It has long been established in labour arbitration jurisprudence that, when presented with a grievance concerning discipline, the employer bears the onus of demonstrating just cause for that discipline. In order to determine whether there is just cause for termination or another disciplinary sanction, Arbitration Boards will consider several factors which include, not only the factual circumstances, but also any aggravating and mitigating factors.

Recently, an Arbitration Board in Nova Scotia failed to properly apply the onus when considering whether an employer had just cause to terminate a unionized employee. In arriving at its conclusion to dismiss the grievance, the Arbitration Board found as follows:

Having found that the Employer had grounds to discipline the Grievor there remains the question of whether the termination of the Grievor was the appropriate response.

The onus is on the Grievor to show mitigating factors that should be taken into account if the penalty of discharge is to be substituted with another penalty.

The employee’s union, the Public Service Alliance of Canada, was concerned about the latter paragraph which indicated that the Arbitration Board improperly shifted the onus to the employee to prove that termination was not the appropriate penalty. The union applied for judicial review of the Arbitration Board’s decision to the Supreme Court of Nova Scotia. In its decision, Public Service Alliance of Canada v Commissionaires Nova Scotia, 2014 NSSC 286, the Court agreed with the union, holding:

The Board did not engage in the necessary analysis of the grounds for discipline, whether the misconduct was sufficiently serious to warrant a penalty as severe as discharge. The Board did not articulate both mitigating and aggravating factors and weigh these against the seriousness of discharge to determine if the respondent had met its burden.

The Board seems to have assumed the seriousness of the conduct warranted the penalty of discharge and then looked to the appellant to show why anything but discharge should be considered.

This is not the appellant’s burden. The Board has failed to discuss the substitution of the lower penalty by reviewing any mitigating factors, except long service. The Board did not weigh other factors in evidence, such as a previously clear discipline record or evidence of good character. Had the Board performed this analysis they may well have still concluded that no lesser penalty was appropriate, particularly in light of the grievor’s outright denial and lack of remorse.

The burden of proof on the employer in discipline and discharge cases is important: the relevant information regarding why the employee was terminated usually resides almost exclusively in the hands of the employer. Moreover, in the unionized context, where employees may only be terminated with just cause, employers must be held to their onus of proving that just cause existed when the union challenges the basis for the termination.

While one might assume that the onus in discipline cases is well established, and Arbitration Boards will properly apply the burden of proof, the judgment of the Supreme Court of Nova Scotia in this case affirms that the courts are willing to intervene on judicial review to ensure that arbitrators do, in fact, approach disciplinary grievances in the appropriate fashion.

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

On January 30, 2015, Adjudicator François Bastien, appointed pursuant to the Canada Labour Code, issued an important decision impacting all employees with supervisory duties working in federally regulated sectors.

Generally, employees who are unjustly dismissed can bring a complaint and have their grievance heard by an adjudicator appointed under the Canada Labour Code. Managers cannot avail themselves of this process.

In Timiskaming First Nation, the Employer brought a preliminary objection alleging that the employee, who worked as the Director General of the First Nation Government, was a manager. The Employer asked the Board to dismiss the complaint.

In dismissing the employer’s objection, the Board confirmed that “it is important to keep in mind that underlying it, is the notion underscored by the Federal Court […], that while undefined in the Code, ‘manager’ is a term that ought to be narrowly construed under that Code.” The Board further endorsed the fact that a broader interpretation of the term “manager” could exclude many employees from the benefits of the unjust dismissal provisions of the Code.

This decision underscores the importance of reviewing the particular context of every workplace before making a determination as to whether an employee can properly be characterized as a “manager” under the Code. The Board fully recognized that the employee in question performed many functions at a high level – but nonetheless dismissed the Employer’s objection on the basis that her role fell short of the test of independent action over a significant range of matters.

Through this decision, the Board provides all employees with supervisory duties working in federally regulated sectors much needed clarity with respect to their rights under the Code.

The employee in this case was represented by Wassim Garzouzi of Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.

In a recent decision, the Supreme Court of Nova Scotia quashed an arbitrator’s decision concerning employees’ entitlement to vacation leave in the collective agreement between the Public Service Alliance of Canada (“PSAC”) and Sydney Airport Authority. At issue before the arbitrator was whether the agreement provided that employees on ‘sick leave with pay’ continued to accrue vacation credits. The arbitrator found they did not. PSAC challenged this decision and the reviewing court concluded that the arbitrator’s award was unreasonable. The Court explained that the arbitrator failed to undertake a fulsome analysis of the intentions of the parties within the four corners of the agreement and apply the necessary interpretive principles.

PSAC was represented by Andrew Astritis and Michael Fisher.

On February 10, 2015, Andrew Raven and Andrew Astritis wrote a guest blog post for the Broadbent Institute on the Supreme Court of Canada’s recent decision confirming the right to strike in Saskatchewan Federation of Labour v Saskatchewan. The blog post, available here, provides a summary of the Court’s decision and its broader implications for the labour movement.

