United Food and Commercial Workers International Union, Local 1518, 2014 CanLII 27506. The Board found that the arbitrator's decision was consistent both with the requirements of the BC Personal Information Protection Act and with sound labour relations policy. It agreed that the discretionary, case-by-case approach, rather than the blanket approach advocated by the union, should be taken to the question in the labour arbitration context. Read More...

Threatening Facebook Post Provides Grounds for Dismissal

facebook
In the recent decision of CEP, Local 64 v Corner Brook Pulp and Paper Limited, 2013 CanLII 87573, a Newfoundland arbitrator found that comments posted on an employee's Facebook page constituted sufficient grounds for dismissal. Read More...

No Damages Awarded For Unforeseeable Workplace Assault, But Employer Ordered To Rewrite Harassment Policy

assault
The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held in Shaw Pipe Protection Limited v Construction and General Workers' Local Union No 180, 2013 CanLII 94439 (SK LA). However, the company's harassment policy was deficient and needed to be rewritten. Read More...

Employee Privacy Breaches – Do They Warrant Discipline?

privacy
In 2012 the Ontario Court of Appeal first established the tort of intrusion upon seclusion to Canadian law in Jones v Tsige. Apart from the obvious impact of this case on those who are the victims of a privacy breach, the case has raised interesting questions in the field of labour and employment law. Namely, it places strong pressure on an employer to ensure prompt and sufficient discipline against employees who breach privacy rules in an effort to mitigate potential tort claims. The salient issue is how this new source of liability weighs against traditional labour and employment law concerning discipline. In other words, when does an employee's breach of a rule merit discipline and what discipline is warranted? While most cases thus far are in a labour context, these same general themes could be equally applied to non-unionized employees. Read More...

Keep Your Facebook Comments To Yourself…Or Better Yet, Don’t Put Them Out There At All!

facebook
In USWA, Loc. 9548 and Tenaris Algoma Tubes Inc., the most serious aggravating factor . . . is the nature of the comments. They were vicious and humiliating. The company has characterized the posts as threatening. It would certainly be reasonable for a woman reading such an interchange between male co-workers to feel threatened. The grievor suggested that X should be sexually assaulted. He must have anticipated that she would see the posts or hear about them because his Facebook 'friends' included co-workers. He also, apparently, had not used any privacy settings since Mr. Kmpotich and Ms. Amato could read them. He did not delete his comments as soon as he made them but left them up for 10 hours. Read More...

Avoiding Blurred Lines Between Temporary Workers And Employees

tempworker
Where agency workers are brought in for temporary assignments, a question may arise in unionized workplaces whether the temporary workers are employees of the company, or rather employees of the employment agency. If the agency workers are found to be employees of the company that has brought in the temporary workers, then the workers may be found within the scope of the applicable collective agreement between the company and the union. Read More...

Alberta Court Of Appeal Considers The Duty To Accommodate Probationary Employees

mentaldisability
In reasons released on May 6, 2014, the Alberta Court of Appeal dismissed an appeal by the Telecommunications Workers Union in respect of an unsuccessful judicial review application to question a labour arbitrator award. The Arbitrator had determined that TELUS Communications Inc. had no duty to accommodate a probationary employee who failed to raise his disability (which was not readily apparent) in an assertive way until days before the end of his probationary period, at which point he was terminated. The Arbitrator reasoned that the Union had to establish actual or constructive knowledge of the Grievor's disability as part of its prima facie case in accordance with the Alberta Court of Queen's Bench decision Burgess v Stephen W Huk Professional Corporation, 2010 ABQB 424. The Arbitrator also based her decision on the alternative basis that TELUS could not have accommodated the grievor without undue hardship given unrefuted medical evidence that no accommodation could be offered which would enable the grievor to perform the call center role for which he was hired. Read More...

Termination The Only Acceptable Outcome For Employee Who Calls In Sick In Order To Play Baseball

baseball
In reasons released June 19, 2014, the Alberta Court of Appeal upheld a lower Court decision quashing labour arbitration award (Telus Communications Inc v Telecommunications Workers Union, 2014 ABCA 199). The case involved an employee of TELUS Communications Inc. who had requested a day off work to play in a softball tournament (which was denied) only to call in sick on the day in question. Suspicious that he was not actually sick, the Grievor's manager had attended the ball diamonds where he witnessed the Grievor playing baseball. When confronted, the Grievor stated that he was suffering from a severe case of diarrhea on the day in question and was not playing baseball. The Grievor later admitted to being at the baseball diamonds when confronted with the fact that someone had seen him there; however he stated that he was only watching. The Grievor subsequently admitted to playing, but minimized his involvement on the basis that he was "only pitching". TELUS terminated the Grievor for cause.

The Arbitrator reinstated the Grievor and substituted a one-month suspension for termination. According to the Arbitrator, TELUS had no direct evidence that the Grievor was not sick as he claimed and that his explanation regarding his absence was "plausible".

TELUS sought judicial review of the Arbitrator's award. It argued that the Arbitrator had failed to consider the overall weight of its circumstantial evidence, which pointed, irrefutably to the fact that the Grievor had lied about being sick. It also argued that the Arbitrator's award suggested an employee could be too sick to work yet sufficiently well to play baseball, and unreasonable interpretation of the sick leave provisions contained in the party's collective agreement. TELUS argued that termination was the only reasonable outcome on the evidence and, as such, the Arbitrator's award should be quashed without remitting the matter for rehearing.

