Insensitive Presentation to Employees ≠ Harassment or Discrimination

Concepts like "harassment" and "discrimination" have been the subject of a great deal of legal analysis and debate.  Ultimately, how these terms are defined is a matter of context.  Where parties to a collective agreement sign off on provisions that protect employees from harassment or discrimination on the basis of the grounds in the Human Rights Code or union membership and activity, it is only conduct that violates those protections that a labour arbitrator will punish.  In a recent case dealing with a presentation to employees that was widely described as "offensive", the Ontario Grievance Settlement Board had to decide whether the employer had crossed the line.

In Ontario Public Service Employees Union v. Ontario (Ministry of Transportation), 39 employees joined a grievance alleging that the employer had violated several provisions of the collective agreement and the Human Rights Code when a Regional Manager made a presentation to employees which they found deeply offensive.  The presentation, titled "New Year New Outlook" contained graphic imagery depicting poverty in the developing world. One slide contained an image of an impoverished child, with the caption:  "If you think your salary is low, how about her?"  Other slides seemed to trivialize "first-world problems" and asked employees to set "new expectations". At the time of the presentation, the parties were about to enter collective bargaining.  The union alleged that the images of poverty in the slide show were racist in their depiction of people of colour as deserving of pity.  Moreover, the union took the position that the slide show was condescending, suggested that staff were lazy and overpaid, and was intended to shame and discourage union members in their upcoming negotiations with management. The employer brought a motion to dismiss the grievances on the basis that the allegations, if proven, did not establish a violation of any provision of the collective agreement.  The grievors were not themselves members of any group protected by the Human Rights Code, and could not therefore rely on the non-discrimination provision of the agreement.  The employer also argued that the union had not provided any particulars of how the grievors' rights to participate in the union's activities had been impacted. 

The Grievance Settlement Board found that the grievances did not make out a prima facie case.  Assuming that the factual allegations were all true, there was nothing in the grievances that would establish a violation of the collective agreement or the statutes in questions.  Given that there were no particulars asserting that any of the grievors were identified with a protected ground, the union could not prove that the presentation amounted to harassment, discrimination or created a "poisoned work environment" for anyone identified with a particular racial group.  As the Board concluded at para. 37:

In the present case, there is no assertion that any of the grievors were members of a protected group or had a protected characteristic. Nor are any facts asserted that the workplace became poisoned for any of them because of a protected characteristic. The grievors may well have been offended by the presentation. However, there are no facts asserted that any of them had a protected characteristic let alone exposure to a poisoned work environment because of such a characteristic. Since the collective agreement and Code provisions relied upon by the union prohibit discrimination on the basis of specified grounds, there can be no contravention based on the asserted facts.

The Board further found that the union had not alleged any facts that would tend to establish that the employer had engaged in anti-union activity by making the presentation during a bargaining year.  Without pointing to some objective evidence that the grievors had suffered some disadvantage because of their union membership or activity, the union could not establish a violation of the collective agreement.  Moreover, the union had not provided any facts that would raise an inference of anti-union animus by the employer. 
In closing, the Board felt compelled to address the union's argument that dismissing the grievances for lack of a prima facie case would send the message that the presentation was "fine".  The Board disagreed, pointing to its role as an adjudicator under a collective agreement.  At para. 46, the Board stated:

The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was "fine" or that the Board endorses such conduct. The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees. The Board’s determination is that as a matter of law, the grievors have not asserted facts [that], if accepted as true, are capable of establishing that any of them had their rights under any of the collective agreement and statutory provisions relied upon, denied or abridged. The Board so finds. As a result the employer’s motion is upheld and all of the grievances are hereby dismissed.

The case demonstrates the importance of carefully reviewing the language of the collective agreement when assessing the strength of a grievance or argument. Depending on the language of the agreement, "offensive" may not amount to "harassment" or "discrimination".  While the result would be different under an agreement that contains broader definitions of employee rights, the case stands for the proposition that an arbitrator is limited to the four corners of the collective agreement and cannot assert free-standing jurisdiction to judge every employer action, no matter how "offensive, distasteful and inappropriate" those actions may be.  The collective agreement still dictates the arbitrator's jurisdiction.

 Do you have concerns about workplace harassment or other offensive behaviour?  Need advice on an upcoming grievance arbitration?  Contact Lance Ceaser for cost-effective assistance with all of your labour and employment law issues.