This week, David Yazbeck is participating in the Canada Industrial Relations Board (“CIRB”) Consultation Committee as the Canadian Association of Labour Lawyers (“CALL”) nominee. The Consultation Committee is an ongoing dialogue and consultation process between the CIRB and the labour community, established for the purpose of canvassing labour and management sides with respect to their expectations regarding industrial relations issues that concern them. The Consultation Committee includes members from CALL, the Canadian Labour Congress, Confédération des syndicats nationaux, the Canadian Association of Counsel to Employers, and Federally Regulated Employers in Transportation and Communications Organization, as well as the Chairperson and representatives from the CIRB.

On February 13, 2015, Wassim Garzouzi spoke at the Network of Persons with Disabilities, organised by Reach Canada on the topic of “Duty to accommodate: Family Status.” The bilingual event was attended by over 250 participants from across the country.

Reach Canada has offered lawyer referrals and public education for individuals living with disabilities since 1981. Our firm is a long-term, proud supporter of REACH and its mission to improve the quality of life for citizens with disabilities.

On February 23 and 24, 2015, artists across Canada overwhelmingly voted to ratify Canada’s first scale agreement for visual artists at the National Gallery of Canada. As the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC), explains

Major gains have been advanced for artists through this agreement, which sets out mandatory minimum fees and working conditions offered to artists by the gallery. Artists remain free to negotiate above these minimums, but they can never be offered less.

The agreement between the National Gallery and CARFAC and the Regroupement des artistes visuels du Québec (RAAV) will be in place for three years.

The ability of CARFAC/RAAV to reach this historic agreement is due in large part to the Supreme Court of Canada’s decision in Canadian Artists’ Representation v National Gallery of Canada in June, 2014. CARFAC/RAAV were represented by David Yazbeck, Michael Fisher and Wassim Garzouzi from RavenLaw in this successful appeal to the Supreme Court.

On November 20, 2014, the Stronger Workplaces for a Stronger Economy Act, 2014 (formerly Bill 18), received royal assent in Ontario, but some of the enacted changes to the Employment Standards Act were delayed coming into force. Tomorrow, February 20, 2015, important changes to employment law legislation will take effect.

Elimination of the $10,000 cap on recovery for unpaid wages

Previously, there was a $10,000 maximum cap on orders for unpaid wages to an employee under the Employment Standards Act. Pursuant to the changes in Bill 18, there is no longer a monetary limit on employment standards officers’ orders for wages, and employees will no longer be forced to pursue larger claims through the courts.

Increase to time limits to bring complaints for unpaid wages or vacation pay

Additionally, the amendments in Bill 18 that are about to come into force will increase the time limits on when an employee can file a complaint to recover unpaid wages to two years from the previous six month limitation period. The time limit within which vacation pay can be recovered under the Act has also been increased to 12 months from six months. These changes are subject to a two-year transition period regarding claims that arose before these amendments came into effect.

Contact us about using the Employment Standards Act complaint mechanism

If you believe you may have a claim for unpaid wages or vacation pay, you should consult the employment law lawyers at Raven, Cameron, Ballantyne & Yazbeck LLP to determine the best means of recourse, recognizing that these legislative changes may allow for a practical and effective means of recovery by bringing a complaint under the amended Employment Standards Act regime.

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

David Yazbeck has been confirmed as a speaker for Funding Democracy, an international summit being held in Ottawa on June 16 – 17, 2015. The event will bring together some of the brightest, most progressive minds from around the world to discuss issues of austerity, tax reform and funding public services. The summit is designed to unite workers, employers and industry representatives from across the world to find practical, achievable and sustainable legislative alternatives to austerity measures during this global economic crisis. David will be speaking on the topic of whistleblowing.

On February 11, 2015, Arbitrator Randi Abramsky issued a decision interpreting the job posting provisions under the central agreement between Ontario Hospitals and the Ontario Council of Hospital Unions/CUPE. Specifically, Arbitrator Abramsky found that postings, whether electronic or paper, must be accessible to ensure that the purpose of these provisions – which is to ensure that Unions and employees are aware of available bargaining unit openings so they may apply for them and exercise their seniority rights – is met.

For over thirty years, the practice at the Health Sciences North (“Hospital”) was to post job opportunities on a physical bulletin board. In 2013, the Hospital unilaterally ended this practice and began posting job opportunities exclusively through a web portal that it had developed. The new system was complex and required employees to follow several steps before being able to access the job postings. The Canadian Union of Public Employees (“CUPE”), Local 1623, challenged the Hospital’s decision as many of its members were unable to access the new system.

Arbitrator Abramsky concluded that there was “evidence that some senior employees’ ability to exercise their seniority to apply for job postings has been diminished by the new online posting system.  The system utilized requires at least a minimal level of computer-use knowledge to access job postings. It is far less accessible […]”

The arbitrator ordered the Hospital to use a posting system that employees are able to access and consequently, “for the time being and until a more accessible electronic system is devised, the Employer must continue to post job openings on the physical bulletin board, in addition to posting them online.”

CUPE, Local 1623 was represented by its President, Dave Shelefontiuk, and Wassim Garzouzi from our firm.