Decisions

Judicial review of bonus – denied

This matter has been outstanding since November 2008. Mr. Bork resorted successfully to employment standards legislation. He has been denied the benefit of his effort for over four years. While the delay from April 20, 2012 is not inordinately long, the delay overall is extensive. The issue that the applicant seeks to pursue has nothing to do with the merits of Mr. Bork’s entitlement. The proposed appeal is not strong. In my view, it is not in the interests of justice to extend the time to appeal the April 20, 2012 order.
The judge awarded costs on Scale C because the litigation was unnecessarily protracted and included a complex and novel constitutional issue.
The court did not find employer in contempt.

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Requirement for some notice under collective agreement

The only requirement in the Agreement is that there must be some notice. The amount of notice required depends on the particular circumstances of each case. It is, in my view, trite law that the exercise of management rights is subject to a requirement that the employer acts reasonably. In this case, the affected employees received some, albeit minimal, notice of the layoffs. In the circumstances, on the evidence before me, I cannot conclude that the Company exercised its management rights unreasonably.

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Whether or not unused vacation time could be lost, vacation pay entitlement could not be lost

The prohibition in section 21 is a broad based blanket prohibition whose exceptions are few and are apparent in the provision. The circumstances here are not included in those exceptions. The prohibition in section 21 applies to the suggestion in this appeal that if entitlement to annual vacation time off is lost because it has been left unused, then the vacation pay, which to reiterate is wages under the Act, is lost along with it. Section 21 does not allow that result since such would be a deduction or withholding of wages. The effect of section 21(1) in this case is reinforced by section 4 of the Act, which would operate to void any agreement that could be said to result in an employee losing wages to which they were entitled under the Act. The Director did not err in finding Mr. Ducluzeau did not lose his earned and unused vacation pay and was entitled to receive the unpaid amounts of his vacation pay entitlement on termination.

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Costs awarded against employer in judicial review

Director of Employment Standards accepted claimant’s argument that he was entitled to $60,000 bonus associated with completion of rail spur, finding that employer owed claimant $60,000 in wages — Employment Standards Tribunal upheld decision on employer’s appeal and on reconsideration — Employer’s application for judicial review was dismissed — Costs submissions received — Claimant entitled to costs from employer on Scale C — Employer raised seven grounds of judicial review, including constitutional issues going to jurisdiction that were only finally articulated adequately at hearing itself — Matters were inherently complex, but made more complex than they needed to be, and hearing took longer than it ought to have done — There was unexplained delay, unnecessary pre-trial applications, and employer failed to advance case in procedurally appropriate ways — There was no reason to depart from general rule that costs followed event, and novelty and complexity of constitutional issue supported award of costs on Scale C — Record did not support claimant’s argument that employer used delay tactics or attempted to have him abandon petition to frustrate award of bonus — No issue had been taken with claimant’s draft bill of costs and disbursements and so costs would be ordered on Scale C as set out in draft bill.

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Court Uphold $60,000 Bonus Award

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Canwood International Inc. v. Bork, 2012 BCSC 578
Date: 20120420 Docket: S096089 Registry: Vancouver
In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 And In the Matter of the Employment Standards Act, R.S.B.C. 1996, c. 113
Between:
And
Canwood International Inc.
Olaf Bork, Employment Standards Tribunal, Director of Employment Standards and Attorney General of British Columbia

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Supreme Court of BC Upholds Dismissal Award

IN THE SUPREME COURT OF BRITISH COLUMBIA
TELUS Advanced Communications, a Division of TELUS Communications Inc.; TELUS Services Inc. and TELUS Advanced Services Inc.; TELUS Communications, a Division of Telus Communications inc. and Telus Communications (B.C.) Inc.; TELUS Management Services, a Division of TELUS Services Inc. Telecome Leasing Canada (TLC) Limited; and ISM Information Systems Management (B.C.) Corporation; (hereinafter referred to as “TELUS” or “the Company”); TELE-MOBILE Company/Societe TELE-MOBILE and TM Mobile Inc.; (hereinafter referred to as “TELUS Mobility”)

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Arbitration Award Upheld – Arbitrator considered evidence, reviewed applicable authorities and came to reasonable conclusion

The arbitrator may have chosen to give greater or lesser weight to individual pieces of evidence before him, but his finding that the grievor’s absenteeism was excessive can not in any sense be said to fall outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” The arbitrator issued a lengthy award that considered the evidence in detail, reviewed the applicable legal principles and clearly set out his reasons for reaching the conclusion that he did. Viewed in its entirety, the award fully meets the requirement for “justification, transparency and intelligibility.” Other arbitrators may or may not have taken a different view of the evidence and reached a different conclusion, but the decision made by the arbitrator clearly falls within the “range of possible acceptable outcomes.”

