The Ontario Court of Appeal affirmed an Ontario Supreme Court decision that held an employer in contempt of an arbitration award. The Court confirmed that in order for there to be a finding of contempt the misconduct alleged must be established beyond a reasonable doubt and the order or agreement sought to be enforced must be clear and unequivocal. The employer, in this case, implemented the award by going beyond its terms. The employer argued that the agreement was ambiguous. The Court of Appeal disagreed.
Proposed Amendments to the Criminal Code Would Impact Employers
The Minister of Justice and Attorney General of Canada, the Honourable Martin Cauchon, introduced a Bill that would amend the Criminal Code. According to a press release the amendments would "impose a legal duty on employers and those who direct work to take reasonable measures to protect employee and public safety. If this duty is carelessly disregarded and bodily harm or death results, an organization could be charged with criminal negligence." In a backgrounder the governments states that "the proposed Criminal Code amendments build on these changes [to the Canada Labour Code] by imposing a legal duty on employers and those who direct work to take reasonable measures to protect employee and public safety. If this duty is wantonly or recklessly disregarded and bodily harm or death results, an organization could be charged with criminal negligence."
The Freedom of Association Committee of the International Labour Organization has held that a 2000 amendment to the Labour Relations Act violates Convention No. 87, the Freedom of Association and Protection of the Right to Organize Convention, 1948. The Labour Relations Amendment Act, 2000 (Bill 139) contained an provision that required all unionized employers to display a poster an notice in the workplace describing the process to terminate trade union's bargaining rights. The Ontario Federation of Labour and the Canadian Labour Congress filed a complaint with the ILO and argued that the amendments were inconsistent with the government's obligations under international law to encourage, promote and protect the right of employees to bargain collectively. The case can be found here (click Canada and Decision 2182). What does this mean for you? Will the government repeal the legislation as the Committee recommends? Will they amend the Act by requiring non-unionized employers to post material informing their employees of their right to join a union (which would have strengthened the governments argument according to the Committee)? Will the government do nothing? With an election on the horizon I know where my money is.
There is conflicting caselaw on the issue of whether an employee who participates in a lawful strike is entitled to be paid for public holidays that occur during the strike. The criteria for determining whether an employee is to be paid for public holidays, in Ontario at least, is whether the employee works his or her regular scheduled shift before the public holiday and his or her regular scheduled shift after the public holiday. In the context of a lawful strike, the issue is whether the "regular scheduled shift" is the one immediately before the strike commenced or the last one before the public holiday on which the employee was scheduled (i.e. even though that day is during the the strike). The reason for the existence of two lines of cases stems from whether the adjudicator believes that the strike suspends the right to schedule the employees.
If the adjudicator ascribes to the view that the right to strike suspends the employer's ability to schedule then he or she will likely find that the employee's last "regularly scheduled shift" is the one before the strike. Such cases include Re Olsonite Manufacturing Ltd. (1977), 14 L.A.C. (2d) 234 ("O'Shea), Re General Refractories Co. of Canada (1985), 20 L.A.C. (3d) 380 (Davis) and Fortinos Supermarkets Limited (February 21, 2003, Petryshen). If, on the other hand, the adjudicator believes that the employer's ability to schedule employees is not suspended by the strike, then he or she will likely find that the employee's last "regularly scheduled shift" is the one immediately before the holiday on which the employee was on the schedule. Such cases include Re 3M Canada Inc. (1982), 4 L.A.C. (3d) 420 (M.G. Picher) and Abebe v. Distinctive Designs Furniture Inc. (December 9, 2002, McKellar). The latter case is from the Ontario Labour Relations Board.
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