Decisions
TWU V. TELUS – limits to accommodation of chronically absent employee
The decision upholds the dismissal of an employee with excessive absenteeism, suffering from episodes of major depression and chronic low-grade depression, together with a multitude of other physical and mental conditions not known to the employer. The decision deals with limits to accommodation.
read moreEmployer’s conversion of position into fixed term and assignment to less expensive employees not constituting restructuring
There was precious little evidence to support that Ms. Morrison’s position as Recreation Coordinator was “restructured.” No member of the Band Council involved in the decision testified. Ms. Shannoss was not involved in the decision. There was little evidence as to the activities of the “office,” or job, before or after. The explanation that the “restructuring” was still ongoing, does not, assist the Band’s position. The only aspect advanced by the Band was the notion that it wanted offer more sport, but on ail of the evidence, that was also done when Mr. Morrison was employed. In a general sense, I appreciate the Band’s apparent concern about budgets. On that point there was, in any event, no evidence, other than the foregoing “concern.” I also appreciate its concern about sharing employment opportunities among the band members. However, the bottom line here is that this was no more than the conversion of Ms. Morrison’s position into a 12-months fixed term position and have the work done by other, new employees (at less costs). This, in the circumstances, does not constitute a “restructuring.”
read moreDecision In Wu V. Rbc Upheld In Federal Court Of Appeal
The respondent’s misconduct was serious, premeditated, deliberate and occurred over a long period of time. As he said, it was not a “momentary and emotional aberration”. He noted that the respondent had a discipline free record and was a “good and dedicated employee”, but a short-term employee. He added that the respondent was not singled out for any special or harsh treatment. He also found that the respondent refused to take responsibility for her actions, instead blaming the appellant for allowing her to commit the violations of the Bank Code of Conduct. Accordingly, he ruled that the penalty imposed by the employer was not excessive.
read morePartial Decertification
Partial decertification involves the exercise of the Board’s discretion and represents an exception to the majoritarian principle governing the cancellation of bargaining rights under Section 33 of the Code
read moreBC Labour Relations Board Excluded American Employees From The Bargaining Unit
The Board was not satisfied on the submissions before me that a bargaining unit including the foreign national employees is conducive to the orderly and constructive negotiation or administration of a collective agreement. The foreign nationals’ terms of employment for work done at the Vancouver campus is governed by the Collective Agreement. It follows that the Employer and foreign national employees, who act in compliance with the collective agreement and Code provisions governing the proposed unit, may be acting inconsistent with the Collective Agreement and vice versa. For example, individuals lawfully on strike under the Collective Agreement may be simultaneously compelled to work under a collective agreement for the proposed unit. These employees would be exposed to potential repercussions with their respective unions if they ignore the dictates of one regime out of respect for another. Other examples of discord arise with respect to the administration of discipline and discharge as well as collective agreement provisions governing hours of work, etc. There is also a real potential for conflicting arbitration awards between the collective agreement regimes. This serves to undermine the effectiveness of grievance arbitration as a method for the final and conclusive resolution of disputes. For these reasons I do not find the proposed unit as it is presently described, is appropriate for collective bargaining.
read moreDecision – Independent Medical Report Ordered
However, an arbitration is an adversarial process, based on the “assumption that truth is best discerned through this sort of evidentiary contest” (Canada Post, § 8). The Union has put the Grievor’s mental condition in issue by giving notice that it intends to call Dr. Mallavarapu and introduce his report, based on his examination of the Grievor. That evidence and the report will also intrude on the Grievor’s privacy. I recognize that Telus, as argued by the Union, kept comprehensive medical records with respect to the Grievor during her employment, including through its absenteeism management program, and it knew about her medical conditions. All the same, the IME requested may be necessary so that counsel can be properly instructed for the cross-examination of the Union’s experts, and for the preparation of the expert testimony it may decide to lead. I agree with Telus that I likely will be asked at the end of hearing to choose between the opinions of the Union’s medical experts, who have examined the Grievor, and the Employer’s expert who has not. Generally, the report from an expert, who has examined an individual, will carry more weight than the report from on who has not. In my view, deficiencies in the medical evidence may not, as argued by the Union, be adequately addressed in cross-examination. As noted in Canada Post, quoted above: “If one side has access to experts who have examined the grievor and the other side does not, an unfairness manifests itself in an inability to adequately understand the medical evidence as it relates to the individual, an inability to adequately cross examine on critical points and an inability to call contradictory evidence.” Thus, if I deny the Employer’s application, the evidence of the Union may well go untested because of the inability to the employer to effectively cross-examine or to call contradictory evidence. I am not satisfied, the circumstances, that directing the Employer to seek further or additional information from the Union’s expert, as suggested in Overwaitea Foods, satisfies the fair hearing requirements. The fact is that the Union has its own expert. This places the employer at a disadvantage, which is prejudicial to its right to a full and fair hearing.
