Labor and Employment Law Commons^™

Charting The Boundaries Of Labour Law: Innis Christie And The Search For An Integrated Law Of Labour Market Regulations, Harry Arthurs

Dalhousie Law Journal

What an honour it is to deliver the first Innis Christie lecture in labour and employment law. My career and Innis' developed in parallel. Our very first publications dealt with tort liability for strikes; our early research dealt with collective labour law; we worked together on a labour law casebook; we both shuffled sideways from labour law into administrative law and lurched from there into legal ethics; we both became labour mediators and arbitrators and then-a logical progression-deans of law. Finally, we both worked on government policy studies, starting with the Woods Task Force in the mid-1960s, though Innis became …

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 …

Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier

Dalhousie Law Journal

The author concludes that the Supreme Court of Canada's narrow interpretations in Wal-Mart and Honda undermine the purposes of collective bargaining and human rights legislation, respectively Wal-Mart involves an unfair labour practice complaint following the closing of a store in Jonquibre, Quebec. The author contests the analysis of the Supreme Court of Canada, as being far removed from the context of the real difficulties in dealing with determined anti-union employers, instead facilitating statutory evasion. Honda involves a claim for wrongful dismissal, where the issue at the Supreme Court of Canada level is one of remedy, premised on the dismissal amounting …

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 …

Why The Right-Freedom Distinction Matters Tolabour Lawyers-And To All Canadians, Brian Langille

Dalhousie Law Journal

This lecture is about very basic legal ideas such as rights, freedoms, and the distinction between them. It makes the argument that clear thinking about these basic ideas is required and that when these ideas are neglected we have a recipe for real legal confusion. More than that, a failure to attend to these basic concepts and their relationship can produce, as it has in recent Supreme Court of Canada Charter cases on "Freedom of Association," a real threat to the fundamental freedoms of all Canadians

The Maritime Labour Convention, 2006 – Reflections On Challenges For Flag State Implementation, Moira Mcconnell

Articles, Book Chapters, & Popular Press

This paper begins by providing a brief overview of the International Labour Organization’s Maritime Labour Convention, 2006 (MLC, 2006), noting that this Convention, often called the “Seafarers’ bill of rights”, seeks to achieve both social and labour rights (“decent work”) for seafarers and fair competition (achieving a level-playing field) for shipowners. It has been described as the “fourth pillar” of the international maritime regulatory regime complementing the major International Maritime Organization conventions. The paper provides a brief update on international efforts to achieve the 30/33 formula needed to bring the Convention into force [at present, the tonnage element, 33% …

Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier

Dianne Pothier Collection

The author concludes that the Supreme Court of Canada's narrow interpretations in Wal-Mart and Honda undermine the purposes of collective bargaining and human rights legislation, respectively Wal-Mart involves an unfair labour practice complaint following the closing of a store in Jonquibre, Quebec. The author contests the analysis of the Supreme Court of Canada, as being far removed from the context of the real difficulties in dealing with determined anti-union employers, instead facilitating statutory evasion. Honda involves a claim for wrongful dismissal, where the issue at the Supreme Court of Canada level is one of remedy, premised on the dismissal amounting …

Tackling Disability Discrimination At Work: Toward A Systematic Approach, Dianne Pothier

Dianne Pothier Collection

Approaching disability discrimination in systemic terms is the most fundamental challenge that disability human rights law currently faces. Achieving fundamental change in relation to disability at work necessitates challenging able-bodied norms. To that end, a social construction of disability entails adapting the environment to meet the needs of those with a variety of dis-abilities. Tackling disability discrimination requires contesting what is deemed “normal” be­cause it is the way most able-bodied persons function, necessitating a thorough understanding of adverse effects discrimination, which looks behind purportedly neutral practices to uncover detrimental effects on those who do not function “normally”.

The fact that …

Precarious Pathways: Evaluating The Provincial Nominee Programs In Canada, Jamie Baxter

Articles, Book Chapters, & Popular Press

Temporary foreign workers in Canada experience substandard employment relationships, are explicitly denied many formal rights and are practically excluded from most employment protections. Led by a growing emphasis on workers’ temporary status as a root cause of their employment-related vulnerabilities, some advocates, as well as elected officials, are now calling on governments to improve opportunities for workers to attain permanent residency in Canada, primarily for those in lower-skilled occupations. The central aim of this paper is to evaluate whether Provincial Nominee Programs are likely to address the real insecurities faced by vulnerable lower-skilled temporary foreign workers. Given that there are …

Re Farmers Co-Operative Dairy Ltd And Unifor, Local 40n (Giles), Innis Christie

Innis Christie Collection

The Grievor was discharged due to theft, fraud and breach of trust. The Union believes the discharge was unjust since an addiction to gambling suggests accommodation would be appropriate. The Grievor seeks reinstatement with full compensation for lost wages and benefits.

