a year in review – highlights and lowlights of labour and employment law may 25, 2015 presented...
TRANSCRIPT
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A Year in Review – Highlights and Lowlights
of Labour and Employment Law
May 25, 2015
Presented by: J. Najeeb Hassan
BC Care Providers Annual Conference, Whistler B.C.
@jnajeebhassan
The purpose of this presentation is to provide an overview of recent developments in the law. This does not by any means constitute a full analysis of the law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed.
© Roper Greyell LLP 2015
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Agenda – The Good, the Bad and the Ugly
Supreme Court DecisionsPrivacyHuman RightsLabour Relations Board DecisionsDiscipline
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The Supremes
Three Important Cases
Right to Strike and Essential Services
Right to Collective Bargaining
Good Faith Performance of Contracts
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Right to Strike and Essential Services
Saskatchewan Fed of Labour v. Saskatchewan 2015 SCC 4▪ SCC constitutionalized the right to strike▪ Legislation allowing employers to
unilaterally set essential services level substantially interfered with free association in the form of meaningful process of collective bargaining
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Right to Strike and Essential Services
▪ Different than in British Columbia.
▪ Legislation not “minimally impairing” rights▪ Essential services broadly construed▪ No alternative dispute resolution
▪ Decision essentially a validation of B.C.’s essential services model
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Right to Collective Bargaining
Mounted Police Association of Ontario v. Canada (Attorney General) 2015 SCC 1▪ Exclusion of RCMP from Federal Collective
Bargaining regime and imposition of non-union labour relations regime.
▪ RCMP members did not have the freedom to choose a representative independent of the employer.
▪ A violation of freedom of association.
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Good Faith in Performance of Contracts
Bhasin v. Hrnew 2014 SCC 71
▪ New duty of honest performance among parties to contracts
▪ Parties be honest with each other in relation to the performance of
contractual obligations and not lie or mislead the other party about contractual performance
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Good Faith in Performance of Contracts
▪ Duty founded on principle of good faith requiring parties to perform their contractual duties honestly and reasonably, and not capriciously or arbitrarily.
▪ Distinguished from fiduciary duty, which requires loyalty or obligation to put the other persons interests first.
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Disclosure of Bullying and Harassment Incident
Surreptitious Surveillance
Disclosure of Contracts by Health Authorities
Privacy
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Disclosure of Bullying and Harassment Incident
Order F14-48; South Coast British Columbia Transportation Authority, 2014 BCIPC 52
• Access request for the cost of addressing harassment complaint.
• Public body permitted to refuse to confirm or deny the existence of records where
would unreasonably invade alleged complainant’s personal privacy.
• No overriding public interest requiring production.
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Surreptitious Surveillance
Unifor, Local 433 v Crown Packaging Ltd (Giesbrecht Grievance), [2014] BCCAAA No.43 (Dorsey)▪ The grievor requested vacation leave for the
week before the Thanksgiving long weekend. Only part of the request was allowed due to scheduling issues.
▪ The grievor called on October 9th would not be at work due to a back problem.
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Surreptitious Surveillance
▪ The employer hired a private investigator to conduct video surveillance of the Grievor for the next three days.
▪ The Grievor provided doctor’s note.▪ Terminated for fraudulently claiming sick
leave and benefits for three days and lying about the reasons for his absence during the employer’s investigation.
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Surreptitious Surveillance
▪ The union grieved, objecting to the introduction of the video surveillance evidence at the arbitration.
▪ Considered PIPA and whether the employer was entitled to collect the grievor’s personal information without consent as reasonable for the purposes of establishing, managing, or terminating an employment relationship
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Surreptitious Surveillance
▪ Videotaping Grievor not reasonable. Grievor had 34.5 years of service with no history of dishonesty or uncooperativeness.
▪ Alternative, less intrusive means available to obtain information about the grievor’s medical condition.
▪ Evidence not admitted.
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Disclosure of Contracts by Health Authorities
Order F14-28; Re Vancouver Island Health Authority, 2014 BCIPC 31
▪Compass Group requested a review of Vancouver Island Health Authority's decision to disclose its contracts with VIHA to HEU.
▪Compass argued disclosure reasonably expected to harm its business interests.
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Disclosure of Contracts by Health Authorities
▪ Privacy Commissioner determined that the information in the contract was not supplied in confidence under FIPPA and VIHA was ordered to disclose the contracts.
▪ Care providers can expect similar treatment regarding their contracts and regarding contracts of their suppliers in the possession of a public body.
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Human Rights
Termination of Employees on LTDDuty to Accommodate – Requesting
Medical InformationDuty to Accommodate –When is
Enough, EnoughDisciplining Disabled Employees
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Termination of Employees on LTD
Township of Langley and CUPE Local 403 (unreported) February 4, 2015 (McPhillips)▪ Employees incapable of attending work
regularly. By terminating employment Employer was saving money on benefit premiums.