read moreEmployer Did Not Discriminate Against Employee Returning From Maternity Leave
Employer terminated employee’s employment because, as a result of a significant downsizing, it did not have a position for her to return to. The employer submits that had employee not been on maternity leave her employment would have been terminated earlier. It terminated her employment at the completion of her maternity leave.
read moreDid the Employee Quit?
There is no disagreement in the evidence that Mr. Arpe left YVR’s office with the words “thanks for making me homeless.” In fact, I accept Mr. Hutchison’s characterization that Mr. Arpe “stormed” out of the office. Both his and Ms. Kuzyk’s evidence is consistent that Mr. Arpe was very angry. In all of the circumstances, including Ms. Kuzyk’s evidence, I believe it is unlikely that Mr. Arpe at that time told Mr. Hutchison that he “needed his ROE and wanted it within 48 hours.” The Employer did not dismiss the Employee.
read moreHuman Rights Tribunal – Application to Dismiss Denied
Release entered into by Meridian and Ms. La Saw to resolve an outstanding commission issue, leads to the conclusion that it would not further the purposes of the Code to proceed with Ms. La Saw’s complaint. I therefore deny the respondents’ application to dismiss the complaint. Her complaint of discrimination in employment on the basis of sex continues before the Tribunal.
read moreVanASEP (Aboriginal Skills Employment Partnership) Training Society – Complaint under Provincial Jurisdiction
Although the Society provides services to Aboriginal people, this fact, in and of itself, does not make it a federal undertaking. What must be decided is whether “the operations of the Society touch upon the ‘core of Indianness’ – a core made up of matters integral to aboriginal or treaty rights, aboriginal culture, or Indian status”: NIL/TU,O Child and Family Services Society v. BCGEU, 2008 BCCA 333 (CanLII), para. 57. The Court also stated that “primary provincial jurisdiction over labour relations is not ousted simply because enterprises engage the interests of aboriginal groups, or provide services in a manner that is culturally sensitive” The Society was incorporated to provide education, training and job opportunities to Aboriginal people. In my view, these activities do not touch upon the “core of Indianness”.
read moreWhen the driver was told to clean out the truck that was equivalent to being fired
In the circumstances, I prefer Mr. Jansen’s evidence that he was given a choice of completing the trip or being fired. Whether or not Mr. Jansen had, in fact, told the dispatcher about having to return on November 24, or not, the customer was an important one to the employer, and it was common ground that the trip to Paris, Ontario and to Prince George, BC would be a “tight squeeze” in those circumstances. Both Mr. Jansen and Ms. Churchwell’s evidence suggest that the dispatcher was swearing at Mr. Jansen. I accept that the dispatcher became “unglued” and told Mr. Jansen to go to Ontario or “bring the fucking truck back … and clean [it] out.”
read moreUnjust Dismissal under the Canada Labour Code
The Employer was rightly concerned about the delay in Mr. Snyder’s disclosure of the particulars. The employer noted that the particulars are not unduly onerous and that Mr. Snyder should be able to complete them within a relatively short period of time. The Employer emphasized that it had first requested the particulars back in November of 2006 and that Mr. Snyder had not cooperated with the process that he had initiated through the complaint under the Canada Labour Code. The Employer argued that fairness required the disclosure of the particulars to allow it to prepare properly for the hearing. The Employer anticipated that in response to the particulars, it would likely require production of medical files and other documentation arising out the particulars. The Employer also anticipated the potential need for expert evidence. In short, in the circumstances, the Employer was concerned about the ability to prepare properly for the hearing, a little more than a month away.
read moreUnjust Dismissal under the Canada Labour Code
In order to facilitate and orderly and efficient use of hearing time, and to avoid costly and unnecessary adjournments, I encourage both parties to disclose and produce relevant documents, including, but limited to such documents as the parties intend to rely on at the hearing, and the names of witnesses, to the extent possible.
read moreAppeal by Whitaker Consulting Ltd. (the “Employer”) under s. 112 of the Employment Standards Act
Determination is confirmed as it relates to the $500.00 penalty imposed for the Employer’s contravention of s. 28, and it is cancelled as it relates to the compensation for length of service issue. The Respondent’s complaint regarding compensation for length of service is referred back to the Director of Employment Standards for a new investigation or oral hearing before a different delegate.
