Law Commons^™

The Contract Of Employment At The Supreme Court Of Canada: Employee Protection And The Presumption Of Employer Freedom, Gillian Demeyere

Dalhousie Law Journal

This article critically examines the Supreme Court of Canada's treatment of the contract of employment in its wrongful dismissal jurisprudence over the last 25 years, with the aim of challenging the view that only by exempting the contract of employment from the ordinary workings of contract doctrine or by resorting to public policy considerations can the common law of dismissal provide adequate protection for employees. The Court's jurisprudence reveals a commitment to what this paper calls the presumption of employer freedom, a view of the contract of employment which has its origins in the status-based master and servant relationship and …

Collective Bargaining In The Shadow Of The Charter Cathedral: Union Strategies In A Post B.C. Health World, Michael Macneil

Dalhousie Law Journal

For the first twenty-five years after the Canadian Charter of Rights and Freedoms was enacted, it appeared that it would have little impact on Canadian labour laws. The Supreme Court of Canada took the view that the guarantee of freedom of association in the Charter did not include a right to strike and did notprovide protection for collective bargaining. Common law rules regulating picketing did not come within the scope of the Charter's rules on freedom of expression. Academic commentators were divided on whether this was a good or a bad thing, some espousing the hope that the Charter could …

Non-Majority Union Representation Conforms To Ilo Freedom Of Association Principles And (Potentially) Promotes Inter-Union Collaboration: New Zealand Lessons For Canada, Mark Harcourt, Helen Lam

Dalhousie Law Journal

North American union certification violates workers' freedom of association, a fundamental human right well established by the International Labour Organization (ILO); by denying workers the right to be represented when a majority of their co-workers does not favour a union. In Canada, the Supreme Court has drawn on ILO standards to recognize a constitutional right to bargain collectively and organize as part of freedom of association under section 2(d) of the Charter of Rights and Freedoms. However, such recognition of the ILO principles has, as yet, to translate into legislation that would provide non-exclusive, non-majority union representation, at least in …

Nlnu V Eastern Regional Integrated Health Authority, Innis Christie

Innis Christie Collection

This is a policy grievance regarding the Employer's Attendance Management Program. The Union does not believe some sections conform with the Collective Agreement. The Employer is willing to accept guidance if some aspect of the Program is inconsistent with the Agreement.

The grievance succeeds in part. The grievance is dismissed except that the Employer is directed to amend the written policy to reflect the manner in which the policy is actually applied. Jurisdiction is retained to assist with the implementation of the award, if needed.

Cep V Bell Aliant Regional Communications Llp, Innis Christie

Innis Christie Collection

This is a policy grievance brought by the Union because the Employer refused to allow employees, who were accepting an early retirement package, to include outstanding vacation time as time served. The Union wanted the remedy to include a recalculation of entitlement for the relevant employees, a declaration that the Employer had violated the Agreement and an order that eligible employees be allow to reconsider their choices based on this decision. The Employer's interpretation hinged on the fact that the departure date was subject to the Employer's approval.

Re Izaak Walton Killam Health Centre And Nsgeu (P-05121), Innis Christie

Innis Christie Collection

This is a union policy grievance regarding the Employer's approach to the compensation of employees for time lost on storm days. The Employer was compensating only if the time lost was for less than two hours. The Union believed that the Employer should pay for the first two hours. The Union seeks full redress, including retroactive compensation. The Employer agreed to the requested remedy if the Grievance is successful.

The grievance fails. The Union could not prove its interpretation of the relevant clauses of the Collective Agreement.

Re Rk Macdonald Nursing Home Corp And Caw, Local 2107, Innis Christie

Innis Christie Collection

The four Grievors were in receipt of Long Term Disability (LTD) benefits and also in receipt of Supplementary Health Expense Benefits under their Maritime Life Policy. The Grievors were terminated for innocent absenteeism. The LTD payments continued, but the supplementary benefits stopped because they were no longer employees.

Re Canada Post Corp And Cupw (078-00-00032), Innis Christie

Innis Christie Collection

This is a policy grievance to determine whether the Employer may use temporary employees to cover extra absences on annual vacation that result from senior employees taking more than four consecutive weeks of vacation. The parties are agreed on the facts, and there is no extrinsic evidence to consider; the Arbitrator is asked to interpret the words of the Agreement and give effect to the intention of the parties.

The grievance fails. The Employer's interpretation is not inconsistent with other articles of the Agreement.

Re Abt Building Products Canada Ltd. And Cep, Local 434, Innis Christie

Innis Christie Collection

This is a policy grievance to determine the work the Spare Boiler Operator may perform. The Employer stated that it intended to assign duties to the Spare Boiler Operator as it saw fit, in order to keep him employed. These duties were not related to steam and boiler operation; they were jobs properly performed by a labourer. It is the position of the Employer that it may assign whatever maintenance duties it wishes to those in the Maintenance Department, so long as no senior employee is displaced. The Union's position is that the function of the Spare Boiler Operator is …

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

Union national policy grievance dated November 25, 1998, alleging breach of the Collective Agreement between the parties bearing the date January 31, 1995, and in particular of Article 12, in that in announcing the creation of its "Simplified Registered Mail Service" project, the Employer indicated that new positions created under this project would not be preferred assignments although, the Union alleges, the work in question corresponds with the duties of a preferred assignment within the meaning of Article 12. The Union requests a declaratory decision that the work in question be performed in registration sections by PO4's in preferred assignments, …

Arbitration Under The Canada Labour Code: A Neglected Policy And An Incomplete Legislative Framework, James E. Dorsey

Dalhousie Law Journal

Arbitration under the Canada Labour Code' is an elusive subject. There is not independent text on law in the federal jurisdiction, where grievance arbitration is a neglected policy operating within an imcomplete legislative framework. The lack of prominence of a federal body of arbitral law and practice is readily exemplified by the fact that the federal law influence is frequently ignored or overlooked. A pertinent example is a 1976 case involving British Columbia Telephone Company and the Federation of Telephone Workers of British Columbia in which an arbitration board of three prominent members of the bar proceeded pursuant to the …