The grievance fails. The theft was premeditated and repeated. There is no evidence that the behaviour would not be repeated.

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

The Grievor was initially discharged for being absent without leave. After the first arbitration hearing the Grievor was reinstated with conditions; the same conditions were awarded after a second hearing. The Grievor has now been terminated for breach of one of those conditions - the need to seek immediate medical attention when absent from work due to illness. Although the Grievor became ill Sunday evening, the Union believed that by seeking medical attention on Monday the conditions of the previous Consent Award had been met.

Canadian Media Guild V Canadian Broadcasting Corp, Innis Christie

Innis Christie Collection

The Union alleged a breach of the Collective Agreement because the Employer was hiring a large number of temporary employees and not posting the positions as permanent vacancies. This preliminary hearing dealt with the question of who had the onus of proof. The Union believed that the Employer needed to provide that proof.

The preliminary objection fails. The Union must prove its case, but the Employer must disclose the needed information.

Re Canada Post Corp And Cupw (036-03-00022), Innis Christie

Innis Christie Collection

Union grievance, submitted on September 20, 2006, on behalf of all affected employees alleging breach of Article 39 05 (e) and (f) of the Collective Agreement between the parties bearing the expiry date January 31, 2007, in that the Employer failed to offer overtime hours as required by those provisions. The Union sought an order that the Employer pay damages to compensate the affected employees.

Re Canada Post Corp And Cupw (066-07-00001), Innis Christie

Innis Christie Collection

Union grievance, submitted on August 29, 2007, on behalf of all affected employees alleging breach of Articles 11,13 and 52 in that the Employer failed to fill a vacant RLC position. The Union sought an order that the Employer grant full redress to the employee who should have been given the RLC position.

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.

Ufcw, Local 1288p V Maple Leaf Consumer Foods Moncton Ltd, Innis Christie

Innis Christie Collection

The Grievor was discharged for innocent absenteeism. The Union believes this was without just cause and that the Employer failed to sufficiently accommodate the Grievor. Reinstatement was initially requested as remedy, but the Grievor had found other employment and requested compensation instead.

Cep V Bell Aliant Regional Communications Llp, Innis Christie

Innis Christie Collection

This is a Union grievance regarding the scheduling of part-time employees and whether temporary student employees should be regarded as part-time for scheduling. The student's total annual work hours could be reduced under the Union's interpretation. The Employer does not include student employees as 'part-time' in the interpretation of the collective agreement.

Re Canada Post Corp And Cupw (Stone), Innis Christie

Innis Christie Collection

The Grievor refused to work in what she considered an unsafe situation. After the Employer investigated she was ordered to return to work. Her refusal resulted in a two day suspension. The letter of suspension indicates that the Employer's decision was, in part, based on a similar suspension in her personal file, which is also being grieved. The Union claims the suspension was without just cause and wants the Employer to pay damages for what was lost as a result of the suspension and removal of all related documents in the personal file.

Re Canada Post Corp And Cupw (Morgan), Innis Christie

Innis Christie Collection

The Grievor was suspended with pay until a complaint by a co-worker could be investigated. The complaint dealt with a conversation regarding serial killers, which upset the co-worker and caused the Employer to be concerned about workplace safety. After the investigation the Grievor was placed on sick leave until she could provide medical proof that she was not a danger to her co-workers. The Union believes the Employer breached the collective agreement by imposing the suspension without just cause and, as remedy, wants the Employer to pay damages to compensate the Grievor for what was lost by the suspension, a …

Re Canada Post Corp And Cupw (Morgan), Innis Christie

Innis Christie Collection

The Grievor was suspended for inappropriate behaviour towards co-workers. The Union claims the three day suspension was without just, reasonable and sufficient cause and sought a remedy which would pay damages due to the suspension and removal of all related documents from the Grievor's personal file.

The grievance succeeds in part. Discipline was appropriate. There was nothing in the Grievor's personal record to support a three day suspension and one of the complaints warranted no discipline. The suspension is reduced to two days and the Grievor is to be compensated for losses resulting from the third day.

