STATE OF THE UNION: A LABOUR ARBITRATION UPDATE Presented by: Gavin - PowerPoint PPT Presentation

STATE OF THE UNION: A LABOUR ARBITRATION UPDATE Presented by: Gavin A. Marshall Ritu Mahil John McConchie April 15, 2014 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

CEP, Local 30 v. Irving Pulp & Paper Ltd., 2013 (SCC) 34  Random drug testing  Employer chose names randomly from its 334 employees by computer  During 12 month period, computer chose 10% of names  Safety sensitive positions were subject to “random” / i.e.., “unannounced” testing on a “without cause” basis  Only the “without cause / random” testing aspect was grieved  Arbitration panel upheld the grievance 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 2 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

CEP, Local 30 v. Irving Pulp & Paper Ltd., 2013 (SCC) 34  Case went to SCC regarding legality of “random” testing in safety sensitive positions  Issue involved balancing individual privacy rights vs. legitimate management rights  HELD: random unannounced testing was an unreasonable intrusion  Employer had to show a “demonstrated problem” with alcohol use to implement testing  Otherwise, the Employer would have to negotiate the policy with the Union 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Cambridge Memorial Hospital and ONA, [2012] OLAA 596, 227 LAC (4th) 213 (Jesin) Trafficking cocaine charges did not warrant suspension  Criminal charges insufficient to warrant unpaid suspension  Employer had no independent evidence of Grievor’s guilt or innocence  Onus on the Employer to prove that it would be detrimental to retain Employee awaiting trial 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 4 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Cambridge Memorial Hospital and ONA, [2012] OLAA 596, 227 LAC (4th) 213 (Jesin) Implications for Employers: Factors that support termination for off-duty conduct: Conduct harms the Company’s reputation or product   Behaviour renders employee unable to perform duties satisfactorily  Behaviour leads to refusal, reluctance of other employees to work with him/her  Guilty of serious breach of Criminal Code injurious to the general reputation of the Company and employees  Conduct places difficulty for Company to properly carry out its functions or direct workforce 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 5 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Suncor Energy Inc. v. UNIFOR Local 707A  Policy grievance regarding unilateral implementation of “random” drug testing policy  This case dealt with drug abuse in the Fort McMurray area oil sands  23 day hearing including 4 experts with complex medical evidence  Three workplace deaths in which alcohol played a part 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 6 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Suncor Energy Inc. v. UNIFOR Local 707A  Union argued that there was no safety concern  Also that, if there was, random testing would not address it  Also, less intrusive means existed to address hazards of substance use  Employer cited an “out of control” drug culture in Fort McMurray  Also advanced significant concrete evidence of drug supply into Fort McMurray (via RCMP)  Drugs vs. alcohol testing creates different level of intrusion 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 7 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

CUPE, Local 1897 and Turtle River School Division, [2013] MGAD 3 (Peltz)  Threat of violence was just cause  Lack of remorse militated against reinstatement  Employer’s zero tolerance policy for violence not determinative  Employers not required to exhaust progressive discipline where violence is involved 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 8 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

CUPE, Local 1897 and Turtle River School Division, [2013] MGAD 3 (Peltz) Implications for Employers:  Arbitral intolerance for violence in the workplace  Post discharge evidence admissible where relevant to credibility of expression of remorse at time of firing  Do not have to follow progressive discipline where threat to safety of employees involved 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 9 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Husband Food Ventures Ltd. and UFCW, Local 1518 , [2013] BCCAAA 91  Anonymity of Grievor  This case addresses a small but interesting point that is useful for employers  During grievance employee sought to have name deleted from the award  Sometimes requested if the evidence is awkward or embarrassing 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 10 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Husband Food Ventures Ltd. and UFCW, Local 1518 , [2013] BCCAAA 91  Held: long standing custom to publish awards with names  No “special circumstances” existed in this case  Balancing of semi-public forum vs. PIPA privacy interest  Where evidence will result in a stigma, employee may drop case 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 11 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

UFCW, Local 1518 and Husband Food Ventures Ltd. (IGA Store No. 11) , [2013] BCCAAA 5, 229 LAC (4th) 231 (Sanderson, QC)  Grievor said in casual conversation she would shoot herself or “better yet” someone else if she did not get job applied for  Threat not taken seriously, but others heard  7 years seniority and clean discipline record  Arbitrator: facts must be considered in context to determine appropriate response  Threat not seriously made and no capacity to carry it out  Discharge excessive. Substituted over one year suspension + anger management program. 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 12 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

UFCW, Local 1518 and Husband Food Ventures Ltd. (IGA Store No. 11) , [2013] BCCAAA 5, 229 LAC (4th) 231 (Sanderson, QC) Implication for Employers:  Not every threat of violence will justify termination  Employers must consider whether threat is real, taken seriously by other employees, and other factors 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 13 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Swiss Chalet and UFCW, Local 206  Cell phone cameras at work  Grievor here felt singled out for discipline  As a result he took pictures of the kitchen  5 day suspension reduced to 3 days  Major reputation risk in the food service industry 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 14 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Swiss Chalet and UFCW, Local 206  Photos of the kitchen is a major prohibition in most workplaces  Particularly a training problem with new and young workers  Technology savvy younger workers increase the risk 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 15 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Telus Communications Inc. v. TWU, 2013 ABQB 355  Employee called in sick but played in slo-pitch tournament  Terminated for abuse of sick leave  Arbitrator reinstated saying employee could be too sick to work but not too sick to play  Judicial review. Court rejected arbitrator’s decision as defying logic and common sense 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 16 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

Telus Communications Inc. v. TWU, 2013 ABQB 355  Abuse of sick leave serious offence  Paid sick leave operates on honour system  Employers should be careful to determine whether off duty conduct incompatible with alleged inability to work 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 17 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

General Motors and CAW , (2012) 237 LAC (4 th ) 317  Failure to provide medical and deemed termination clause  Case dealt with failure to prove that absence was legitimate  Long service employee with a long history of absences  Also a history of failing to adequately communicate regarding medical absences 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 18 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

General Motors and CAW , (2012) 237 LAC (4 th ) 317  Employer terminated based on clear language in an AWOL clause “deemed termination”  Grievance upheld: Lengthy suspension substituted for termination  Arbitrator discretion often exercised regarding “black and white” clauses 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 19 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

West Fraser Mills Ltd. (Skeena Sawmill Division) v. USWA Local 1-1937 , 2012 BCCA 50  Employer terminated a number of employees for non-culpable absenteeism and failing to supply medical information  Employer also discriminated in part to avoid payment of severance on plant closure  Arbitrator: grievors were entitled to severance pay  BCAA: arbitrator’s award was reasonable 800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 20 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com