In a recent arbitral award, Arbitrator Goodfellow confirmed that the cancellation of two full-time employee’s shifts during temporary slowdowns constituted a layoff within the meaning of the collective agreement. The Arbitrator agreed with the Union, CUPE, Local 139, that the cancellation of shifts was a layoff because it involved a reduction in a full-time employee’s hours of work below the permissible level in the collective agreement. Under this award, the parties agreed to a protocol to use in such circumstances in the future.

CUPE, Local 139 was represented by Wassim Garzouzi and Amanda Montague-Reinholdt of Raven, Cameron, Ballantyne & Yazbeck LLP.

On April 1, 2016, Morgan Rowe spoke to CBC Radio about a recent decision by the Human Rights Tribunal of Ontario that accepted that miscarriage is a disability. In its decision, rendered on March 14, 2016, the Tribunal rejected an employer’s request to have a Human Rights Code complaint dismissed on the basis that the employee had failed to establish the existence of a disability. Morgan represented the employee in the case before the Tribunal.

Morgan’s interview with CBC Radio is available here. CBC has also reported Morgan’s interview here.

On August 21, 2015, an Adjudicator of the Public Service Labour Relations and Employment Board reinstated two long service Parks Canada employees who were terminated for entering a restricted area at a National Park site and swimming in an underground cave pool that contained an endangered species of snail. While Adjudicator Gobeil was satisfied that the grievors had entered the premises knowing that they should not have and swam in the protected habit of the endangered snails, she rescinded the terminations. In determining that termination was not an appropriate sanction, Adjudicator Gobeil considered the 30 years of service of one of the grievors and the 14 years of service of the other grievor. In addition, both grievors had clean disciplinary records and the termination resulted from a single, unplanned incident.

The grievors were reinstated effective the date of the decision.

The grievors were represented by Wassim Garzouzi of RavenLaw.

Andrew Astritis will be speaking at a Council for Canadians with Disabilities (“CCD”) program entitled “Providing Accessible and Quality Legal Services to Clients with Disabilities” on Friday, April 8, 2016 at Gillespie’s Court Reporting at 1300 Slater Street, Ottawa. CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.

Tickets for the program are available here. For more information, please contact vmena085@uottawa.ca

RavenLaw is proud to sponsor an event on the Public Service Alliance of Canada’s struggle for pay equity, co-hosted by PSAC, the Workers’ History Museum, and the University of Ottawa Human Rights Research and Education Centre. The event will take place on December 10, 2015 at the University of Ottawa Alumni Hall, beginning at 5:30 pm for the English event and 7:30 pm for the French event. The event will tell the story of the PSAC pay equity struggle, with questions and answers, as well as entertainment provided by the Just Voices Choir.

In a recent decision, an adjudicator of the Public Service Labour Relations and Employment Board found that the Parole Board of Canada failed to accommodate an employee’s disability, contrary to the Canadian Human Rights Act.  This decision provides important confirmation that employees with mental health concerns must be accommodated by their employers up to the point of undue hardship.

Background

A grievance was filed by Line Emond, a statistics and data quality manager at the Parole Board of Canada, due to emotional stress caused by her fear of a co-worker. The medical evidence presented at the hearing revealed that the grievor’s fear was real and the emotional stress caused by the co-worker’s presence affected her ability to work. She had requested accommodation from her employer permitting her to work anywhere except in the same building as her co-worker.  While the employer offered to move her to an office on a separate floor with additional security, the grievor’s treating physicians agreed that the employer’s proposal was insufficient as the grievor would continue to feel unsafe. The medical evidence demonstrated that this emotional stress affected her memory, concentration and her ability to function normally.

Board’s Decision

In a decision rendered on January 25, 2016, Adjudicator Linda Gobeil allowed Ms. Emond’s grievance. The Adjudicator found that the grievor suffered from a disability or incapacity: the emotional stress suffered by the employee amounted to a disability that triggered the employer’s duty to accommodate. The Adjudicator further found that the employer failed in its duty to provide reasonable accommodation. The Adjudicator found that the employer’s proposed solution was not a reasonable one, and it was reasonable to expect the employer to be able to locate a workspace in another location for the employee. The employer was ordered to find a workspace in another building for Ms. Emond, and Ms. Emond also received compensation for the lost wages and benefits during her time on long-term disability.