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Employer Did Not Discriminate Against Employee on the Grounds of Disability

The Tribunal did not find it reasonable to infer from the evidence that Mr. Forrest’s disability was a factor in the respondents’ decision. After a review of all the credible evidence, the tribunal found that the respondents did not decide to alter the terms and conditions of his employment, in whole or in part, because he was going to be off work for a time due to kidney stones. The terms and conditions of his employment were changed, rightly or wrongly, due to performance issues as perceived by Mr. Bakken. His employment subsequently came to an end only because Mr. Forrest decided to end it, and negotiated a severance package with Mr. Bakken. It is not reasonable to infer that it came to an end, in whole or in part, because of a disability.

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Unjust Dismissal – Section 240 Of The Canada Labour Code

The decision found that the dismissal of a band employee for “restructuring” to constitute unjust dismissal. There was little evidence of actual “restructuring.” The dismissed employee was entitled to “wage loss” for the brief period of unemployment.

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Employer’s conversion of position into fixed term and assignment to less expensive employees not constituting restructuring

There was precious little evidence to support that Ms. Morrison’s position as Recreation Coordinator was “restructured.” No member of the Band Council involved in the decision testified. Ms. Shannoss was not involved in the decision. There was little evidence as to the activities of the “office,” or job, before or after. The explanation that the “restructuring” was still ongoing, does not, assist the Band’s position. The only aspect advanced by the Band was the notion that it wanted offer more sport, but on ail of the evidence, that was also done when Mr. Morrison was employed. In a general sense, I appreciate the Band’s apparent concern about budgets. On that point there was, in any event, no evidence, other than the foregoing “concern.” I also appreciate its concern about sharing employment opportunities among the band members. However, the bottom line here is that this was no more than the conversion of Ms. Morrison’s position into a 12-months fixed term position and have the work done by other, new employees (at less costs). This, in the circumstances, does not constitute a “restructuring.”

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Decision In Wu V. Rbc Upheld In Federal Court Of Appeal

The respondent’s misconduct was serious, premeditated, deliberate and occurred over a long period of time. As he said, it was not a “momentary and emotional aberration”. He noted that the respondent had a discipline free record and was a “good and dedicated employee”, but a short-term employee. He added that the respondent was not singled out for any special or harsh treatment. He also found that the respondent refused to take responsibility for her actions, instead blaming the appellant for allowing her to commit the violations of the Bank Code of Conduct. Accordingly, he ruled that the penalty imposed by the employer was not excessive.

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Partial Decertification

Partial decertification involves the exercise of the Board’s discretion and represents an exception to the majoritarian principle governing the cancellation of bargaining rights under Section 33 of the Code

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BC Labour Relations Board Excluded American Employees From The Bargaining Unit

The Board was not satisfied on the submissions before me that a bargaining unit including the foreign national employees is conducive to the orderly and constructive negotiation or administration of a collective agreement. The foreign nationals’ terms of employment for work done at the Vancouver campus is governed by the Collective Agreement. It follows that the Employer and foreign national employees, who act in compliance with the collective agreement and Code provisions governing the proposed unit, may be acting inconsistent with the Collective Agreement and vice versa. For example, individuals lawfully on strike under the Collective Agreement may be simultaneously compelled to work under a collective agreement for the proposed unit. These employees would be exposed to potential repercussions with their respective unions if they ignore the dictates of one regime out of respect for another. Other examples of discord arise with respect to the administration of discipline and discharge as well as collective agreement provisions governing hours of work, etc. There is also a real potential for conflicting arbitration awards between the collective agreement regimes. This serves to undermine the effectiveness of grievance arbitration as a method for the final and conclusive resolution of disputes. For these reasons I do not find the proposed unit as it is presently described, is appropriate for collective bargaining.