read moreUnjust Dismissal – Canada Labour Code –
On the balance of probabilities and considering all of the evidence, I am not satisfied that the Employer has met its burden to show that it had just cause for the termination of Ms. Haigh. In my view, Mr. Ismail was firmly of the view that there was an inappropriate relationship between Ms. Haign and Driver A, and he acted on that view, terminating Ms. Haigh. In my view Ms. Haigh’s conduct was more likely, as she characterized it, an error in judgement.
read moreTermination – Insubordination – Canada labour Code
The manner in which Mr. Bussey chose to vent his disagreement with the Employer amplifies his conduct. When he asked,”are we going to discuss wages now” — as explained by Ms. Poolton, he did not do it in a “nice” tone. This was unprovoked. He was then told by Mr. Stewart that this was not the time, and that Mr. Stewart would talk to him later about it. Rather than accepting this, he embarrassed the Employer’s representatives further by his outburst: “If I’m not getting the same rate, I’m refusing to do motor vehicle inspections.” Mr. Bussey left the office with the words “you bet, we will,” slamming the door shut. This was unacceptable conduct. The Employer’s witnesses testified that the inspector appeared shocked. He may have been. Mr. Bussey testified that he was not. The inspector did not testify. I do not think much turns on the inspector’s reaction. His conduct was disruptive, insulting, unacceptable and served to undermine Mr. Stewart. In my opinion, Mr. Bussey’s conduct and comments undermined the Mr. Stewart’s, and the Employer’s, authority in the work place. He embarrassed the Employer in a very public manner. (See also Clare v. Moore Corp. (1989), 29 C.C.E.L. 41 (Ont. Dist. Ct. ))
read moreDirector or Officer – Independent Contractor – Employer Associated – BC Employment Standards –
The Delegate considered and based her Determination on the definition of “employee” and “employer” in the Act. It appears, as well, that she also considered the definition of a “taxi driver” and notes that lease drivers are specifically regulated in the Employment Standards Regulation (Section 37.1). Finally, the Delegate considered the various common law tests. The Delegate accepted that none of the tests are independently determinative and that all of the circumstances have to be considered.
read moreHuman rights complaint dismissed against individual respondents of company
In the Matter of the Human Rights Code R.S.B.C. 1996, c. 210 (as amended) In the Matter of a complaint before the British Columbia Human Rights Tribunal Saranya Scheumann, Complainant and Ron Hardman, Zeenat Mohamed, Kari Yuers, Ron Yuers, and Kryton... read moreAppeal of Arbitration Award – BC Labour Relations Code
The union has the carriage of the grievances and can agree to settle, even if Messrs. Byers and Hoogstins or other bargaining unit employees disagree with the assessment of competing interests and risks the union made before agreeing to settle or are unhappy with the terms the union has negotiated. The union has had to make the difficult choice between competing interests among bargaining unit employees. It might create a conflict with some of the employees it represents by choosing to support one interest over the other. By negotiating this settlement, it accepts the risk that no bargaining unit employee might be happy and that it might create conflict with several employees. The union has made a difficult choice and, at the same time, negotiated protections for Messrs. Byers and Hoogstins.
The union has not acted in an arbitrary, discriminatory or bad faith manner in choosing to settle rather than proceed through arbitration with its risks and knowledge of an arbitration board’s inability to alter the terms of a collective agreement. Settlement is the most desirable resolution of disputes in the grievance arbitration process and it is an arbitration board’s duty to encourage, foster and sponsor settlements between unions and employers. There are situations where an agreed settlement should not be sanctioned by an arbitration board. This is not one of them and, despite the protestations of Messrs. Byers and Hoogstins, there is no reason for this consent award not to be issued. (Award, p. 4)
read moreWages and Travel Time
At the outset of this part of the decision, I referred to the burden on appeal. Despite having been through a two day hearing in October and November 2001, and the Delegate’s investigation both before and after that, the arguments made by Ms. Church on behalf of the Employer are not readily transparent, the word “confusing” comes to mind. The documentation is “very unclear and inconsistent”. It is not for me, as the Adjudicator, to attempt to make the case for either of the parties. That responsibility rests ultimately with the parties. It is for the Appellant to show on the balance of probabilities that the Determination is wrong and, in my opinion, she has not met that burden. In the result, the appeal is dismissed.
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