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

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

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

STATE OF THE UNION: A LABOUR ARBITRATION UPDATE

Presented by:

Gavin A. Marshall Ritu Mahil John McConchie

April 15, 2014

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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%
  • f 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
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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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
  • ut its functions or direct workforce
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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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
  • f intrusion
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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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.

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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General Motors and CAW, (2012) 237 LAC (4th) 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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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General Motors and CAW, (2012) 237 LAC (4th) 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

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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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
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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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West Fraser Mills Ltd. (Skeena Sawmill Division)

  • v. USWA Local 1-1937, 2012 BCCA 50

Implications for Employers To terminate for non-culpable absenteeism,

  • Implement policy without consideration of plant

closure or other circumstance that would trigger severance pay;

  • Must have medical evidence there is no

reasonable likelihood of employee being fit for work in the future.

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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Ellis Don and Labourers Union [2012] OLRB 4766

  • Admissibility of surveillance evidence in

Ontario

  • When is video surveillance admissible?
  • Case demonstrates difference of

approach between Ontario and British Columbia

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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Ellis Don and Labourers Union [2012] OLRB 4766

  • In past, BC arbitrators have been more

restricted

  • Was it a reasonable intrusion
  • Were there other means?
  • Contrast Ontario, where developing test

is simple “relevance”

  • Balance of truth finding vs. privacy

interest

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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Rubin v. Ross, 2013 SKCA 21; leave to appeal to SCC refused [2013] SCCA 181

  • Union member filed grievance accusing Dr. Rubin of

harassment and failing to prevent harassment

  • Preparing for arbitration, union sought witnesses by

publishing full text of grievor’s allegations against

  • Dr. Rubin on 8 public bulletin boards at the hospital. Then

mailed grievance report to 1400 members and published

  • n union website.
  • Dr. Rubin commenced action for defamation
  • Union argued statements not defamatory because made in

labour relations context

  • SKCA: article published 3 times to wide audience would

lead reasonable person to believe allegations were true

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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Rubin v. Ross, 2013 SKCA 21; leave to appeal to SCC refused [2013] SCCA 181

Implications for Employers

  • Statements must be made on a proper
  • ccasion, in a proper manner and to

appropriate parties

  • Care must be taken that only those with

a legally recognized interest have access to information

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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Zellers and Target Canada, BCLRB No. B243/2012

  • Successorship case
  • 30 Zellers stores locations in BC bought

by Target

  • Brentwood Mall Zellers store test case
  • Does the Zellers Union agreement

apply?

  • Answer: No. Mere purchase of assets,

not a “going concern”

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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British Columbia Automobile Association and COPE, Local 378, BCLRB No. 28/2013

  • After decertification, employer offered

employees $500 in exchange for agreement to employment contract

  • Union filed unfair labour practice

complaint at LRB

  • Complaint dismissed. Payment made

for bona fide business reasons

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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British Columbia Automobile Association and COPE, Local 378, BCLRB No. 28/2013

Implications for Employers

  • LRB and arbitrators will balance interests

in determining whether video surveillance was reasonable

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800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com

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QUESTIONS?