 


 

Drug & Alcohol Testing - The State of the Law

Over the last couple of years, the law on workplace drug and alcohol testing has become significantly clearer - to the point where it's arguable that there is little ambiguity left.  It is widely accepted that alcohol and drug dependency are 'disabilities' protected by human rights legislation, and that drug testing tends to impose differential treatment on those who suffer from these conditions or presupposes that those who test positive are "addicts" and more likely to be impaired in the workplace.  In the absence of evidence to establish that testing (to ensure freedom of impairment) is a bona fide occupational requirement (i.e., rationally connected to preventing impairment, adopted in good faith, reasonably necessary to achieve that end, and that no other reasonable accommodation of disabled employees is possible, without incurring undue hardship), alcohol and drug testing will be found to be discriminatory.

So what are employers allowed to do in the name of workplace health and safety?  What is out of bounds?  Here's an overview of how the law has evolved, and where employers and employees stand following the most recent pronouncements of the courts and arbitrators.

Entrop v. Imperial Oil

The debate about the competing interests of employers (maintaining a safe workplace) and employees (protecting privacy and dignity) really got started with the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil ("Entrop").  In that case, the employee had disclosed a past substance abuse problem, in line with the employer's alcohol and drug policy, and was transferred out of a safety-sensitive position as a result.  In order to be reinstated to his former job, the employee was required to complete a company-approved two-year rehabilitation program followed by five years of abstinence and to sign an undertaking to abide by specified post-reinstatement controls (such as unannounced testing).  The policy also provided for random testing for all employees in safety-sensitive roles, providing for termination for a failed test.  The employee complained to the Ontario Human Rights Commission, and his complaint was upheld by a Board of Inquiry.

On appeal from the judicial review decision, the Court of Appeal found that alcohol and drug dependency were forms of "disability" protected by the Human Rights Code.  The Court went on to find that testing was rationally connected to the legitimate goal of preventing potentially "catastrophic" incidents at an oil refinery, which is an inherently safety-sensitive workplace.  However, drug testing (at the time) did not establish "present impairment", and therefore could not establish that an employee's condition, following a positive test, posed an actual danger.  While alcohol testing could establish impairment, it could not be justified unless the sanction imposed by the employer was tailored to the individual's circumstances and was supportive of accommodating his or her disability.  The Court of Appeal agreed with the Board of Inquiry that the provisions on disclosure, reassignment and reinstatement also violated the Human Rights Code, in that the employer did not establish that these rules were reasonably necessary to ensure that employees were not impaired in the workplace. The mandatory disclosure of a past substance abuse problem, no matter how long ago, was unreasonable, particularly once an employee was no more at risk of relapse than a member of the general population. Requiring that an employee be reassigned out of a safety-sensitive position once they had disclosed a past substance abuse problem was also not reasonable because it failed to offer any accommodation to the employee who had disclosed a disability.  The obligations that the policy imposed post-reinstatement were overly broad and unnecessarily rigorous.  The Court, however, found that reasonable cause and post-incident testing were defensible, provided they were part of a broader assessment of impairment by alcohol and drugs in the workplace.

Since the Entrop decision, there has been a vast amount of litigation on the subject of whether an employer can legitimately test employees for impairment by alcohol or drugs.  Here's a summary of where the law currently stands in Ontario:

Random Testing

Following the decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving"), it is now accepted that a unionized employer cannot justify the random testing of employees in safety-sensitive positions, unless the employer can establish that there is an actual workplace problem with drug and alcohol impairment which threatens health and safety. On the facts, the employer could only point to eight (8) safety incidents over a 15-year period that were caused or attributable to drug or alcohol impairment, so the employer was unable to establish that the balance of interests favoured intruding upon employee's autonomy by imposing random, unannounced testing.

 

However, in the non-union setting, employers may have slightly more leeway.  In Irving, the SCC expressly distinguished the Entrop decision, as non-union employers are not subject to the same managerial fetters as they are under a collective agreement.  It remains to be seen whether the analysis in Irving will ultimately influence human rights decision-makers when addressing complaints from employees who do not have union representation.

Pre-Access Testing

In a recent decision, the Ontario Superior Court of Justice upheld the decision of Arbitrator George Surdykowski in Mechanical ContractorsAssn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry, in which the Arbitrator determined that pre-access testing was more akin to random testing, and therefore unreasonable unless it can be established that:   

... such testing will probably have a meaningful ameliorating effect on an actual substance abuse problem at that work site, and so long as such pre-access testing is part of a broader alcohol and drug policy which includes an individualized approach to dealing with employee alcohol and drug issues which is consistent with the Ontario Human Rights Code. 

