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Labour Relations Board Cases

Grocery Store Employee Bears Cost of Refusing to Work on Sunday

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An interesting decision was released in the retail sector which discusses a retail employee’s statutory right to refuse to work on a Sunday under the Employment Standards Act, 2000 (“ESA”). At issue was a new company schedule that would have forced an employee to work additional hours on a Sunday. The employee not only argued that he could refuse to work on Sunday (as was his right), but that the employer had to reschedule him for another shift so that he would not suffer any weekly loss of hours and pay. The Ontario Labour Relations Board (“OLRB”) found that the company did not have to reschedule the employee. The OLRB’s decision meant that the employee could not use the right to refuse work as a means to create his preferred shift schedule with no loss of pay. Read More...

SK Court of Appeal rules Labour Relations Board breached procedural fairness by consulting a website to support its conclusion without asking the parties for further submissions

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The Court of Queen’s Bench dismissed two applications to quash a decision of the Saskatchewan Labour Relations Board. The two appellants argued that the board’s decision breached procedural fairness falling into two categories: the board conducted ex parte research following its oral decision; and the board improperly heard the parties because one member was not physically present when the board adjourned to deliberate and was without materials that had been filed during oral argument. The reasonableness of the board’s decision was also questioned by the appellants. A grocery store changed operation with the former and latter being covered by different certification orders. The unions applied to the see who would represent the employees of the store. The oral hearing was adjourned to hear a final witness. The board found that s. 37 of The Trade Union Act applied such that the new operator of the store was the successor. The Queen’s Bench concluded that the board’s review of one of the union’s websites did not result in any change to its approach although it was a breach. Read More...

Egg Films Epilogue – 5 Key Implications Of NS Union Certification Based On "Industry" Dependence In Egg Films Inc. v. Nova Scotia (Labour Board)

eggfilms
Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence on the employer's "industry"– even when those "employees" may have worked for the employer for a single day.

The Supreme Court of Canada's (SCC) September 2014 refusal to hear the employer's appeal of this decision means the certification stands, and Egg Films Inc. – and all NS employers – must live with its significant impact.

Here's the story – and 5 key implications of the certification decision to NS employers.
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Actions Speak Louder Than Words: Labour Board Holds That Employers Must Demonstrate By Conduct That They Do Not Condone Employee Misconduct

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Generally, the Ontario Employment Standards Act ("ESA") requires employers to provide employees with notice of termination or termination pay in lieu of notice. However, a dismissed employee is disentitled to these minimum notice requirements if the employer can prove, on a balance of probabilities, that the employee is guilty of wilful misconduct that is not trivial and was not condoned by the employer.

While employers often focus on the severity of the employee's misconduct or on whether the employee possessed the requisite intent, Shaker v Leon's Furniture Limited ("Leons") and Cancore Building Services Ltd. v William Merlos & Director of Employment Standards ("Cancore"), two recent decisions of the Ontario Labour Relations Board ("OLRB"), make clear that in order to successfully rely on the disentitlement provision in the ESA, an employer must have cogent evidence that it did not condone the employee's wilful misconduct.
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