Decisions

Manager status under the Canada Labour Code

The common thread in the authorities is the actual exercise of significant autonomy, discretion and authority in the conduct of the employers business. The term “manager” is given a narrow construction.

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DUTY OF FAIR REPRESENTATION – IS IT TIME TO GET RID OF IT? GIVE IT TEETH?

43 Similarly, I am not persuaded that Jackson was dishonest with the Complainant during the grievance processes. As the Board held in Judd, the union’s deception must go to the quality of the representation. For the most part, the Complainant’s allegations of dishonesty are with respect to the evidence Jackson gave before the Board and were offered as a challenge to Jackson’s credibility. I find the Complainant has not established, on the evidence, that Jackson was dishonest with him during the Initial Grievance or the LCA Grievance in a way that affected the quality of the representation.

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Deductions under the Canada Labour Code

The Employer made deductions from Mr. Czernewan’s final pay cheque in clear contravention of 254.1 (1), which prohibits deductions with certain limited exceptions. The Employer relied on an email communication, which, as I have found above, provided no basis for the deduction. In my view, it was abundantly clear on the face of the email that it could not reasonably be read to provide any basis for the deduction. I am also of the view that the Employer’s reliance on a court order obtained subsequent to the deduction could not reasonably provide a basis for the deduction. In the circumstances, I have determined that $500.00 is a reasonable amount.

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Provincial Court – Appeal or Judicial Review

When a court sees fit to give Judgment as a result of a pre-trial procedure or application, the same interests in certainty and finality are engaged, as is the statutory goal of speedy resolution of claims. I see no reason why the successful party should have to wait longer to enjoy the benefit of the Judgment than he or she would have to wait if the Judgment had been given at trial.
Although the application for judicial review is not subject to the appeal period in s. 6 of the SCA or to any other specific time limit, an applicant who seeks judicial review of an order giving Judgment or dismissing a claim must still act promptly. If there is to be a delay significantly greater than the 40 days that would be allowed in the case of an appeal, the applicant should, in my view, provide some evidence of a reasonable explanation for that delay.

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Dismissal of Provincial Human Rights Complaint – Federal Jurisdiction

The Complainant must take her human rights issues to the Canadian Human Rights Commission under the Canadian Human Rights Act. The Complainant may wish to provide the Commission with a copy of this decision in support of her assertion that she has been trying for some time to advance her human rights complaint against the Respondents.

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Eight Mile High

Hanlon v. City of North Vancouver and another, 2016 BCHRT 123 (Can Lii)   I                     INTRODUCTION [1]               On October 30, 2015, Robert Hanlon filed a complaint against the City of North Vancouver and the North Vancouver Firefighters’... read more

ONLRB: Despite “Half-Hearted” Efforts – Employee Did Not Fail to Mitigate – and Not Seeking Reinstatement – Compensation Awarded Up to Time When Employee Could Have Sought Reinstatement

The Board now accept the employer’s argument that the applicant’s job search efforts during this period were half hearted, likely reflecting the fact that she was engaged in the hearing of this application. I come to that conclusion even though, realistically, part of the period was in the summer when job prospects were likely low. Taking these factors all into consideration, I reduce the damages for this period by 3 months.
The applicant former employee did not seek reinstatement. In assessing this question, it is critical, in the Board’s view, that the Board has the authority under the Act to reinstate the applicant to her employment and compensate her for any loss she suffered. Therefore, the date at which the employer’s responsibility for the losses should be ended (subject to mitigation – or failure to mitigate) is the date at which the Board could have reinstated the applicant, or, as in this case, the date at which the applicant gave up the right to seek reinstatement. The Board varied the amount of the Order for compensation by reducing the amount owing by a total of four months (the one month deducted in the November 20, 2015 decision plus the three months indicated above).

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Reconsideration at the OLRB

Melanie Lamoureux v. JYSK Linen N Furniture Inc., 2016 CanLII 1331 (ON LRB)   Melanie Lamoureux, Applicant v. JYSK Linen N Furniture Inc., and Director of Employment Standards, Responding Parties Employment Practices Branch File No: 70131786-3 BEFORE: Brian... read more

Ontario Labour Relations Board: The Employee Mitigated Termination Despite Minimal Efforts to Find Work

UNDERSTATEMENT OF THE YEAR: The OLRB did not accept that the applicant has generally otherwise failed to mitigate her damages. While there is no doubt her job search efforts could have been more forceful, they were reasonable in all of the circumstances. That being said, there was a period where the applicant appeared to stop searching for another job. I am satisfied that the employee failed to mitigate for one month of that period.

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Unjust Dismissal Complaint – Canada labour Code

Based on the evidence and submissions, the unjust dismissal complaint and the wage recovery appeal are without merit. There is nothing to substantiate that the Employer changed the terms and conditions of his employment such that Coonfer was constructively dismissed. Rather, Coonfer resigned from his employment and is not entitled to severance. There is similarly nothing to substantiate that the Employer did not pay Coonfer in accordance with his contract.

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IAMAW DL 140 breached duty of fair representation under the Canada Labour Code

The Union violated its duty of fair representation.

First, the Union failed to disclose prejudicial allegations by co-workers against the Complainants. A Union may often represent individuals with competing interests. That situation must be handled adroitly, but it does not prevent a Union from carrying out its functions. The Board has found a union violates its DFR duty if it fails to put relevant employer evidence to the grievor for an explanation. The Board found no principled reason why the same concept would not apply when a trade union has received prejudicial allegations by some employees against others. It was incumbent on the IAMAW to put those negative allegations to the Complainants for comment. The IAMAW’s changed its attitude toward the Complainants. It is the clear existence of this change, without any satisfactory explanation, which supports a finding of a violation of the Code.

