Decisions

Associate Chief Justice of the BC Provincial Court dismissed claim by garbage disposal company – Segal Disposal

Aug 14, 2015

The claimant was a corporation, which carried on business under a business name, Segal Disposal, registered as a personal proprietorship. The Claimant had notice that the Defendant’s position was that there was no privity of contract. The court ordered the trial date vacated.

Union Denied Severance Package to Employee on Leave for Disability

Feb 19, 2015

Unjust Dismissal Complaint – Canada labour Code

Jan 24, 2015

Based on the evidence and submissions, the unjust dismissal complaint and the wage recovery appeal are without merit. There is nothing to substantiate that the Employer changed the terms and conditions of his employment such that Coonfer was constructively dismissed. Rather, Coonfer resigned from his employment and is not entitled to severance. There is similarly nothing to substantiate that the Employer did not pay Coonfer in accordance with his contract.

IAMAW DL 140 breached duty of fair representation under the Canada Labour Code

Jan 14, 2015

The Union violated its duty of fair representation.

First, the Union failed to disclose prejudicial allegations by co-workers against the Complainants. A Union may often represent individuals with competing interests. That situation must be handled adroitly, but it does not prevent a Union from carrying out its functions. The Board has found a union violates its DFR duty if it fails to put relevant employer evidence to the grievor for an explanation. The Board found no principled reason why the same concept would not apply when a trade union has received prejudicial allegations by some employees against others. It was incumbent on the IAMAW to put those negative allegations to the Complainants for comment. The IAMAW’s changed its attitude toward the Complainants. It is the clear existence of this change, without any satisfactory explanation, which supports a finding of a violation of the Code.

Second, the Union failed to document the process it followed which lead to the reinstatement of three out of seven terminated long service employees. An almost total lack of documentation about this key event, despite its prior attention to record keeping, impacts the weight which the Board can give to the oral testimony of the Union representative. As well, the same comment applies to the circumstances surrounding the appeal committee decision. The Union representative testified about the elements she says the Committee considered. But, again, not a single note or email exists about this teleconference meeting. No minutes were taken of the discussions. No emails were exchanged by the three participants either before or after the meeting.

Third, the CIRB noted that it does not appear overly demanding to require a trade union, at the end of its process, to provide an explanation to an employee why his/her grievance will not go any further. If providing nothing of substance to a grievor is designed to provide a trade union with greater flexibility at a future DFR hearing, then this strategy may be suspect. The Board examines what a trade union actually did, not what it could have done. The IAMAW provided only the following “reason”: “Given the evidence in this matter and the nature of the offense, we do not believe that the grievance would be successful. As such, we have decided not to proceed to arbitration regarding this matter.” The Board found that a bald conclusion does not constitute the type of reasons to which its leading case with respect to the duty of fair representation – McRaeJackson. The Board has concerns when a trade union fails to tell a member its reasons for not proceeding to arbitration. How can a union member realistically file an internal union appeal if he/she has no idea why the union decided not to go to arbitration? How can that member argue that the union’s officers might have misunderstood the evidence, especially if some similarly situated employees were reinstated, if the trade union does not provide any explanation of its reasons? This lack of reasons, whether standing alone, or as just another aspect of the IAMAW’s process, satisfies the Board that the IAMAW violated its duty under the Code. The Complainants are therefore entitled to certain remedies.

The Employee Resigned

Dec 31, 2014

On the evidence and submissions, the unjust dismissal complaint and the wage recovery appeal are without merit. There is nothing to substantiate that the Employer changed the terms and conditions of his employment such that Coonfer was constructively dismissed. Rather, Coonfer resigned from his employment and is not entitled to severance. There is similarly nothing to substantiate that the Employer did not pay Coonfer in accordance with his contract.

