On April 26, 2016, the Federal Court of Appeal rendered its judgment in Bahniuk v Attorney General of Canada, 2016 FCA 127, allowing the appeal from the judgment of the Federal Court and setting aside a portion of a remedial award made by an Adjudicator of the Public Service Labour Relations Board. The appeal related to the Adjudicator’s decision to reduce the award for compensatory damages for unjust termination by all monies earned by the employee, Stanely Bahniuk, between the date of the termination and the date of the Adjudicator’s decision. This reduction was made by the Adjudicator despite the fact that Mr. Bahniuk did not earn income during the 14-month period to which the compensatory damages related.

In its decision, the Court confirmed that amounts set-off from contractual damages on account of mitigation must be referable to the loss for which damages were awarded. The Court was satisfied that the Adjudicator unreasonably set-off the amounts earned by Mr. Bahniuk in the time after the 14-month period for which he received compensatory damages for the unjust termination.

Mr. Bahniuk was represented by Andrew Raven and Amanda Montague-Reinholdt of Raven, Cameron, Ballantyne & Yazbeck LLP.

It is an established principle in labour law that an employer cannot impose more than one penalty for the same offence – but what constitutes a penalty? That was the issue at the heart of Collège Boréal, an arbitral award released on July 23, 2015, where an employee appeared to receive two sanctions for the same event.

The grievor was tasked with accompanying college students at a hockey tournament in Toronto, where several incidents involving alcohol consumption and on-ice altercations took place. Upon returning to the College, the grievor failed to disclose these events. After meeting with his supervisor, he was advised, by email, that a note would be placed on his employee file due to his lack of judgment. Roughly two weeks later, the grievor was placed on administrative suspension, and terminated shortly thereafter.

During the hearing, the employer argued that the supervisor’s email did not constitute discipline, and therefore, the College was not barred from imposing a subsequent penalty – in this case termination. In assessing whether the email constituted discipline, Arbitrator Kathleen O’Neil applied “an objective interpretation”, without “placing emphasis on the intention” of the supervisor. The email was deemed disciplinary and therefore, the employer was barred from imposing a second disciplinary sanction for the same events. The Arbitrator nonetheless added supplemental discipline for events that were not properly covered by the email.

The grievor was ultimately reinstated.

OPSEU, Local 672, was represented by Wassim Garzouzi of Raven, Cameron, Ballantyne & Yazbeck LLP.

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