In short, unless the employer can establish both an actual workplace problem with alcohol or drugs and the availability of accommodation for employees who test positive, pre-access testing will not be reasonable in unionized workplaces.  Whether pre-access testing is permissible in non-union settings (following Entrop) remains to be conclusively determined.

For Cause, Post-Incident and Testing Following Return from Treatment

Following Entrop, there has been little argument about an employer's right to perform drug and alcohol testing where there is reasonable cause to suspect impairment (e.g., where an employee is behaving in a manner that raises a suspicion of substance abuse), or following an incident or near-miss in the workplace.  In order to qualify, the employee must be in a safety-sensitive position, and there must be objective reasons to consider drug or alcohol impairment as a potential cause or contributor to the employee's behaviour or performance.  Likewise, when an employee in a safety-sensitive job has disclosed an addiction and has sought treatment, an employer has a right to require testing for a reasonable period of time following the employee's return to work to monitor compliance with the employee's rehabilitation program.  Of course, the response to a positive test in any of these circumstances must be tailored to the employee's personal circumstances and provide the potential for accommodation of a disability, but it is otherwise permissible.

The East-West Divide

Ontario employer may have heard of more lenient decisions emanating from the courts of Alberta (most notably the 2007 decision of the Alberta Court of Appeal in Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, leave to appeal to the Supreme Court of Canada denied).  However, don't be confused.  As recognized by Arbitrator Surdykowski in the Mechanical Contractors' Association Sarnia decision (above), there is truly a divide in the approach as between Alberta and all points east.  In Ontario, the reasons of the Alberta courts have not found favour, and the approach continues to be much more restrictive.  Unless an employer can point to safety-sensitive positions (or a workplace that is inherently dangerous) and evidence of a workplace 'problem' related to alcohol or drug impairment (i.e., erratic behaviour, an accident or near miss, an employee returning from drug or alcohol rehabilitation, or a proven substance abuse problem in the workplace generally), testing under a policy will be a tough sell.  Most adjudicators in Ontario will find in these situations that an employee's interest in personal dignity, autonomy and privacy will trump the employer's concerns for workplace health and safety, no matter how sincerely held those beliefs may be.

Do you have questions about how to formulate or apply a drug and alcohol policy in your workplace?  Need advice on what to do in the event of a positive drug or alcohol test?  Contact Lance Ceaser for expert guidance.




 

Supreme Court of Canada "Constitutionalizes" the Right to Strike

In a decision that will have deep reverberations throughout the broader public sector across Canada, the Supreme Court has ruled that section 2(d) of the Canadian Charter of Rights and Freedoms protects the right to strike for all workers in Canada, including those public sector employees who are currently covered by labour legislation that limits or eliminates the right to strike.

In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court held (in a 5-2 decision) that the right to strike is a merely an extension of the right to engage in meaningful collective negotiation of working conditions, which was previously found to be protected as part of Canadians' "freedom of association", guaranteed by section 2(d) of the Charter.  The majority of the Court found that removing the right to strike curtails this freedom in a manner that is not justified under section 1 of the Charter.  In particular, the Court found that rights under section 2(d) were not "minimally impaired" as the legislation introduced by the Government of Saskatchewan in 2007 gave the employer (the Province) the unilateral discretion to identify the number and identity of workers who would be providing "essential" public services, required those workers to perform all of their regular duties (not just provide services that were deemed to be essential), and offered no alternative mechanism for the resolution of collective bargaining impasses.  In short, the legislation eliminated the right of certain workers to strike (without any negotiation on which services or workers were "essential") and offered no meaningful scheme (such as binding arbitration) to resolve disputes that might otherwise lead to the withdrawal of employees' services. The majority suspended the application of the decision for one year to allow the Government to make necessary modifications to the legislation to comply with the Charter.

The minority (Rothstein and Wagner JJ) held that the majority's decision overstepped the bounds of judicial intervention, effectively ensconcing a right that had previously been found to not exist (in a decision of the Court from 1987).  The minority Justices were of the opinion that the majority's approach removed the flexibility that Government required to balance the interests of employers, employees and the public. In the minority's opinion, recognizing a constitutional right to strike would upset that balance, in favour of employees.

