Thoughts from a Management Lawyer

TTC declared essential service

No huge surprise here.  The Ontario government passed Bill 150 declaring the Toronto Transit Commission an essential service and banning its workers from striking.   Lines were drawn before the legislation was passed, but the rhetoric has heated up (TTC declared essential service, union chief says won’t be ‘bullied’ by Toronto).  Here's some information on the Ministry of Labour website.

Ontario Ministry of Labour Announces Safety Blitzes

The Ontario Ministry of Labour announced its 2011-2012 safety blitz schedule.  According to the Ministry website:

The Ministry of Labour’s proactive inspection blitzes on sector-specific hazards are designed to raise awareness and increase compliance with health and safety legislation.

These blitzes are announced in advance and results are reported after they are completed. The ministry tracks each sector to determine if the blitzes result in a long-lasting increase in compliance and decrease in injuries.

The 2008-2009 Results are available as are the 2010 results.

Just Cause... Yes ... But ...

While just cause is tough to prove (as you'd expect it to be given that it has been described as the "capital punishment" of employment law), it's by no means impossible to prove, despite what some might suggest.  

A case in point is the recent Oosterbosch v. FAG Aerospace Inc. where the employer terminated a 53 year old, machine operator with 19 years service based on progressive discipline.  The employee had a number of discipline notices on his record.  The culminating incident occurred on March 28, 2009 which was described as "unsatisfactory work performance and falsification of records".  According to the Court:

It was determined that this incident warranted discipline but no warning was issued because the plaintiff had already accumulated the requisite four warnings to justify termination pursuant to the progressive discipline policy.

The Court summarized the legal principles as follows:

The onus is on the defendant to establish just cause for the termination of the plaintiff’s employment. The standard that the defendant has set is articulated in its progressive discipline policy.  Although the plaintiff’s dismissal following receipt of four written warnings within a year complies with that policy it does not necessarily follow that there was justification for his termination in law.  Just cause at common law requires proof of misconduct that constitutes a repudiation of the employment relationship

The reason I mention this is that many employers believe that their progressive discipline or performance management policies are determinative of a just cause finding.  They aren't.  The determination of whether there is just cause requires a contextual analysis (following McKinley v. BC Tel).  

Now, here's the rub of the case.  

While the Court determined that the employee was terminated for just cause and was not entitled to reasonable notice of termination at common law, the Court nonetheless went on to briefly consider whether the employees' conduct amounted to “wilful misconduct, disobedience or wilful neglect of duty” such that he would be dissentitled to receipt of termination and severance payments under the provisions of the Employment Standards Act, 2000.   

The judge in this case held that conduct that might justify a finding of just cause for common law purposes will not necessarily result in a finding of "wilful misconduct, disobedience or wilful neglect of duty" under the Ontario ESA, such that a finding of just cause at common law, would still require a further analysis of whether the conduct meets the ESA test.

In this case, the Court awarded the plaintiff $17,127.33 as termination and severance pay under the ESA.  

Employer's take careful note as this case opens up some interesting possibilities for plaintiffs.

All Words Have a Meaning (at arbitration and everywhere)

Arbitrators get their jurisdiction from the collective agreement between the Union and employer, and their task is to interprete the words negotiated by the parties.  There is a presumption that in construing a collective agreement, all of the words used were intended to have some meaning.  The words must be interpreted in a manner that makes sense.  This requires that the words be read, understood and interpreted.

In Hospital for Sick Children, the issue was whether an employee had lost seniority and his employment deemed terminated under the following provision:  

“An employee shall lose all seniority and service and shall be deemed to have terminated if he:  

… (d)         is absent from scheduled work for a period of three (3) or more consecutive working days without notifying the Hospital of such absence and providing to the Hospital a satisfactory reason.

This case was heard on three (3) days and an evening by a tripartite Board of Arbitration.   While the Award allowing was a short 6 paragraphs long,  the lessons emerging from the Award are many.  

The employee (grievor) was off work for three (3) months starting October 5, soo8.  He supplied the employer with medical notes substantiating his absence from work.  His sick leave entitlement expired shortly after he started his medical leave.  In these circumstances:

As such, there is no question that the Hospital was notified of Mr. Baker’s absence. What there is a question about is whether Mr. Baker was “absent from scheduled work” and, if so, whether there was a “satisfactory reason” for that absence.

The Board of Arbitrator had no problem quickly finding that the first condition was "clearly not met" and there was no need to go on to consider whether the proferred reason for absence was satisfatory.  

Given that the employee was absent from work for three (3) months, if the employer now wanted to invoke article 9(3) of the Collective Agreement, it had to meet the terms of the article.  Here's where the Board of Arbitration provides some direction:

Here, that meant more than simply advising Mr. Baker, after a request for further (and detailed) “clarification” from his physician (on which Mr. Baker had not been copied) made substantially over the Christmas/New Year’s period, did not generate a response within the stipulated deadline, that he was now, for the first time in three months, considered to be “absent without authorization” and that his employment “may be in jeopardy” unless he responded to that request within three days; leaving aside any concerns one might have as to the “fairness” of that approach, or as to the legal or factual ambiguity of the message, it required both that Mr. Baker actually be scheduled for work (so that he could have some “scheduled work” from which he could properly be said to be “absent”) and that he be so advised.  In this case, there is no evidence that either of those things happened and, for that reason alone, the termination cannot stand.

Before invoking the consequences of a clause of this nature (realy any collective agreement provision), pause and step back.  Here's some questions (there are more):

1. Read the article that you're trying to bring yourself within - what does the article say (i.e. what are the agreed to words?)
2. What do all of the words mean (alone and together)? How will this provision be interpreted?
3. Are there other collective agreement provisions that might impact one way or the other on the interpretation of the article on which you intent to rely?
4. Now that you've read the collective agreement, and the specific article in question, and understand it, what are the circumstances of your specific case and how should you reasonably deal with those circumstances to bring the situation into the clause?  In fact, can you bring yourself within the terms of the collective agreement at all?

Trying to fit a square peg into a round hole, rushing, or ignoring the collective agreement language or the particular circumstances of the case, greatly increases the odds that the case will end badly.  

In the Hospital for Sick Children case, the Board of Arbitration allowed the grievance, and reinstated the grievor with no loss of service or seniority, and with full compensation and all lost salary and benefits.

Human Rights Tribunal is Not a Panacea for Workplace Disputes

So says the Human Rights Tribunal itself in Reid v. Molson Coors Canada which involved a Summary Hearing.  According to the Tribunal:

The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure.  In a summary hearing, the issue is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

The Tribunal dismissed the application as there was "no real prospect that the Application will succeed".  The Tribunal observed:

It is evident that the parties are engaged in a number of work-related disputes and that the applicant feels that he has been treated unfairly by the respondents and his union. The Tribunal, however, is not a panacea for workplace disputes and general allegations of unfairness.  The Tribunal’s authority is to determine whether there has been discrimination on a ground prohibited by the Code or a reprisal for asserting one’s Code rights.

This is another case in a growing line of cases where the Tribunal has taken a narrow and foccused view of its role and function.