The Supreme Court of Canada will decide whether the Canadian Charter of Rights and Freedoms (the “Charter”) guarantees the right to strike for unions and their members. Earlier this year, the Saskatchewan Court of Appeal found that the Charter does not protect the right to strike. A substantial component of the Court of Appeal’s decision…
Practice Area: Labour Relations
New Education Act Regulatory Amendments Filed (Sick Leave Credits, Gratuities)
On October 10, 2013, the Ontario government filed O. Reg. 275/13 (Sick Leave Credits and Sick Leave Credit Gratuities), amending O. Reg. 1/13 (Sick Leave Credits and Sick Leave Credit Gratuities). Notably, the new amendments revoke the “sunset clause” previously contained in section 5 of O. Reg. 1/13, which had provided for an automatic revocation…
Confidentiality Provisions: Important, Effective and Enforceable
In most unionized workplaces, many grievances are settled before the parties present their evidence and before an arbitrator issues a public decision. In most instances, when a grievance is settled, the terms of that settlement are recorded in written form. The parties often agree that the settlement must be kept confidential and include a confidentiality…
The Duty to Accommodate and Poor Workplace Performance
What happens when an employee with physical restrictions is placed in a position consistent with those restrictions and provided with sufficient training, but is unable to perform the functions of that position? An Ontario arbitrator recently found that an employee’s inability to perform in such a position was unrelated to her disability, and that she…
Grievor’s Poor Performance in Modified Work Not Due to Disability, Employer Met its Duty to Accommodate
Arbitrator Jasbir Parmar has found that an employer met its duty to accommodate when it placed a grievor in a position that was within her physical restrictions and provided her with ample training. The fact her performance was inadequate in the position was not due to her disability, and it was appropriate for the employer…
Union Disclosure Bill Amended by Senate and Returned to House of Commons
On June 26, 2013, the Senate adopted a motion to amend Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations). As previously reported, Bill C-377 is a private member’s bill which, if passed, will amend the Income Tax Act to require labour organizations to disclose certain prescribed information. Amendments adopted…
Amendment to Sick Leave Credits and Sick Leave Credit Gratuities Regulation Filed
On June 19, 2013, the Ontario government filed O. Reg. 184/13, amending O. Reg. 1/13 (Sick Leave Credits and Sick Leave Credit Gratuities) made under the Education Act. O. Reg.1/13, as amended, gives regulatory effect to the sick leave provisions in the various recent Memoranda of Understanding between the Ministry of Education and teachers’ federations….
Court Upholds Discharge for Sexual Harassment
In a recent decision, the Ontario Divisional Court found that the discharge of an employee (grievor) who had sexually harassed a co-worker was an appropriate penalty. An arbitrator’s decision reinstating the grievor had relied on irrelevant factors and therefore fell outside the range of possible defensible outcomes. The irrelevant factors considered by the arbitrator included…
The Supreme Court of Canada Strikes Down Random Alcohol Testing Policy
On June 14, 2013, the Supreme Court of Canada released its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. In this much anticipated decision, the Supreme Court clarified the law regarding random alcohol and drug testing in safety-sensitive, unionized workplaces, finding that universal random testing will…
Majority of SCC Finds Employer Exceeded its Management Rights in Implementing Random Alcohol Testing Policy
Today, a majority of the Supreme Court of Canada upheld an arbitration award which concluded that a random alcohol testing policy for use in a safety sensitive workplace was not justified. In the absence of evidence of an existing workplace alcohol use problem, it concluded that a dangerous workplace was not, on its own, reason…