While it remains to be seen how this decision will be interpreted and applied outside Saskatchewan, where legislative schemes differ, it is likely to change the tenor of public sector collective bargaining everywhere.  Public sector employers will likely have to, at least, engage in meaningful negotiation with public sector trade unions regarding which and how many employees are required to perform essential services during a work stoppage.  Those who are required to work during a strike will only have to perform those functions necessary to continue the essential service in question. Where regimes provide for a complete ban on strikes, legislation will have to be amended to provide for some other dispute resolution mechanism as an alternative. 

One outcome is clear, however.  This decision represents a significant victory for the labour movement in Canada, as it has redefined and broadened the meaning of "freedom of association" beyond what it has been for the last 30 years.

Do you have questions about labour relations or employees' right to strike?  Contact Lance Ceaser for expert guidance.

Tales from the Electronic Workplace

Whether it's social media usage or just 'old-fashioned' email, some people still seem to underestimate the impact that misuse can have on their personal and professional lives (as well as the lives of others).  Some recent cases illustrate the point.

Labour Arbitrators Gail Misra and Elaine Newman recently had to deal with grievances brought by firefighters in the City of Toronto who were terminated for posting offensive comments on Twitter, which ultimately came to the attention of and were publicized by the National Post.  The employees had posted or re-tweeted comments or jokes that were disparaging of women, the disabled and visible minority groups. The tweets were discovered by the National Post, which then questioned how inclusive the Toronto Fire Service actually was.  This was particularly problematic for the employer, as it was in the midst of launching a diversity campaign to recruit women and other groups in accordance with the make-up of the community it serves.  The City was of the view that the tweets in question, from individuals who had identified themselves as Toronto firefighters, not only violated the City's policies, but also did harm to the City's reputation.

In the first of the grievances to be heard, Arbitrator Misra found that the employer had cause for some form of discipline, but ruled that discharge was too harsh.  It was common ground between the parties that the grievor had made the comments in his off-duty time, but that the grievor would have been aware of the importance of not bringing discredit to the Fire Service.  The Arbitrator found that the tweets were shared with co-workers, and had a connection with the workplace, and that their appearance in the National Post article did have potential ramifications for the City's reputation.  The Arbitrator also rejected the grievor's argument that he was unaware that his tweets were accessible to the public, given that he had an opportunity to review the terms of use for Twitter when he signed up.  Moreover, Twitter was designed to allow individuals to communicate publicly (in 140 characters or less) on timely topics.  The grievor may not have been aware of the Standard Operating Guideline specifically directed to social media use, but he knew that there were stringent expectations of firefighters whenever they were in the 'public eye'.  Accordingly, his inappropriate tweets (about 'swatting' a young woman in the head to "re-set her brain") did amount to cause for discipline.  With respect to two other tweets, however, the employer did not establish that the grievor's use of language had been offensive, within the context that he used the 'objectionable' terms.  Although the grievor did not fully understand why any of his comments on Twitter were inappropriate, he did apologize to the employer and his colleagues for the media storm that he had created.  In the result, the Arbitrator held that the penalty of discharge was excessive, substituting a 3-day unpaid suspension.

On similar facts, however, Arbitrator Newman found that discharge was warranted with respect to the other firefighter (decision not yet reported).  After reviewing the arbitral case law on off-duty conduct, Arbitrator Newman observed that the grievor ought to have known that his behaviour on Twitter was inappropriate.  Not only did it potentially bring discredit to the Toronto Fire Service, but it also violated the employer's anti-discrimination policy. At the hearing, the grievor's testimony suggested that he still lacked any insight into how improper his conduct had been, particularly for a firefighter.  In particular, Arbitrator Newman found that the grievor appeared to be incapable of behaving in a way that "brings honour to the uniform," and that his behaviour would reflect poorly within the community that the Fire Service was obliged to serve.  Given the damage that his actions had done to the employer's reputation, Arbitrator Newman upheld his discharge

In R. v. Dewan, the Ontario Court of Appeal was considering an appeal by the accused on his sentence for criminal mischief and harassment.  The appellant had tried to strike up a relationship with a co-worker which was rejected. The appellant continued to pursue the co-worker, until she advised him that she had contacted the police.  At that point, the appellant sent an email out that purported to come from the co-workers.  In the email (that was sent to 9 other co-workers) "degraded the co-worker professionally, sexually, and physically".  The appellant was also convicted of harassment with respect to similar behaviour toward a woman with whom he'd had a romantic relationship, after relations soured.  The appellant had served the equivalent of 2 months in jail, and was given a suspended sentence and 2 years' probation on the mischief charge, as well as 90 days (to be served intermittently) on the harassment charge.  The Ontario Court of Appeal dismissed his appeal, finding:

Having regard to the nature and seriousness of these offences, we are of the view that, even taking account of the appellant’s positive prospects and five months’ time served, imposing a conditional discharge would be contrary to the public interest. Intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind. Even taking account of five months’ time served, imposing a conditional discharge would not reflect the level of denunciation these offences deserve.

