Tuesday, 8 July 2014

A Few Quick Bites

Is the “Character of Employment” still relevant to reasonable notice?

Just how important is the “character of [an employee’s] employment” when assessing reasonable notice?  Traditionally, higher reasonable notice periods had been reserved for terminated employees in more senior roles within an organization, with upper management and executives achieving the largest periods (maxing out around 24 months’ pay).  However, in Di Tomaso v. Crown Metal Packaging Canada LP, the Ontario Court of Appeal made the following observation back in 2011:

[The employer] would emphasize the importance of the character of the appellant’s employment to minimize the reasonable notice to which he is entitled. I do not agree with that approach. Indeed, there is recent jurisprudence suggesting that, if anything, it is today a factor of declining relative importance: … [citations omitted].

This is particularly so if an employer attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment. The empirical validity of that proposition cannot simply be taken for granted, particularly in today’s world.

Di Tomaso was a very long-service (33 years), older worker (62 years old), and was deserving of a significant period of notice despite having held a semi-skilled position throughout his employment with Crown.  In the result, the Court of Appeal upheld 22 months’ notice.

If “character of employment” is still alive, it’s on life support.  In the recent decision in Kotecha v. Affinia Canada ULC, the terminated employee had worked for Affinia for over 20 years and was 70 years old at the time of trial in 2013.  At trial he was awarded 22 months’ notice (on top of 11 weeks’ working notice he’d been given by the employer).  The Court of Appeal recognized that the plaintiff employee had shorter service than Mr. Di Tomasso, and reduced his award of damages to 18 months’ pay, less the 11 weeks’ working notice that had been provided. While this may appear to be a loss for the employee, it still represents a significantly better outcome than one would have expected before the decision in Di Tomaso.  The moral of the story:  age and length of service continue to be the primary drivers in assessing reasonable notice, and the nature of the role is less important to the analysis.

Municipality May be Certified on Strength of Two Membership Cards

The recent decision of the Ontario Labour Relations Board in United Brotherhood of Carpenters and Joiners of America v Regional Municipality of Waterloo highlights the dangers for employers who operate in the construction industry and who have work performed by small numbers of workers outside normal working hours.  The Municipality had two workers building a shed on the Region’s property on a Saturday.  Both employees had signed cards with the Carpenters’ union.  The UBCJA filed its application on that day, and the Board determined that it had the requisite support among a bargaining unit of carpenters working for the Municipality to be certified.  {Ultimately, the Board still needs to determine whether the Union will be successful in displacing the Canadian Union of Public Employees, which currently represents these workers.]

In the construction industry in Ontario, trade unions need only submit signed membership cards representing 55% of more of the employees who were working on the “Application Filing Date” in order to be certified as the bargaining agent for all of the employees in the applicable bargaining unit.  It matters not whether a majority of all the employees in that bargaining unit support unionization – there need only be two (2) or more employees who have signed cards at work on the day the Application for Certification is filed.

The Waterloo decision also raises the issue of when an employer is subject to the “construction industry” provisions of the Labour Relations Act.  The Municipality argued that it was a “non-construction employer”, but the Board heard evidence that the Municipality had its employees perform repairs or assist with construction work on premises that it rented to third-parties.  For employers who own premises, but rent portions to other organizations, it’s important to understand that any construction work performed for tenants and for which the “landlord” will receive compensation could put that employer in the “construction industry”, and make the organization subject to the card-based certification process.
Getting Tough on Workplace Harassment

In two recent arbitration decisions, labour arbitrators have considered the scope of their remedial authority when addressing harassing behaviour.  In Unimin Canada Ltd v. United Steelworkers, Local 5383, the grievor had been given a 15-day suspension for repeatedly harassing and bullying a female co-worker in front of her male counterparts.  Following the grievance procedure, the suspension was reduced to 10 days on the condition that the grievor provide a written apology to the complainants and the company.  The grievor’s letter of “apology” showed no remorse, and shortly after his return from suspension he engaged in a number of retaliatory actions.  The company discharged him.

On the arbitration of the discharge grievance, the Union sought to exclude any evidence related to the earlier suspension or the apology, relying on a version of “double-jeopardy” (i.e., those issues had already been considered in the settlement of the earlier grievance, and the employer had accepted the apology he provided, such as it was, without reinstating the 15-day suspension).  The Arbitrator found that the evidence of the grievor’s earlier behaviour, and the content of the apology were relevant to the discharge grievance, and that there were compelling reasons to consider this evidence.  The evidence reflected on the grievor’s credibility in continuing to deny all wrong-doing, there was a similarity of facts between the earlier matter and the reasons for discharge, and it reflected on his complete lack of remorse.   In the result, Arbitrator Randall concluded that the grievor had attempted to retaliate and intimidate the complainants, and that there were no persuasive reasons to alter the penalty imposed by the employer.  The grievance was dismissed.

In William Osler Health System v Ontario Nurses’ Association, the Union brought a grievance on behalf of a nurse who had been sexually harassed by a doctor.  While the Hospital agreed that the harassment had occurred, it felt that its removal of the doctor’s privileges at the hospital was adequate to address the issue.  The Union disagreed, and pressed the labour arbitrator to prohibit the doctor from returning to work at the hospital.  The Hospital took the position that a labour arbitrator does not have the jurisdiction to issue such a remedy.

Arbitrator Albertyn had to consider whether the doctor’s return to the workplace would “pose any reasonable risk of harm to the grievor”, and assess whether his authority under statute extended to effectively stripping the doctor’s medical privileges indefinitely.  The Hospital argued that under the Public Hospitals Act and regulations, there was a process for removing or declining to reappoint a doctor’s privileges, but that the procedure was subject to appeal to the Health Professionals Appeal and Review Board and was to be carried out pursuant to the rules of natural justice.  At the same time, freedom from harassment and the obligation to provide a safe, healthy workplace were subject to the Human Rights Code and the Occupational Health and Safety Act, both of which an arbitrator has jurisdiction to interpret and apply.

The arbitrator concluded that the process under the Public Hospitals Act was outside his jurisdiction, and that ultimately he could not decide whether the doctor’s privileges should be restored.  However, assuming that the HPARB determined that he would regain those privileges, the arbitrator’s jurisdiction would be to answer the “labour relations and workplace safety question arising directly from the collective agreement”:  how closely should the doctor be permitted to work with the grievor and under what, if any, conditions?  Arbitrator Albertyn indicated that he would have to consider what hours and locations of the Hospital the doctor could work at, and whether he could be in the workplace at all while the grievor was present, in order to provide the grievor with a safe, harassment-free work environment. 

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Do you have questions about employment and labour law issues?  Please don’t hesitate to contact Lance Ceaser for assistance.

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