The available bulletins are:
The Ministry of Labour and other agencies have recently taken on a more proactive line as relates to the educational component of their mandate and employers are well advised to access this information to ensure that they know what their employees know.
The October 2004 issue ofCanadian Lawyer magazine has an article entitled Lawyering on the Web. The article is about how lawyers use weblogs to help them in their practices, whether it be marketing, maintaining a presence on the web, organizing information, whatever. The article has an interview with a number of Canadian lawyers who maintain weblogs including me, David Cooper whose site is PIPEDA and Canadian Privacy Law (those who read this blog know that I often refer to David's blog and view it as an excellent resource) and Sharon Reashore called Information about Legal Issues Facing Seniors in Nova Scotia which I had not previously read, but will certainly visit in future.
Congratulations to David and Sharon.
An employee was a member of the Seventh Day Adventist Church whose Sabbath made it such that he could not work the Friday afternoon shift and all Saturday shifts. A grievance was filed alleging that the employer had failed to accommodate the employees' religious beliefs in the manner in which he was scheduled for work. The employer had a rotating shift system. The case came before arbitrator J.L. McConchie in Vanderhoof Specialty Wood Products (May 27, 2004, McConchie).
The Union and the Company agreed that there were two possible means of accommodating the grievor (both would see the grievor permanently assigned to the day shift):
Option #1 - The "spreading the burden" option which would see all of the employees "taking a turn" on the afternoon shift so that the grievor could be permanently assigned to the day shift.
Option #2 - The "junior employees take the hit" option which would see the more junior employees taking the afternoon shift with the more senior employees not being required to do so.
While the employer was required to implement the accommodation, it was entitled to rely upon the employee and the union (in fact, in a number of cases, courts, board's of inquiry and arbitrators have held that the employee is required to participate and cooperate in the accommodation and will bear the consequences for failing to do so).
The Union argued that the grievor "should be accommodated by placing him on a steady dayshift, and rotating the resulting extra afternoon shift between those employees junior to the Grievor." According to the Arbitrator:
The Union also argues that basing the accommodation on seniority would lessen the possibility that the Grievor's co-workers would perceive the Grievor to be receiving preferential treatment or an unfair advantage. Therefore, the Union's proposed accommodation would cause less disruption in the workforce, maintain employee morale, and reduce the likelihood of harassment of the Grievor by resentful fellow workers.
The employer, on the other hand, while agreeing that the grievor should be accommodated by being placed on a straight day shift, argued "that the resulting extra afternoon shift should be rotated among all the employees on the shift, regardless of seniority.
The Arbitrator stated that:
An employer's duty to accommodate is not unbounded. The duty is described as being "reasonable accommodation" and "accommodation to the point of undue hardship". The list of factors to be considered in determining whether the proposed accommodation would cause an undue hardship was first set out by the Supreme Court in Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (1990), 72 D.L.R. (4th) 417, and has since been restated in numerous cases, including Air BC Ltd. and Canadian Airline Dispatchers Association (1995) 50 L.A.C. (4th) 93 (McPhillips), which sets out the list as follows:
1. interchangeability of the workforce and facilities;
2. whether the employee's job itself exacerbates the disability;
3. the extent of the disruption of a collective agreement;
4. the effect on the rights of other employees;
5. the effect on the morale of other employees;
6. costs to the employer of the proposed accommodation including impact on efficiency, wage increases and other direct financial costs to be incurred (e.g., renovations); and
7. the impact on the safety of the individual, other employees or the general public.
In this case, the arbitrator held that factors (1) and (5) had the greater influence. The Arbitrator allowed the grievance and agreed with the Union stating that:
The Union's proposal may not be the most "egalitarian" solution in terms of spreading inconvenience across the bargaining unit. However, the workplace is not an egalitarian realm in that sense. Employees who invest their working years with an employer come to expect that, as this investment grows through continued service with that employer, they deserve preferential treatment in their employment. In my experience, this is a pervasive belief and expectation in modern workplaces. On the specific facts before me, faced as I am with two plausible ways of accommodating the Grievor, I conclude that I should choose the proposal which offers the least potential interference with the employment circumstances of the senior employees.
While the Union won the battle in this case, and recognizing the fact-specific nature of the duty to accommodate, this case supports the view that accommodation may be unequally distributed among the bargaining unit based upon seniority.
The claims advanced by Ms. Alibhai in this case were:
The essence of the claim of tortious interference with contractual relations was that Ms. Alibhai's supervisor at the bank gave her poor references, thus preventing her from participating in the Bank's "Job Line" program (I gather this is a program within the Bank in which an employee who is provided with working notice that their position is being eliminated can participate in the hope that a position can be found in another area of the Bank). Ms. Alibhai alleges that:
... Ms. Munsie [the supervisor] wrongfully and discriminatorily gave prospective employers misinformation based on stereotypes about Ms. Alibhai?s ability to perform supervision duties.
... Ms. Munsie acted at all times within the scope of her authority, in good faith, and honestly expressed her views with respect to Ms. Alibhai's abilities as a 'people leader'
Further, I agree with Mr. Marshall that even if Ms. Munsie had been critical of Ms. Alibhai, the provision of a candid reference would give rise to a qualified privilege, unless the plaintiff could establish malice. Qualified privilege arises when a person has an interest or duty legal, social or moral to make a statement to a person who has a corresponding duty to receive it. Ms. Munsie's remarks were relevant to the discussion of Ms. Alibhai's suitability for certain positions and the plaintiff simply cannot establish any malice that would defeat the resulting privilege.