These cases demonstrate that context is key in assessing what, if any, disciplinary response is appropriate when an employee engages in off-duty, online conduct that violates workplace rules.  Even pejorative terms in Facebook or Twitter posts should be carefully be reviewed to determine whether they would be offensive to a "reasonable person".  Where an employee's behaviour can be traced to a lack of understanding of the rules or even to the nature of how social media works, employers should be prepared to weigh these factors before doling out punishment.  However, where an employee engages in aggressive behaviour toward a co-worker (such as was the case in R. v. Dewan), whether in person or via email, an employer should take strong action to address the misconduct.  The Court of Appeal's denunciation of the appellant's conduct should serve as strong support for an employer imposing harsh sanctions, including termination.

Do you have questions about implementing social media policy or addressing inappropriate online behaviour?  Contact Lance Ceaser for expert guidance.  

 

 

 

Zero Tolerance ≠ Automatic Suspension for Any Violation of Safety Policy

Employers have very significant duties with respect to protecting the health and safety of their employees, and the potential liability to the employer in the case of an injury or fatality can be overwhelming.  As a result, many employers have adopted 'zero tolerance' policies to ensure that employees work in a safe manner.  But what does 'zero tolerance' really mean, and how enforceable are such policies?

In a recent arbitration decision, Arbitrator Paul Craven had the opportunity to comment on these concepts.  In U.S. Steel - Hamilton v. United Steelworkers, Local 1005, the grievor was by all accounts a good employee with a clean disciplinary record.  As he was leaving the plant one day, he was selected for a random vehicle search.  Plant security found a partial bottle of vodka in the trunk of the car, beneath some camping equipment.  The Company had a 'zero tolerance' policy that prohibited the possession of alcohol on company property, and provided for a 3-day suspension for a first violation.  The employee explained to the employer that he was driving his wife's vehicle that day, and that his daughter had previously used the car for a camping trip, and failed to unload the trunk.  A phone call to his daughter, in the presence of security staff, confirmed this to be the case, and the employer did not disbelieve this explanation. However, relying on the policy, the employee was still given a 3-day suspension, which he grieved.

At arbitration, the parties agreed that the Hamilton steel plant was a "safety-sensitive" environment and that alcohol and drugs should be kept out of the workplace, but the union argued that an unintentional violation of the policy which had no impact for plant safety should not have attracted such a serious form of discipline (the last step in the disciplinary process short of termination). The employer argued that strict and consistent enforcement of the policy was necessary to ensure that employees did not become confused about the rules against alcohol in the workplace.

Arbitrator Craven began his analysis by reviewing the decision in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. Ltd. ("KVP"), which describes the test to be applied in assessing employer policies that have not been negotiated with and agreed upon by the union.

1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
6. Such rule should have been consistently enforced by the company from the time it was introduced.

Looking solely at the policy, and the company's evidence that it had been consistently enforced (with only one or two anomalous situations), the Arbitrator was of the view that the policy was generally reasonable and that the employer was entitled to rely on it to impose some form of discipline.  However, the Arbitrator then went on to consider whether the level of discipline imposed was appropriate considering the nature of the employee's policy violation.  Arbitrator Craven observed that if 'zero tolerance' means not only discipline for every violation, but the "automatic application of ... a significant penalty" (such as a one-week suspension) in every case, without this being part of the written policy, then the policy would fail the reasonableness test on the 2nd, 3rd and 4th prongs of the KVP test.  In short, if specific violations are to be subject to automatic penalties, those must be set out in the policy itself and brought to employees' attention.  Arbitrator Craven went on to state that 'zero tolerance' in the sense of a set penalty for any violation of the policy has also been held to violate the just cause provisions of a collective agreement (by not considering individual circumstances and by imposing discipline that is not "progressive"), and therefore would fail the test in KVP for that reason.