As counsel for the grievor, Kim Patenaude, of RavenLaw, told the Ottawa Citizen, the Adjudicator’s decision “has the potential to broaden an employer’s responsibility to provide accommodation” and is a win for employees with disabilities, especially those with mental health concerns.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

With Parliament officially re-opened following the federal election, everyone is watching to see whether the many campaign promises made by the incoming Government will be kept. One area that was the subject of more than its share of pledges was labour legislation. After nearly a decade in power, the Conservatives left behind a raft of anti-union laws that the incoming Liberals have vowed to clean up. Based on open letters and other public statements issued by the Liberals before and during the campaign, labour lawyers and workers’ advocates expect to see the following key pieces of legislation either reformed or repealed by the incoming Government:

Bill C-377

• What it does: this legislation imposed onerous financial disclosure and reporting obligations on all unions in Canada, well beyond those required of charities or non-profits.
• Campaign promise: As an MP, Justin Trudeau opposed this Bill, going so far as to write to the Senate urging it to reject it. (Notably, the Senate did successfully defeat the legislation once, requiring the Government to ignore the rules of the Senate to finally get it passed.) The Liberals have vowed to repeal this legislation.

Bill C-525

• What it does: this legislation changed the rules for certification of federal public and private sector unions, making it more difficult for workers to certify less difficult to decertify. Rather than allowing labour boards to determine that a union enjoyed the support of the bargaining unit based on membership cards, Bill C-525 required a secret ballot vote, while failing to provide the protections necessary to ensure employers could not apply improper pressure on their workers in the lead up to the vote.
• Campaign promise: Trudeau has promised that the Liberals would repeal this legislation.

Bill C-4

• What it does: Among the many laws amended by this omnibus bill, the Public Service Labour Relations Act was amended to give the Government unilateral authority over essential services: this means the government can prohibit employees from participating in a strike on the basis that they perform essential duties, a determination typically made by an independent labour board. This law closely resembled legislation that the Supreme Court of Canada had struck down earlier this year on the basis that it violated the constitutional right to strike. Bill C-4 also amended the definition of danger in the Canada Labour Code, making it more difficult for workers to refuse to perform dangerous work.
• Campaign promise: In an open letter during the campaign, Trudeau stated that Bill C-4 “stacked the deck against workers” and promised to consult with public sector partners and “revisit” this legislation.

Bill C-59

• What it does: Bill C-59 gave the Government the unilateral authority to extinguish employee sick leave banks from collective agreements and replace them with a short-term disability program. These powers allowed the Government to effectively ignore the collective bargaining process and ensure that it succeeded in securing its primary objective in this round of bargaining. The Conservative Government went as far as to preemptively “book” $900 million in savings in the 2015-2016 fiscal year on account of this change, demonstrating its contempt for the collective bargaining process.
• Campaign promise: The Liberals have publicly opposed implementing a new sick leave regime through legislation, and have expressed their commitment to bargaining with the unions in good faith.

Workers and unions will be watching to see whether the Liberal Government follows through on these campaign promises, and to see what form the more abstract commitments will take. For example, will “revisiting” Bill C-4 mean simply restoring the former essential services regime, or will the Liberals develop a new regime in consultation with workers’ representatives?

Beyond formal legislation, the Government has also promised a more positive approach to labour relations generally. This raises its own host of questions, including:

• Will the new Government depart from the Conservatives’ eagerness to interfere in labour relations through back-to-work legislation:
• Will the Liberals take steps to establish a proactive pay equity regime in line with the 2004 recommendations of the federal Pay Equity Task Force?
• Will the Government protect the right of public service employees to do their work free from political interference?

It will take years to fully assess the Government’s ability to restore trust and respect to federal labour relations. In the meantime, workers will look for early signs that the Government will follow through on the clear commitments it made in its efforts to get elected.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

In a decision rendered on January 25, 2016, adjudicator Linda Gobeil of the Public Service Labour Relations Board concluded that the Parole Board of Canada failed to accommodate a grievor suffering from “emotional stress” in a manner consistent with the requirements of Canadian Human Rights Act.

The adjudicator found that the emotional stress suffered by the employee as a result of her proximity to a particular co-worker amounted to a disability that triggered the employer’s duty to provide reasonable accommodation. The employer was ordered to find workspace for the grievor in another building and to compensate her for lost wages and benefits during the relevant time frame.

The grievor was represented by Kim Patenaude of RavenLaw, who told the Ottawa Citizen that the Adjudicator’s decision “has the potential to broaden an employer’s responsibility to provide accommodation” and is a win for employees with disabilities, especially those with mental health concerns.  For more information, click here.

Our office hours during the holidays are as follows:

December 24 – closed at noon

December 25-28 – closed

December 29-30 – opened

December 31 – closed at noon

January 1 – closed 

Thank you and Happy Holidays.