▪ Decision to terminate 3 employees on LTD was held to be arbitrary and random.
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Termination of Employees on LTD
▪ Employer ordered to reinstate the employees. ▪ A very bad decision which is contrary to well
established doctrine of non-culpable absenteeism.
▪ Though an exception to the doctrine of non-culpable absenteeism exists (which prevents dismissal if it will deprive employee of benefits directly related to disability, e.g. LTD benefits), that was not the case here.
▪ Decision on appeal to LRB.
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Duty to AccommodateRequesting Medical Information
Petrar v. Thompson Rivers University, 2014 BCHRT 193
▪ Employer sought to obtain medical information about an employee’s ability to come to work.
▪ Employee complained that the Employer’s request for medical certification of fitness amounted to discrimination.
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Duty to AccommodateRequesting Medical Information
▪ Complaint dismissed – Employer complying with duty to inquire - employee with known medical condition that she alleged affected performance.
▪ Employer’s management of performance despite disability not discriminatory and not improper retaliation, as it addressed conduct that predated complaint.
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Duty to AccommodateWhen is Enough, Enough
Wilcox v. UBC, 2014 BCHRT 228▪ Lab employee developed allergy to mice.
She worked in a lab that conducted research on mice and this led to a medical leave.
▪ Employee took no steps to apply for alternate positions and declined those offered as not qualified.
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Duty to AccommodateWhen is Enough, Enough
▪ When Wilcox was later laid off due to lab closure alleged failure to accommodate to point of undue hardship.
▪ Complaint was dismissed as no likelihood of successfully proving a failure to accommodate given the absence of positions for which the employee was qualified.
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Disciplining Disabled Employees
Bartuk v Vancouver Coastal Health Authority, 2014 BCHRT 188▪ The Complainant said she was diagnosed
with sleep apnea and also suffered from "stress, anxiety and depression".
▪ She commenced a medical leave on June 15, 2012.
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Disciplining Disabled Employees
▪ Complainant claimed she was discriminated against because VCHA did not reasonably accommodate her.
▪ Claimed VCHA did not apply an Accommodation Agreement it made.
▪ Claimed she was subjected to particular scrutiny and was treated differentially from other employees.
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Disciplining Disabled Employees
▪ She received letters of warning and displacement notice which were held to be unrelated to the disability and there was no retaliation.
▪ Her complaints alleging a failure to accommodate and delay in accommodation were also dismissed. The complainant had been accommodated.
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Labour Relations Board Decisions
Common Employers
Bad Faith Bargaining
Rationalization of Bargaining Units
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Common Employers
Park Place Seniors Living Inc., BCLRB No. B215▪ Union attack on corporate structure -
separate companies operate various facilities with certain corporate services provided by a related company.
▪ A very common arrangement in care sector.
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Common Employers
▪ LRB concluded that there were two or more entities under common control and direction.
▪ But no labour relations purpose for finding that they were common employers.
▪ Potential erosion of bargaining rights through potential contracting out not enough – application dismissed.
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Bad Faith Bargaining
Carecorp Holdings Inc., BCLRB No. B7/2015▪ HEU argued employer breached duty to
bargain in good faith by tabling proposal for lower wages than paid at other related sites.
▪ Claimed discrimination because a higher percentage of “persons of colour” at the location in question than other sites.
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Bad Faith Bargaining
▪ The LRB concluded that the union failed to make out a prima facie case of discrimination.
▪ Many differences based on location consistent with economic factors – different contracts between Employer and customer at the various sites.
▪ HEU’s application held to be without merit.
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Rationalization of Bargaining Units
HEABC (Baptist Housing Care Homes Society), BCLRB No. B194/2014▪ The Employer owned two facilities with 2
different bargaining units and 2 unions.▪ It decided to lose Central Care Home and
Mount Edwards Court Care Home (MEC) and open a new facility - The Heights.
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Rationalization of Bargaining Units
▪ Employer applied to delete the HEU certification at CCH and the IUOE certification at MEC and to replace these with a single certification at The Heights.
▪ The LRB concluded a rational line could no longer be drawn around the two existing bargaining units when they moved to The Heights.
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Rationalization of Bargaining Units
▪ The existing HEU and IUOE certifications were deleted from the facilities subsector consolidated certification.
▪ The Heights was added to the facilities subsector consolidated certification.
▪ Representation vote held to decide which union would represent the employees at the Heights.