In looking at how the employer applied the policy to the grievor, the Arbitrator found that the punishment did not fit the crime. The employer had mechanically applied a set penalty without first considering the employee's disciplinary record and his blamelessness in unwittingly violating the policy.  The three-day suspension was found to be too severe, and was to be removed and replaced with a written warning.

The message to unionized employers should be clear.  In the absence of an agreed-upon specific penalty clause in the collective agreement, the employer should not impose automatic disciplinary sanctions for policy violations, even where there is a legitimate and pressing reason for insisting on 'zero tolerance'.  Zero tolerance should only be applied at the stage of determining whether there has been a violation of policy (i.e., an investigation should occur, and measures taken to address every violation).  Once a policy violation is found, the employer must assess the seriousness of the violation, considering the actual or potential harm to the organization, the presence or absence of intent, the employee's disciplinary record, the level of discipline previously applied for similar violations, etc.  Only by performing this analysis before taking corrective action can an employer later justify its actions.

Do you have questions about instituting new policies or the imposition of discipline?  Contact Lance Ceaser for expert advice.





 

 

 

 

 

Arbitrators Have Exclusive Jurisdiction Over ALL Matters Covered by the Collective Agreement

A recent decision of the Ontario Court of Appeal highlights the importance of the decision in Weber v. Ontario Hydro almost 20 years later.  In Weber, the Supreme Court of Canada had to determine whether legislatures had granted exclusive jurisdiction to labour arbitrators to deal with all issues of interpretation, application or alleged violation of a collective agreement, or if they shared concurrent jurisdiction with the courts.  Under the former model, unionized employers and employees would have virtually no recourse to the courts if their disputes could be said to arise under the collective agreement.  The Supreme Court ultimately rejected concurrent jurisdiction, and stated very clearly that all issues arising in the unionized workplace that fell within the four corners of the collective agreement had to go to arbitration.

The employee in George v. Anishinabek (Police Service) was a member of the Anishinabek Police Service (the "APS") who was facing discipline.  Under a tri-partite agreement among the federal and provincial governments and several First Nations, the APS was retained to provide policing services within certain APS territories. Oversight of APS policing was granted to the Police Governing Authority ("PGA"), which was also responsible for decision-making under APS' Code of Conduct for its employees.  The PGA was also the "employer" of all APS staff, and was bound to a collective agreement with the Public Service Alliance of Canada, which provided a grievance procedure for all issues falling under the collective agreement.  Under the APS Code, decisions on discipline were to be made within 6 months of an incident, but with some discretion for the PGA to extend those timelines.  Mr. George was advised of a disciplinary hearing more than 12 months after an incident on the job, but was not given notice that APS had sought an extension of the time to commence a proceeding under the Code.  As a result, he brought an application for judicial review in the Divisional Court to quash the notice of disciplinary hearing (on the basis of a lack of procedural fairness), and was successful.  The APS appealed that decision.

At the Divisional Court, the APS did not challenge the court's jurisdiction to judicially review the decision of PGA, but this was the central issue in its appeal to the Ontario Court of Appeal.  While appellate courts will usually not allow parties to argue points that were not argued in the courts below, they did permit APS to pursue this argument as it might be determinative of the matter, could be argued on the existing record without further evidence, and would not be overly prejudicial to the respondent.  On the question of whether the Divisional Court had jurisdiction to engage in judicial review, the Court of Appeal relied on Weber to find that the answer was "no".  Under Weber, a court must consider the nature of the dispute, and whether that dispute falls within the ambit of the collective agreement in question. In applying the test to the circumstances of the case, Justice Doherty (writing for a unanimous court) found that the issue revolved around discipline.  While discipline was a matter covered by the Code, the Code was simply the mechanism by which the employer exercised its management rights under the collective agreement.  Accordingly, the dispute in question was one that fell within a labour arbitrator's exclusive jurisdiction, and the issue of procedural fairness should not have been addressed by the Divisional Court.

The Court of Appeal's decision serves as a good reminder of the extent to which a collective bargaining relationship changes the dynamics of a workplace.  Not only are typical employee relations issues barred from the courts, but any dispute or matter of interpretation, including those that arise under employment-related statutes, should be brought before an arbitrator for determination.  It is therefore important for employers to ensure that they are mindful of Weber when confronted with a claim (or the threat of a claim) in the courts, and to argue that the issue should be resolved in grievance arbitration.

Do you have questions about labour relations or other employment-related litigation?  Contact Lance Ceaser for assistance.