Procedural powers of Adjudicator under the Canada Labour Code

Dec 29, 2014

Termination following Maternity Leave – Unjust Dismissal – Canada Labour Code

Dec 24, 2014

In my view, the remedy for an unjust dismissal is to “make” the employee “whole” and compensate her for the losses flowing from the Employer’s breach of the Code. Ms. Sandhu found alternate work quickly and was only unemployed for eight (8) days. Ms. Sandhu is, therefore, entitled to eight (8) days’ pay plus pay for the two days she worked, and for which she was not paid. In my view, on the evidence, the Employer agreed to pay her at an increased rate of pay ($2.00 per hour) following her return to work. I would include that increase in my award, for a total gross weekly pay of $840.00. Ms. Sandhu’s employment is a little shy of six (6) years. In this case, therefore, the Code provides for vacation pay of 4%. For the period January 6-19, Ms. Sandhu is entitled to $1,680.00 plus vacation pay of $67.20, a total of $1,747.20, less applicable statutory deductions.

Supreme Court of Canada denied the employer’s leave to appeal of $60,000 bonus

Dec 14, 2013

Reconsideration – BC Labour Relations Code

Jul 1, 2013

Complainant alleged union violated s. 12 of Labour Relations Code by refusing to pursue grievance over layoff

May 24, 2013

Once it has the relevant information, the union must put its mind to the case and come to a reasoned decision whether to proceed (Judd at paras. 65 and 66). The Union took into account the absence of seniority provisions under the collective agreement and weighing the circumstances put forward by the Complainant in relation to the Employer’s reason for layoff, it decided there was insufficient evidence to support a grievance that the layoff was in fact a disciplinary termination or that the Complainant had been bullied or harassed and that there was a connection between the bullying and harassment and alleged termination. In the circumstances described above, I find the Union put its mind to the case and came to a reasoned decision not to proceed.
As set out in Judd, it is not the Board’s role to decide if the union was right or wrong (at para. 30). Further, Section 12 is not an avenue of appeal of the merits of the union’s decision (at para. 44). In assessing the union’s conduct the Board considers the union’s conduct as a whole, not whether it has committed isolated acts that may fit within the description of arbitrary, discriminatory or in bad faith (at para. 45). In the case at hand, considering the Union’s conduct as a whole I do not find it represented the Complainant in an arbitrary manner within the meaning of Section 12 of the Code. Accordingly, the complaint is dismissed.

Test for reconsideration — Prima facie case.

Mar 15, 2013

Judicial review of bonus – denied

Mar 14, 2013

This matter has been outstanding since November 2008. Mr. Bork resorted successfully to employment standards legislation. He has been denied the benefit of his effort for over four years. While the delay from April 20, 2012 is not inordinately long, the delay overall is extensive. The issue that the applicant seeks to pursue has nothing to do with the merits of Mr. Bork’s entitlement. The proposed appeal is not strong. In my view, it is not in the interests of justice to extend the time to appeal the April 20, 2012 order.
The judge awarded costs on Scale C because the litigation was unnecessarily protracted and included a complex and novel constitutional issue.
The court did not find employer in contempt.

Requirement for some notice under collective agreement

Jan 15, 2013

The only requirement in the Agreement is that there must be some notice. The amount of notice required depends on the particular circumstances of each case. It is, in my view, trite law that the exercise of management rights is subject to a requirement that the employer acts reasonably. In this case, the affected employees received some, albeit minimal, notice of the layoffs. In the circumstances, on the evidence before me, I cannot conclude that the Company exercised its management rights unreasonably.

Whether or not unused vacation time could be lost, vacation pay entitlement could not be lost

Nov 15, 2012

The prohibition in section 21 is a broad based blanket prohibition whose exceptions are few and are apparent in the provision. The circumstances here are not included in those exceptions. The prohibition in section 21 applies to the suggestion in this appeal that if entitlement to annual vacation time off is lost because it has been left unused, then the vacation pay, which to reiterate is wages under the Act, is lost along with it. Section 21 does not allow that result since such would be a deduction or withholding of wages. The effect of section 21(1) in this case is reinforced by section 4 of the Act, which would operate to void any agreement that could be said to result in an employee losing wages to which they were entitled under the Act. The Director did not err in finding Mr. Ducluzeau did not lose his earned and unused vacation pay and was entitled to receive the unpaid amounts of his vacation pay entitlement on termination.

