Arbitration

Clarification To Law Of Employee Surveillance

Tuesday, March 15, 2022 -

Elevator law, according to one colleague and despite our best attempts to intervene, has its ups and downs. It has a unique set of characteristics, including its own elevator union (the International Union of Elevator Constructors (IUEC)), industry- specific collective agreements and a workforce of largely independent technicians.

Technicians are often required to visit multiple worksites, work without direct supervision and manage their own time. In some cases, technicians are provided with a company phone which can track time, work completion and location. That tracking has been the source of significant tension and resulted in clarification to the law of employee surveillance.

In January 2022, the decision of Arbitrator Koml Kandola in KONE Inc. v. IUEC, Local 82 (Installation Back Reporting Tool (IBRT) 2.0 Grievance) [2022] B.C.C.A.A.A. No. 4 was published. This case revolved around a challenge to the employer's practice of collecting GPS information about employees at work, through their mobile phones. The decision will be relevant to any organization that uses location monitoring to manage the attendance of their workforce. Read More...

Arbitrator upholds COVID-19 testing policy

Monday, September 20, 2021 -

In [an] . . . arbitral decision . . ., the Christian Labour Association of Canada (the "CLAC") challenged a COVID-19 employee testing policy of the employer, Caressant Care Nursing & Retirement Homes (the "Employer"). The arbitrator dismissed the grievance. Read More...

Arbitrator Upholds Mandatory Employee COVID Testing

Wednesday, January 13, 2021 -

In Christian Labour Association of Canada v. Caressant Care Nursing & Retirement Homes (D. Randall), a union filed a group grievance on behalf of a number of its members working at an Ontario retirement home to challenge the reasonableness of a policy imposing bi-weekly COVID testing on all staff. In a December 9, 2020 decision, the arbitrator dismissed the grievance on the basis that the policy is reasonable when the privacy intrusion is weighed against the objective of preventing the spread of COVID in the retirement home. Read More...

Layoff Out Of Seniority Order Not Permitted Where Teacher Meets OCT Qualification

Monday, March 30, 2020 -

In Keewatin-Patricia District School Board v. Ontario Secondary School Teachers' Federation, 2019 ONSC 7102, the Ontario Divisional Court dismissed an application for judicial review of Arbitrator Michael Lynk's decision upholding the grievance of a teacher alleging that she was laid off out of seniority order. The court rejected the Keewatin-Patricia District School Board's (the Board) position that the arbitration award was unreasonable because it misapprehended the Board's obligation to provide the "best possible educational program" as stipulated in subsection 19(1) of Regulation 298 under the Education Act. Read More...

Landmark Decision From The Supreme Court: New Framework For Judicial Review

Friday, February 07, 2020 -

On December 19, 2019, the Supreme Court of Canada (the Court) released a landmark ruling in a trilogy of cases intended to bring clarity to the judicial review of administrative decisions. In Canada (Minister of Citizenship and Immigration) v. Vavilov, the Court adopted a revised framework for determining when the applicable standard of review is "reasonableness" or "correctness". The Court also provided additional guidance on the proper application of the reasonableness standard, emphasizing the importance for administrative adjudicators to provide rational and coherent justifications for their decisions. This new approach was then applied in two appeals heard together as Bell Canada v. Canada (Attorney General). Read More...

Can My Employer Dismiss Me Due To My Unseen Disability?

Thursday, November 07, 2019 -

Employers should investigate further before immediately dismissing employees for violating workplace drug and alcohol policies. An employee's diagnosis of substance dependence would be considered a disability, which is a protected ground under the Canadian Human Rights Act (CHRA) for federally regulated employers. Read More...

What Can You Ask For In A Medical Certificate?

Friday, October 18, 2019 -

Many employers have often had the experience of receiving a vague doctor's note from an employee that reads something along the lines of, "this individual is unable to work for X weeks". Employers are left wondering: Why? Can I be sure this is legitimate? Is the employee likely to return after X weeks? Will the employee need anything when she/he returns?

What information is an employer entitled to? How far can an employer push back on a vague note such as this? Read More...

Safety v. Privacy: Finding The Balance With Video Surveillance

Tuesday, March 19, 2019 -

Arbitrator Ken Saunders' recent decision in Lafarge Canada Inc. v. Teamsters, Local Union No. 213 (In-Cab Camera Grievance), [2018] B.C.C.A.A.A. No. 51 (Saunders) is instructive for employers considering the use of video surveillance in their workplace. Read More...

Not All Opinions Are Fit For Sharing

Friday, February 01, 2019 -

In an era where opinions sometimes are preferred to information, it seems fit to recall that any comment by an employee on his employment relationship may have consequences. Indeed, employees remain subject to a duty of loyalty to their employer and criticism of the latter may amount to a wrongful misconduct which may justify disciplinary action.

In this regard, the case of Syndicat des chargées et chargés de cours de l'Université de Sherbrooke (SCCCUS) et Université de Sherbrooke (Denis Bernard) is interesting since it highlights that criticism may go beyond mere opinion and thus constitutes a lack of professionalism and loyalty.