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Discipline and Discharge
Breach of Patient PrivacyInsubordinationDishonestyResident AbuseSocial Media Transgressions
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Breach of Patient Privacy
Vancouver Coastal Health Authority and HSA, [2014] BCCAAA 36 (McEwen)▪ 24 years Employee. For the last 10 years
a Clinical Support Coordinator for Cardiac Systems with VCHA.
▪ Accessing a patient’s medical records, communicating about them and forwarding them via email to a third party.
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Breach of Patient Privacy
▪ The Employee had signed employer’s Information Privacy and Confidentiality Policy recently.
▪ No disciplinary history.▪ Immediately admitted the mistake when
confronted.
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Breach of Patient Privacy
▪ Termination was too severe in light of long service with no discipline and the fact she immediately admitted mistake when confronted.
▪ Three month suspension was substituted.
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Insubordination
HEABC (Fraser Health Authority Ridge Meadows Hospital) and HSA, [2014] BCCAAA 79, 244 LAC (4th) 180 (Sanderson)▪ Patient Care Coordinator (DC2) insolent,
insubordinate and disrespectful in her email communications with her direct supervisor.
▪ The conduct arose after the supervisor rebuffed a romantic relationship with the Grievor.
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Insubordination
▪ No reasonable expectation to think correspondence would be welcomed by her supervisor.
▪ Having delivered an initial letter and heard the reaction, she persisted in actions at work, trying to advance a private obsession.
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Insubordination
▪ Behavior escalated to calling supervisor a liar and alleging harassment.
▪ The Employer terminated the employee’s employment.
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Insubordination
▪ There was a serious breach of trust towards the employer and the supervisor.
▪ Termination of the Grievor was not an
excessive response.
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Insubordination
HEABC (Vancouver Coastal Health Authority) and BCGSEU, [2014] BCCAAA 83 (Keras)▪ At meetings the Grievor was at times
abusive, disrespectful and on occasion insubordinate.
▪ However, the Grievor also apologized.
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Insubordination
▪ Relationship between the parties was not beyond repair but needed some work.
▪ The decision to terminate was excessive. ▪ Reinstated to her position of casual cook,
subject to completing a Respectful Workplace Policy course.
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Dishonesty
Roe v BC Ferry Services, 2015 BCCA 1 ▪ Manager terminated for unauthorized
donation of food vouchers to daughter’s sports team – value was less than $200.
▪ Trial judge held that misconduct was “trifling” – no just cause for termination.
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Dishonesty
▪ BC Ferries appealed.▪ Court of Appeal ordered new trial –
directed lower court to assess her conduct in the context of a high standard of conduct and honesty and integrity expected of the senior manager, and the Plaintiff’s deliberate concealment of the donations.
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Dishonesty
Fraser Health Authority and BCGSEU, [2014] BCCAAA 53 (Brown); appeal denied BCLRB No. B141/2014.▪ Six year LPN employed as Licensing
Officer (LO). One year’s service in her current position and about 6 years’ service at other employer locations.
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Dishonesty
▪ Required to work independently in the field and hours of work were flexible.
▪ At times LO’s were given the option to work at home to complete reports. LO’s were required to complete daily time sheets and sign in and out.
▪ Employee leaving work early and there were other timekeeping issues.
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Dishonesty
▪ Dishonest at least eight times. Did not start work when said she did and used the early start time and working through breaks and/or banked time to leave early to work at other job.
▪ Not an error. She was calculating time very closely using a flexible system to vary start and finish times, bank hours and use banked hours to manage two jobs.
▪ There was cause for discipline and termination was not excessive.
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Resident Abuse
Carecorp Holdings Inc., BCLRB No. B201/2014▪ Union argued termination of LPN was not
for proper cause and said since it happened shortly after certification it was tainted by anti-union animus.
▪ LPN denied she covered resident’s mouth with a wet towel during care.
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Resident Abuse
▪ Employee’s story was not believed. LRB found her story compared to another witnesses to be improbable, even though the LPN had a witness too.
▪ Employer had proper cause to terminate. Resident abuse whether emotional or physical abuse was considered serious.
▪ Termination decision was not tainted by anti-union animus – complaint dismissed.
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Social Media Transgressions
Kim v. International Triathlon Union, 2014 BCSC 2151▪ Employee made a series of tweets on her
personal Twitter account and wrote a blog post about her manager.
▪ No warnings were given to the employee before termination was imposed.
▪ What was said individually was not serious enough for warrant termination.
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Social Media Transgressions
▪ No “cumulative cause” for series of incidents that did not justify termination individually absent evidence of clear of warnings after earlier incidents.
▪ Employer did not establish just cause for termination of manager.
▪ Even professional managers entitled to clear warning that conduct unacceptable and will lead to termination.
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NAJEEB HASSAN
Partner
Roper Greyell LLP
Vancouver, BC
(604) 806-3820
@jnajeebhassan
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