Second, the Union failed to document the process it followed which lead to the reinstatement of three out of seven terminated long service employees. An almost total lack of documentation about this key event, despite its prior attention to record keeping, impacts the weight which the Board can give to the oral testimony of the Union representative. As well, the same comment applies to the circumstances surrounding the appeal committee decision. The Union representative testified about the elements she says the Committee considered. But, again, not a single note or email exists about this teleconference meeting. No minutes were taken of the discussions. No emails were exchanged by the three participants either before or after the meeting.

Third, the CIRB noted that it does not appear overly demanding to require a trade union, at the end of its process, to provide an explanation to an employee why his/her grievance will not go any further. If providing nothing of substance to a grievor is designed to provide a trade union with greater flexibility at a future DFR hearing, then this strategy may be suspect. The Board examines what a trade union actually did, not what it could have done. The IAMAW provided only the following “reason”: “Given the evidence in this matter and the nature of the offense, we do not believe that the grievance would be successful. As such, we have decided not to proceed to arbitration regarding this matter.” The Board found that a bald conclusion does not constitute the type of reasons to which its leading case with respect to the duty of fair representation – McRaeJackson. The Board has concerns when a trade union fails to tell a member its reasons for not proceeding to arbitration. How can a union member realistically file an internal union appeal if he/she has no idea why the union decided not to go to arbitration? How can that member argue that the union’s officers might have misunderstood the evidence, especially if some similarly situated employees were reinstated, if the trade union does not provide any explanation of its reasons? This lack of reasons, whether standing alone, or as just another aspect of the IAMAW’s process, satisfies the Board that the IAMAW violated its duty under the Code. The Complainants are therefore entitled to certain remedies.

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The Employee Resigned

On the evidence and submissions, the unjust dismissal complaint and the wage recovery appeal are without merit. There is nothing to substantiate that the Employer changed the terms and conditions of his employment such that Coonfer was constructively dismissed. Rather, Coonfer resigned from his employment and is not entitled to severance. There is similarly nothing to substantiate that the Employer did not pay Coonfer in accordance with his contract.

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Procedural powers of Adjudicator under the Canada Labour Code

  \In the Matter of a Complaint of Alleged Unjust dismissal and a Wage Recovery Appeal under Part III of the Canada labour Code Darcy B. Coonfer, Complainant and Orca Airways Ltd., Respondent Ib S. Petersen Adjud. Judgment: February 4, 2014 Docket: YM2707-9489,... read more

Termination following Maternity Leave – Unjust Dismissal – Canada Labour Code

In my view, the remedy for an unjust dismissal is to “make” the employee “whole” and compensate her for the losses flowing from the Employer’s breach of the Code. Ms. Sandhu found alternate work quickly and was only unemployed for eight (8) days. Ms. Sandhu is, therefore, entitled to eight (8) days’ pay plus pay for the two days she worked, and for which she was not paid. In my view, on the evidence, the Employer agreed to pay her at an increased rate of pay ($2.00 per hour) following her return to work. I would include that increase in my award, for a total gross weekly pay of $840.00. Ms. Sandhu’s employment is a little shy of six (6) years. In this case, therefore, the Code provides for vacation pay of 4%. For the period January 6-19, Ms. Sandhu is entitled to $1,680.00 plus vacation pay of $67.20, a total of $1,747.20, less applicable statutory deductions.

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Reconsideration – BC Labour Relations Code

Richard Thibodeau, (the “Complainant”) and International Union of Operating Engineers, Local No. 115, (the “Union”) and Columbia Bitulithic Ltd., (the “Employer”) Thibodeau and IUOE, Local 115 Brent Mullin Chair, Ken Saunders V-Chair, Bruce R. Wilkins V-Chair... read more

Complainant alleged union violated s. 12 of Labour Relations Code by refusing to pursue grievance over layoff

Once it has the relevant information, the union must put its mind to the case and come to a reasoned decision whether to proceed (Judd at paras. 65 and 66). The Union took into account the absence of seniority provisions under the collective agreement and weighing the circumstances put forward by the Complainant in relation to the Employer’s reason for layoff, it decided there was insufficient evidence to support a grievance that the layoff was in fact a disciplinary termination or that the Complainant had been bullied or harassed and that there was a connection between the bullying and harassment and alleged termination. In the circumstances described above, I find the Union put its mind to the case and came to a reasoned decision not to proceed.
As set out in Judd, it is not the Board’s role to decide if the union was right or wrong (at para. 30). Further, Section 12 is not an avenue of appeal of the merits of the union’s decision (at para. 44). In assessing the union’s conduct the Board considers the union’s conduct as a whole, not whether it has committed isolated acts that may fit within the description of arbitrary, discriminatory or in bad faith (at para. 45). In the case at hand, considering the Union’s conduct as a whole I do not find it represented the Complainant in an arbitrary manner within the meaning of Section 12 of the Code. Accordingly, the complaint is dismissed.

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Test for reconsideration — Prima facie case.

An Application for Reconsideration by Metropolitan Fine Printers Inc., (”Metropolitan”) of a Decision issued by The Employment Standards Tribunal, (the “Tribunal”) Kenneth Wm. Thornicroft Member Judgment: February 19, 2013 Docket: RD022/13 Proceedings: refusing... read more

Recent Decisions

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. (Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.))