The balance between freedom of expression and the duty of loyalty is particularly important in the context of social media. The case of Syndicat démocratique des salarié(e)s de la résidence St-Jude et La Résidence St-Jude (9210-9719 Québec inc.) (Vickyan Tardif) 2018 QCTA 593 concludes that comments published on social media become de facto public and that employees should therefore reflect on the consequences of exposing their dirty laundry in public. Read More...

"Sex, Lies And Videotape" --Good Evidence?

Tuesday, January 15, 2019 -

An employer installs video surveillance in his office with the intent to catch any employees rifling through his private file cabinet. What is caught on tape is two employees doing something entirely different. Can the employer use this footage as evidence to terminate the two employees for just cause? An arbitration board's interim decision in Vernon Professional Firefighter's Association, IAFF, Local 1517 and The Corporation of the City of Vernon says yes. Read More...

Pornography In The Workplace: Trends And Developments

Wednesday, August 29, 2018 -

In a 2013 Forbes article, Cheryl Conner noted that 25% of working adults admit to looking at pornography on a computer at work. Also interesting to note is that 70% of all online pornography access occurs between 9:00 a.m. and 5:00 p.m. Older statistics indicate that two-thirds of human resources professionals have discovered pornography on employee computers, and that 28% of surveyed workers had downloaded sexually explicit content from the web while on the job.

Against this backdrop, employers face an increased concern over the propriety of employees' digital conduct at work. In the school context, especially, it is essential that student safety is protected and the school's reputation is upheld.

Labour arbitrators in Canada have addressed these issues in the context of employees accessing pornography on work-issued computers, during work hours, and/or with students as the subjects of the images. While the principles in the decisions are similar, the outcomes have varied depending on a range of circumstances. Read More...

Employee Required To Produce His Medical File To Employer In Accommodation Grievance

Monday, April 16, 2018 -

After an employee's union grieved that the employer had failed to return him to work "notwithstanding that he has provided all requested medical information", the employee has been ordered to produce much of his medical file to the employer. Read More...

BCCA Issues Guidance on the Role of Unions in the Employee Accommodation Request Process

Thursday, February 01, 2018 -

In Telus Communications Inc. v. Telecommunication Workers’ Union, 2017 BCCA 100, the BC Court of Appeal held that the Telecommunications Workers’ Union (the “Union”) did not have the right to participate in all employee requests for accommodation. An application for leave to appeal the Court of Appeal’s decision was recently dismissed by the Supreme Court of Canada, making the Court of Appeal’s decision the final word on the matter. Read More...

Alcoholic Employee Reinstated After Employer's Compassionate Approach Put In Question Seriousness Of Previous Warnings

Monday, October 23, 2017 -

There is an old, and somewhat cynical saying, that no good deed goes unpunished. While I personally disagree with that saying, one employer must believe it after a decision it received.

In the case, an adjudicator reinstated an alcoholic employee who was dismissed after he was found to be under the influence of alcohol at work. The employee had previously been disciplined for alcohol consumption, lateness/absenteeism and abandoning his shift, and on one occasion had entered into a "last chance agreement". Read More...

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

Friday, July 07, 2017 -

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

Friday, May 26, 2017 -

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?

Wednesday, April 19, 2017 -

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.

Adjudicator Upholds Termination For Breach Of Employer’s Technology Policy

Sunday, February 19, 2017 -

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

Wednesday, January 18, 2017 -

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.

Sunday, January 15, 2017 -

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

Thursday, January 12, 2017 -

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

Tuesday, December 13, 2016 -

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

Sunday, December 04, 2016 -

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

Monday, September 26, 2016 -

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

Wednesday, September 07, 2016 -

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

Sunday, September 04, 2016 -

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

Sunday, July 24, 2016 -

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

Thursday, July 21, 2016 -

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

Sunday, July 03, 2016 -

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

Thursday, June 30, 2016 -

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

Wednesday, June 15, 2016 -

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

Tuesday, April 05, 2016 -

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?

Wednesday, January 13, 2016 -

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

Monday, January 04, 2016 -

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

Thursday, October 15, 2015 -

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

Saturday, August 22, 2015 -

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

Monday, August 10, 2015 -

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

Wednesday, June 17, 2015 -

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

Tuesday, March 24, 2015 -

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?

Tuesday, February 24, 2015 -

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!

Monday, February 09, 2015 -

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

Sunday, January 25, 2015 -

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

Thursday, January 22, 2015 -

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

Saturday, November 29, 2014 -

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

Saturday, November 08, 2014 -

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

Saturday, September 27, 2014 -

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

Tuesday, June 17, 2014 -

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

Thursday, June 05, 2014 -

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

Monday, June 02, 2014 -

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.

Wednesday, March 19, 2014 -

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.

Tuesday, February 11, 2014 -

“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.

Sunday, September 15, 2013 -

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

Tuesday, April 16, 2013 -

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

Wednesday, January 11, 2012 -

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

Wednesday, December 14, 2011 -

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

Wednesday, October 19, 2011 -

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...

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