Thoughts from a Management Lawyer

Federal Anti-Scab Law Defeated On

Federal Anti-Scab Law Defeated

On May 4, 2003 I wrote about Bill C-328 (the federal anti-scab legislation). The Bill was recently defeated and the Canadian Labour Congress has expressed its "deep disappointment". You can view some of the speeches. This has been an ongoing debate among unions and employers. To what degree, if any, should employers be precluded from operating their business during a lawful strike or lockout? Quebec has the most restrictive legislation which, for a brief time during the reign of the NDP saw the light of day in Ontario. The Ontario legislation prevents employers from using "professional strike breakers" during a lawful strike.

Labour Board Decision Upheld on

Labour Board Decision Upheld on Judicial Review

The Ontario Superior Court (Divisional Court) in Coca-Cola Bottling Company has recently upheld the decision of the Ontario Labour Relations Board dismissing the CAW's certification and termination applications.

In this case, Coke announced that it would open a new production, warehouse, distribution, equipment service, fleet maintenance shop and sales centre operation in Brampton, Ontario. Coke projected that the new facility would open in the spring/summer 2001. As a result, numerous existing Coke facilities would be impacted and/or closed. Some of the facilities were represented by the UFCW Local 175 while others were represented by the CAW. Both unions "staked a claim" to represent the employees in the bargaining unit in the new sales centre operation in Brampton, Ontario.

Top 100 Employers Maclean's released

Top 100 Employers

Maclean's released its Top 100 Employers issue. I was quoted in this article on the issue of company responses to changing demographics (ie. an aging workforce), a subject that I have spoken on a fair amount lately. The "Top 100" chart in PDF format is also available.

Yet Another Weber Case The

Yet Another Weber Case

The Court of Appeal today released another case considering the Supreme Court of Canada case of Weber v. Ontario Hydro. The question is: Can a unionized employee pursue a remedy in the courts against his or her employer rather than under the collective agreement?

The case is Gaignard v. The Attorney General for Canada The Court upheld the decision of the motions court judge dismissing the claim on the Weber principles. In this case, the complaint was made by employees "against their employer and its executive team and concerns the way the workplace was run by management. The facts centre on an alleged covert operation to stop contraband entering Kingston Penitentiary which employed methods that the [employees] say poisoned their work environment and caused them physical and emotional harm." The court emphasized the need for arbitration to provide an effective remedy to the complaint and concluded, on the Weber analysis, that an arbitrator had the exclusive jurisdiction to deal with the dispute.

Arbitrator Reinstates an Employee Guilty

Arbitrator Reinstates an Employee Guilty of Theft

Maybe it's just me and my biases, but I have trouble with the line of arbitral authority that reinstates a proven thief. If you go back to first principles, just cause is a fundamental breach by the employee of his or her obligations to the employer under the contract of employment. I can't think of a more fundamental breach of the employment relationship than theft.

In Bombardier Aerospace (July 14, 2003, H.D. Brown) an employee stole property from the employer, was charged and ultimately convicted of theft under $500. The employee was terminated. The arbitrator found that the employer had met the heavy onus of proving theft. The arbitrator said:

"The issue is whether that act by itself so destroyed the employment relationship with the Company that the most severe penalty of termination in the application of progressive discipline should be applied. The onus is on the Grievor to satisfy the Arbitrator that there are substantial reasons to moderate this penalty."

The arbitrator went on to consider whether there were any mitigating factors present that would justify the reduction of the penalty. The arbitrator stated as follows:

"While the Grievor committed an act of dishonesty, I am satisfied from his demeanour and testimony at the hearing that he is essentially an honest person and has with this act of theft which I have found on the evidence to be an isolated incident over his long period of employment with the Company, that the probability of a repeated incident of dishonesty is unlikely and the Grievor can be rehabilitated as a trustworthy employee in the future."

The grievor had 24 years service with a clean disciplinary record at the time of the termination

I'm not sure whether a company would ever believe that a proven thief can be rehabilitated or the the trust that rests at the foundation of the employment relationship could be restored. Lingering questions will always be present. Given this line of cases, maybe employer counsel would be wise to argue that damages should be awarded in lieu of reinstatement.