The Alberta Court of Appeal determined that the Arbitrator had acted unreasonably in requiring TELUS to lead direct evidence establishing that the Grievor was not sick, an impossible standard. The Arbitrator was required to weigh the circumstantial evidence against the Grievor's testimony in order to determine whether the Grievor had lied about being sick. As the overwhelming weight of the evidence pointed to the fact that the Grievor had lied about being sick, the Arbitrator's conclusion otherwise was unreasonable. Having quashed the award, the Court declined to remit the matter back to Arbitrator for hearing. The only reasonable inference to be drawn on the evidence was that the Grievor had lied about being sick, then repeatedly lied to his employer after the fact, and at Arbitration. The Court concluded that termination was the only reasonable outcome on the evidence and that remitting the matter to arbitration would be pointless.
Read More...

Unionized Employee Cannot Seek Judicial Review of Labour Arbitrator’s Decision Without Union

dismissed
The Ontario Divisional Court recently quashed an application for judicial review brought by an individual employee seeking to overturn an arbitrator's decision denying his discharge grievance. The Court ruled in Ali v United Food and Commercial Workers Canada that an individual employee lacks standing to apply for the review of an arbitration award. Subject to limited exceptions, only the union had the right to commence, withdraw or challenge arbitration proceedings. Read More...

No Anonymity For Grievors

pub ban
In Sunrise Poultry Processors Ltd. v. United Food and Commercial Workers, Local 1518, the BC Labour Relations Board has upheld BC Arbitrator Stan Lanyon's decision that the names of grievors and witnesses should, as a general rule, be published in labour arbitration awards. Read More...

Taking A Page From The Globe And Mail: How To Enforce Confidentiality Of Settlements

confidential
When employers negotiate a settlement with a union providing for payment to an employee, there is often a concern with respect to confidentiality of the settlement. In most cases, the employer wants the settlement terms to be confidential. One of the reasons for a confidentiality agreement is to ensure that the settlement does not encourage claims by other employees who may think that the employer will make substantial payments just to get rid of a grievance. Enforcement of the confidentiality provisions in settlements is critical; there's not much point in having a confidentiality provision if there is no effective way to enforce it. The arbitration decision in Globe and Mail v. Jan Wong shows that there is a very effective way to keep settlements with a union confidential. Read More...

Employee Discount Policies: Zero Tolerance

discount
A recent Nova Scotia Labour Board decision considered whether an employee with 11 years' service was dismissed for cause when he used an employee discount policy for a "friend", contrary to company policy. The Board found a violation and that dismissal for cause was the correct course of action. If your company provides employee discount policies to employees, this is a decision you may want to learn more about. Read More...

Have A Workplace Harassment Policy? Why It’s Not Enough

sex harass
Harassment policies are a common aspect of workplace administration for most human resource practitioners. However, establishing a harassment policy is only part of what employers should do to address harassment in the workplace. The key to protecting against potentially costly claims for harassment is to implement and follow proper policies and investigation procedures. Read More...

Correctness Is "fashionable," but In a bad way: Supreme Court of Canada broadens scope for administrative tribunals.

arb10
The Supreme Court of Canada has released what may be the most important administrative law appeal of the year in McLean v. British Columbia (Securities Commission), reaffirming the deference that administrative tribunals are owed when interpreting their "home" or closely related statutes and expressly seeking – as always, it seems – to foster greater "predictability and clarity". Read More...

Supreme Court of Canada rules there is no breach of statutory privacy to post photos of workers during strikes.

video camera
“During a lawful strike lasting 305 days, both the Union and the employer video‑taped and photographed individuals crossing the picketline. The Union posted signs in the area of the picketing stating that images of persons crossing the picketline might be placed on a website. Several individuals who were recorded crossing the picketline filed complaints with the Alberta Information and Privacy Commissioner. The Commissioner appointed an Adjudicator to decide whether the Union had contravened the Personal Information Protection Act(PIPA). The Adjudicator concluded that the Union’s collection, use and disclosure of the information was not authorized by PIPA. On judicial review, PIPA was found to violate the Union’s rights under s. 2(b) of theCharter. The Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA. ” In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, the S.C.C. (9:0) held that the appeal is "substantially dismissed.” Read More...

Supreme Court rules alcohol & drug testing OK only if dangerous workplace/in collective agreement.

In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, the Union brought a grievance challenging the mandatory random alcohol testing aspect of a policy on alcohol and drug use that the employer, Irving, unilaterally implemented at a paper mill. Under the policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyser testing over the course of a year. A positive test for alcohol attracted significant disciplinary action, including dismissal. The arbitration board allowed the grievance. Weighing the employer’s interest in random alcohol testing as a workplace safety measure against the harm to the privacy interests of the employees, a majority of the board concluded that the random testing policy was unjustified because of the absence of evidence of an existing problem with alcohol use in the workplace. On judicial review, the board’s award was set aside as unreasonable. The New Brunswick Court of Appeal dismissed the appeal. The S.C.C. allowed the appeal. Read More...

Court Rules on Adequacy of Tribunal Decisions

In Construction Labour Relations v. Driver Iron Inc., the Supreme Court of Canada has ruled that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. Read More...

Arbitrators have wide leeway in applying legal doctrines

In Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, the Supreme Court granted an appeal from the Manitoba Court of Appeal, determining that an arbitral award applying common law or equitable remedies deserves deference, and should be reviewed on a standard of reasonableness rather than correctness. Read More...

Bad faith dismissal

Court confirms arbitrator's remedial authority to award damages for lost income, mental distress and pain and suffering, as well as punitive damages. Read More...

Probationary Employees

In face of prima facie complaint of discrimination, employer has positive obligation to hire probationary employee or provide reasons for failure to do so. Read More...
/