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Decision – Independent Medical Report Ordered

However, an arbitration is an adversarial process, based on the “assumption that truth is best discerned through this sort of evidentiary contest” (Canada Post, § 8). The Union has put the Grievor’s mental condition in issue by giving notice that it intends to call Dr. Mallavarapu and introduce his report, based on his examination of the Grievor. That evidence and the report will also intrude on the Grievor’s privacy. I recognize that Telus, as argued by the Union, kept comprehensive medical records with respect to the Grievor during her employment, including through its absenteeism management program, and it knew about her medical conditions. All the same, the IME requested may be necessary so that counsel can be properly instructed for the cross-examination of the Union’s experts, and for the preparation of the expert testimony it may decide to lead. I agree with Telus that I likely will be asked at the end of hearing to choose between the opinions of the Union’s medical experts, who have examined the Grievor, and the Employer’s expert who has not. Generally, the report from an expert, who has examined an individual, will carry more weight than the report from on who has not. In my view, deficiencies in the medical evidence may not, as argued by the Union, be adequately addressed in cross-examination. As noted in Canada Post, quoted above: “If one side has access to experts who have examined the grievor and the other side does not, an unfairness manifests itself in an inability to adequately understand the medical evidence as it relates to the individual, an inability to adequately cross examine on critical points and an inability to call contradictory evidence.” Thus, if I deny the Employer’s application, the evidence of the Union may well go untested because of the inability to the employer to effectively cross-examine or to call contradictory evidence. I am not satisfied, the circumstances, that directing the Employer to seek further or additional information from the Union’s expert, as suggested in Overwaitea Foods, satisfies the fair hearing requirements. The fact is that the Union has its own expert. This places the employer at a disadvantage, which is prejudicial to its right to a full and fair hearing.

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Employer Did Not Discriminate Against Employee Returning From Maternity Leave

Employer terminated employee’s employment because, as a result of a significant downsizing, it did not have a position for her to return to. The employer submits that had employee not been on maternity leave her employment would have been terminated earlier. It terminated her employment at the completion of her maternity leave.

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Did the Employee Quit?

There is no disagreement in the evidence that Mr. Arpe left YVR’s office with the words “thanks for making me homeless.” In fact, I accept Mr. Hutchison’s characterization that Mr. Arpe “stormed” out of the office. Both his and Ms. Kuzyk’s evidence is consistent that Mr. Arpe was very angry. In all of the circumstances, including Ms. Kuzyk’s evidence, I believe it is unlikely that Mr. Arpe at that time told Mr. Hutchison that he “needed his ROE and wanted it within 48 hours.” The Employer did not dismiss the Employee.

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Human Rights Tribunal – Application to Dismiss Denied

Release entered into by Meridian and Ms. La Saw to resolve an outstanding commission issue, leads to the conclusion that it would not further the purposes of the Code to proceed with Ms. La Saw’s complaint. I therefore deny the respondents’ application to dismiss the complaint. Her complaint of discrimination in employment on the basis of sex continues before the Tribunal.

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VanASEP (Aboriginal Skills Employment Partnership) Training Society – Complaint under Provincial Jurisdiction

Although the Society provides services to Aboriginal people, this fact, in and of itself, does not make it a federal undertaking. What must be decided is whether “the operations of the Society touch upon the ‘core of Indianness’ – a core made up of matters integral to aboriginal or treaty rights, aboriginal culture, or Indian status”: NIL/TU,O Child and Family Services Society v. BCGEU, 2008 BCCA 333 (CanLII), para. 57. The Court also stated that “primary provincial jurisdiction over labour relations is not ousted simply because enterprises engage the interests of aboriginal groups, or provide services in a manner that is culturally sensitive” The Society was incorporated to provide education, training and job opportunities to Aboriginal people. In my view, these activities do not touch upon the “core of Indianness”.

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When the driver was told to clean out the truck that was equivalent to being fired

In the circumstances, I prefer Mr. Jansen’s evidence that he was given a choice of completing the trip or being fired. Whether or not Mr. Jansen had, in fact, told the dispatcher about having to return on November 24, or not, the customer was an important one to the employer, and it was common ground that the trip to Paris, Ontario and to Prince George, BC would be a “tight squeeze” in those circumstances. Both Mr. Jansen and Ms. Churchwell’s evidence suggest that the dispatcher was swearing at Mr. Jansen. I accept that the dispatcher became “unglued” and told Mr. Jansen to go to Ontario or “bring the fucking truck back … and clean [it] out.”

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Recent Decisions

The obligation of good faith and fair dealing is incapable of precise definition. However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive. (Wallace v. United Grain Growers Ltd. [1997] 3 S.C.R. 701 (Supreme Court of Canada))