Re Canada Post Corp And Cupw (Morgan), Innis Christie

Innis Christie Collection

The Grievor was given a three day suspension (two waived, one served) for inappropriate behaviour and comments to both a co-worker and a supervisor. The Union claims the Employer breached the collective agreement by not following prescribed procedure and depending on hearsay evidence. As remedy the Union wanted the Employer to pay damages for what was lost due to the suspension and removal of all related documents from the Grievor's personal file.

Re Air Canada And Acpa (Thain), Innis Christie

Innis Christie Collection

The Grievor alleged that the Employer breached the Collective Agreement when it dismissed him after a criminal conviction. The parties requested a "bottom-line decision, without reasons".

This is a consent award. The Grievor is reinstated to employment effective immediately with a Leave of Absence status. The suspension, which occurred before the discharge, is rescinded. While on Leave of Absence the Grievor will not accrue pay or other compensation, but will retain his position on the seniority list. There will be a one year trial period. During this time a number of conditions must be addressed by the Grievor. Jurisdiction is …

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

This is a supplementary award. The parties could not agree on the interpretation of a consent award issued the day before this grievance. The issue being the length of time the Grievor was to remain free of illegal drug use. The Union said the 24 months mentioned in the award; the Employer said indefinitely. The counsel for the Employer also suggested that the Arbitrator did not have jurisdiction to decide the matter.

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

The Grievor had previously been reinstated to her position, with certain conditions. This grievance was submitted by the Union after the Grievor was again discharged for a positive drug test. The parties agreed to a consent award.

This is a consent award. A "last chance" reinstatement is ordered for the Grievor with numerous conditions, which include a treatment program. Jurisdiction is retained regarding any further alleged breach, but not to modify penalty.

University Of Prince Edward Island Faculty Association V University Of Prince Edward Island, Innis Christie

Innis Christie Collection

Member Grievance dated November 10, 2006, alleging that the Employer violated Article G1.3a) of the Collective Agreement between the parties, effective May 12, 2006 and expiring June 30, 2010, which the parties agreed is the Collective Agreement applicable here. In the Grievance the Union grieves "the Employer's violation of hiring procedures for sessional instructors", which resulted in the Grievor not being offered a sessional contract to teach [Retracted] for the Spring semester of the academic year 2006/7. The Union seeks a declaration that the Employer violated the Collective Agreement and an order that the Grievor be fully compensated for loss …

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 Halifax Employers Assn And Halifax Longshoremen's Assn, Local 269, Ila, Innis Christie

Innis Christie Collection

The Union believes the Employer breached the Collective Agreement by submitting the dispatch listing seeking workers twelve minutes late. The Employer believed there was a two hour range, thus the dispatch was not late and no loss was suffered by the Union members. As remedy the Union wants payment of members who might have been assigned from the 'hall' or payment into the Union trust fund.

The grievance succeeds in part. The dispatch under consideration was twelve minutes late. Thus the Employer did breach the Agreement. However, no financial loss was demonstrated and the Collective Agreement does not require a …

Atu, Local 508 V Halifax (Regional Municipality), Innis Christie

Innis Christie Collection

The Grievor was terminated for inappropriate behaviour towards a female passenger. The Grievor did not believe the Employer had just cause and sought reinstatement with full wages and seniority, and the removal of all related documents from his personnel file.

The grievance succeeds in part. Given a previous disciplinary letter regarding similar behaviour, the Grievor should have known that his conduct was not acceptable. Discipline was justified, but dismissal was viewed as excessive in a situation where progressive discipline might be expected. The Grievor is reinstated with several conditions, and with one month suspension without pay. Jurisdiction is retained.

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

The Grievor was discharged for being absent without leave. The Union believed the Employer's action was without just, reasonable or sufficient cause. The requested remedy is full reinstatement, compensation of lost earnings and benefits, and removal of all related documents in the personnel file

The grievance succeeds in part. During the hearing the parties agreed to reinstate the Grievor, subject to a number of conditions, which are to be in effect for 24 months. Jurisdiction is retained.

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

The Grievor was dismissed for allegedly exposing himself and for not cooperating with the Employer's request for medical consultations. The Grievor denied the event occurred. The Union states that the dismissal was without just or sufficient cause and requests that the Grievor be fully reinstated and compensated for all lost earnings and benefits, and that all material relating to the matter be removed from his personnel file.