Costs awarded against employer in judicial review

Jun 14, 2012

Director of Employment Standards accepted claimant’s argument that he was entitled to $60,000 bonus associated with completion of rail spur, finding that employer owed claimant $60,000 in wages — Employment Standards Tribunal upheld decision on employer’s appeal and on reconsideration — Employer’s application for judicial review was dismissed — Costs submissions received — Claimant entitled to costs from employer on Scale C — Employer raised seven grounds of judicial review, including constitutional issues going to jurisdiction that were only finally articulated adequately at hearing itself — Matters were inherently complex, but made more complex than they needed to be, and hearing took longer than it ought to have done — There was unexplained delay, unnecessary pre-trial applications, and employer failed to advance case in procedurally appropriate ways — There was no reason to depart from general rule that costs followed event, and novelty and complexity of constitutional issue supported award of costs on Scale C — Record did not support claimant’s argument that employer used delay tactics or attempted to have him abandon petition to frustrate award of bonus — No issue had been taken with claimant’s draft bill of costs and disbursements and so costs would be ordered on Scale C as set out in draft bill.

Court Uphold $60,000 Bonus Award

Apr 23, 2012

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Canwood International Inc. v. Bork, 2012 BCSC 578
Date: 20120420 Docket: S096089 Registry: Vancouver
In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 And In the Matter of the Employment Standards Act, R.S.B.C. 1996, c. 113
Between:
And
Canwood International Inc.
Olaf Bork, Employment Standards Tribunal, Director of Employment Standards and Attorney General of British Columbia

Supreme Court of BC Upholds Dismissal Award

Apr 23, 2012

IN THE SUPREME COURT OF BRITISH COLUMBIA
TELUS Advanced Communications, a Division of TELUS Communications Inc.; TELUS Services Inc. and TELUS Advanced Services Inc.; TELUS Communications, a Division of Telus Communications inc. and Telus Communications (B.C.) Inc.; TELUS Management Services, a Division of TELUS Services Inc. Telecome Leasing Canada (TLC) Limited; and ISM Information Systems Management (B.C.) Corporation; (hereinafter referred to as “TELUS” or “the Company”); TELE-MOBILE Company/Societe TELE-MOBILE and TM Mobile Inc.; (hereinafter referred to as “TELUS Mobility”)

Arbitration Award Upheld – Arbitrator considered evidence, reviewed applicable authorities and came to reasonable conclusion

Dec 31, 2011

The arbitrator may have chosen to give greater or lesser weight to individual pieces of evidence before him, but his finding that the grievor’s absenteeism was excessive can not in any sense be said to fall outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” The arbitrator issued a lengthy award that considered the evidence in detail, reviewed the applicable legal principles and clearly set out his reasons for reaching the conclusion that he did. Viewed in its entirety, the award fully meets the requirement for “justification, transparency and intelligibility.” Other arbitrators may or may not have taken a different view of the evidence and reached a different conclusion, but the decision made by the arbitrator clearly falls within the “range of possible acceptable outcomes.”

Employer Did Not Discriminate Against Employee on the Grounds of Disability

Mar 15, 2011

The Tribunal did not find it reasonable to infer from the evidence that Mr. Forrest’s disability was a factor in the respondents’ decision. After a review of all the credible evidence, the tribunal found that the respondents did not decide to alter the terms and conditions of his employment, in whole or in part, because he was going to be off work for a time due to kidney stones. The terms and conditions of his employment were changed, rightly or wrongly, due to performance issues as perceived by Mr. Bakken. His employment subsequently came to an end only because Mr. Forrest decided to end it, and negotiated a severance package with Mr. Bakken. It is not reasonable to infer that it came to an end, in whole or in part, because of a disability.

Unjust Dismissal – Section 240 Of The Canada Labour Code

Feb 16, 2011

The decision found that the dismissal of a band employee for “restructuring” to constitute unjust dismissal. There was little evidence of actual “restructuring.” The dismissed employee was entitled to “wage loss” for the brief period of unemployment.