Willful infliction of mental suffering
The Court set out the test for recovery of this tort as follows:
To recover damages for intentional infliction of mental suffering, the defendant's conduct must be both 'flagrant and extreme' and calculated to produce the resulting harm: Rahemtulla v. Vanfed Credit Union(1984), 51 B.C.L.R. 200, 4 C.C.E.L. 170 (S.C.). In that case, the employer had knowingly or recklessly made a false allegation of theft and purported to terminate the employee for cause. A third element of the tort is the requirement of a 'visible and provable illness': McPhillips v. BC Ferry Corp.(1995), 15 C.C.E.L. (2d) 189, B.C.J. No. 2261 (S.C.).
Claim for Wallace Damages
As I have discussed here, it is possible, under certain circumstances, for the Court to extend the period of reasonable notice on the basis of the principles laid down by the Supreme Court of Canada in Wallace v. United Grain Growers. The Court dismissed this claim stating that "To some degree, any employee whose job is terminated may feel humiliated, embarrassed, and bruised. While I do not doubt that Ms. Alibhai experienced those emotions, I cannot find that they were the result of any bad faith or unfair dealings by the Bank or Ms. Munsie, as is required under
The Notice Period
The Court held that the notice period ran from the date that Ms. Alibhai's position was eliminated rather than the date on which she was given written notice that her position would be eliminated. This highlights the fact that the letter giving notice must be carefully drafted, clear and unambiguous. The Court determined that a period of reasonable notice of 16 months was appropriate in this case.
At the end of it all, the CIRB allowed the complaint and made the following comment:
In this case, the Board finds that the union’s treatment of Ms. Bingley went beyond a mere mistake or omission, and was unjustified in the circumstances. Therefore, this is a case where the Board determines that there are grounds to exercise its equitable authority to order full and further redress.
... Ms. Bingley be allowed to retain legal counsel of her choice, at the union’s expense, to effect this settlement. The Board also awards Ms. Bingley the sum of $5,000, payable by the union within 10 days of the issuance of these reasons, to cover the remuneration of her adviser and the expenses associated with the holding of the hearings leading to this decision.
The Canada Industrial Relations Board last week released a practical and somewhat unusual (albeit welcome) decision on the union's duty of fair representation under theCanada Labour Code. The case is called McRae-Jackson et al v. CAW-Canada (unreported, October 12, 2004, CIRB). The decision discusses in detail those circumstances in which the duty arises and how it can be breached. The CIRB starts off the decision as follows:
The Canada Industrial Relations Board (the Board) receives large numbers of complaints from employees alleging that their trade union has breached its duty of fair representation. Annually, these complaints represent close to fifty percent of unfair labour practice complaints received by the Board and monopolize a great deal of its resources without significantly advancing the objectives of Part I of the Canada Labour Code (the Code) which it is called upon to interpret and apply. Indeed, most of these complaints are dismissed on the basis that the facts do not establish sufficient grounds for a successful complaint.You sort-of get the sense as you read the case that the CIRB had enough of these types of complaints and is "laying down the law" literally. The employer would, typically, intervene in the DFR complaint for a number of reasons, not the least of which is because it has an interest in the outcome. In addition, at some point during the mediation process leading up to the hearing (or Consultation, if you're in Ontario), someone from the Board will turn to the employer and ask the employer to help settle the case. The CIRB discussed the role of the employer in a DFR as follows:
The demands placed on the resources of trade unions, the Board and the labour relations system as a whole prompted the Board to review how to address these complaints while satisfying the principles of natural justice that govern all administrative tribunals and the at the same time give complainants the opportunity to have a complaint reviewed.* * *Therefore, in order to provide guidance to all complainants, the Board decided to address misunderstandings concerning the extent of the duty of fair representation by trade unions in a decision that would serve as a reference to litigants and a basis for Board decisions in upholding or dismissing such complaints.
The employer is not a principal party to a [DFR] proceeding. Its actions are not at issue and it has no case to defend. As a matter of practice, it is added as an affected party since its interest could be affected by the outcome of the complaint, that is, the remedy imposed by the Board if the complainant is successful. For this reason, the Board provides the employer with the opportunity of presenting its submissions on the question of remedy. The employer’s role with respect to the merits of the complaint is restricted to that of an observer.In other words, come to the party but if you get to a hearing, sit there and, at the end, say "we agree that the union did nothing wrong and that the complaint should be dismissed". I'm being somewhat facetious, because in practical terms, the employer's role is more involved than that, albeit, it is true, the employee cannot seek any remedy as against the employer in a DFR complaint.
The CIRB dismissed the complaints without a hearing in the McRea-Jackson matter (you'll have to go to page 18 before the CIRB discusses the cases). In doing so, the CIRB notes that:
As these cases illustrate, to the extent that the union has investigated a grievance or potential grievance, put its mind to its merits in light of all the circumstances and made a reasoned judgment about its possible outcome, there will be no cause for the Board to intervene.The Ontario Labour Relations Board dealt with DFR complaints through a Consultation process and by releasing a number of information bulletins to provide assistance to applicants about DFR complaints (see Information Bulletin #11 and Information Bulletin #12).
As the cases illustrate, the test that an applicant must meet in a DFR complaint is very high.
The McGuinty government is helping to create fair workplaces and save business money by making available a new poster that outlines worker and employer rights and obligations...I suppose that's what you'd expect the government to say about itself. By the way, the "save business money" comment relates (I believe) to the fact that the $6 poster is now free. Here's the the New Poster. According to the Press Release:
Employers are required to replace their existing poster with the new poster (Version 2.0). Failure to comply with the posting requirements may result in being charged with an offence.I guess this all feeds in nicely with the Government's plan to Ticket employers in certain circumstances.