Common Law Contract of Employment 4

1

Labour Law CANS

Common Law Contract of Employment 4

Seneca College v. Bhadauria 1981 4

Reasonable Notice 4

Edna Cronk v. Canadian General Insurance Co. (1994 Ont. CA) 4

Just Cause for Termination 5

McKinley v. BC Tel (2001 SCC) 5

History of Unions and the Wagner Act 5

The Constitution and Collective Bargaining 6

Delisle (1999 SCC) 6

Dunmore v. Ontario (AG) (2001 SCC) 6

Health Services and Support Bargaining Assn. v. BC (2007 SCC) 6

Justifications for collective bargaining 6

Union Security Clauses: Voluntary Check off, Rand Formula, Closed Shop 7

2 ways a union can certify: Card and Vote 7

Union Certification Process: The Organizing Drive 7

What is an Employee? Control and Economic Dependence 8

National Labor Relations Board v. Hearst Publications (1944 US SC) 8

Winnipeg Free Press v. Media Union of Manitoba (1999 Manitoba LRB) 8

Employees Excluded from Unionizing: Managers, Confidential Employees 9

Children’s Aid Society of Ottawa (2001 OLRB) 9

What Qualifies as a Union? 9

S. 6(3) Unfair Labour Practices: Dismissal and Anti-Union Animus 9

Duchesmeau v. Conseil de la Nation huronne-Wendat (1999 CIRB) 10

S. 6 Unfair Labour Practices: General 10

Canadian Paperworkers Union v. International Wallcoverings (1983 OLRB) 10

Westinghouse Canada (1980 OLRB) 10

Certification and Bargaining Freeze 10

Employer’s Defences: Business as Usual, Reasonable Expectations 11

Simpsons Ltd. v. Canadian Union of Workers (1985 NSLRB) 11

Employer Speech 11

United Steelworkers of America v. Wal-Mart Canada (1997 OLRB) 11

S. 7 Union Solicitation on Employer Property 12

Canada Post (1995 CIRB) 12

S. 14 Remedies for Unfair Labour Practices 12

National Bank of Canada Int’l Union (1984 SCC) 12

R. v. K-mart Canada (1982 Ont. CA) 12

Professional Responsibility of Lawyers 13

Law Society v. Rovet (1992) 13

The Bargaining Unit 13

How do labour boards determine the appropriate bargaining unit? 13

Metroland Printing (2003 OLRB) 14

One Employer, Multiple Locations 14

(De)Certification 15

Sectoral Certification in Under-Represented Workplaces 15

Fast Food Workers 15

Sale or Transfer? Successor and Common/Related Employers 15

Ajax (Town) v. Union 16

Common or Related Employer Applications 16

White Spot v. BC Labour Relations Board (1997 BCSC) pg. 365 16

Duty to Bargain (In Good Faith) 16

How bargaining ends 17

Noranda Metal Industries (1975 CLRB) 17

Content of the Duty to Bargain in Good Faith: Hard vs. Surface Bargaining 17

United Steelworkers of America v. Radio Shack (1980 OLRB) 18

Union v. Canada Trustco (1984) 18

Langille and Macklem: “Beyond Belief: Labour Law’s Duty to Bargain” pg. 410 18

Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC) 18

CAW Canada v. Buhler Versatile (1991 MLRB) 19

First Offer = Last Offer, “Final Offer” 19

Last Offer Selection 19

Duty to Disclose and Share Information 19

Westinghouse Canada (1980 OLRB) 19

Consolidated Bathurst Packaging (1983 OLRB) 19

S. 53, 54: Joint Consultation and Adjustment Plans 19

Remedies for Bargaining in Bad Faith 20

Royal Oak Mines v. Canada (1996 SCC) 20

Buhler Versatile 20

S. 55 First Contract Arbitration 20

Yarrow Lodge (1993) 21

Industrial Conflict: Why do we allow strikes? Why do workers strike? 21

Public Sector Unions on Strike 21

S. 59, 60: How do you get into a legal strike position in BC? 21

The Constitution and the Right to Strike 22

Alberta Reference (1987 SCC) 22

What is a strike? Why not strike? 22

CWC v. Graham Cable TV/FM (1986 CLRB) 23

Ontario Secondary School Teachers’ Federation v. School Board (1999 OLRB) 23

BC Terminal Elevators Operators’ Assn. v. Grain Workers’ Union (1994 CLRB) 23

Strike Prohibition and Sympathetic Action 23

Int’l Longshoremens’ Association v. Maritime Employers’ Association (1979 SCC) 24

S. 63 BC’s Exception to Picket Line Rule 24

Hot Cargo and Hot Edict Clauses 24

Lockouts 25

Westroc v. Union (1981 OLRB) 25

Jurisdiction: 3 Forums Regulating Industrial Conflict 25

Disputes arising from strikes and picketing 26

Strike and the Purposive Definition 26

BC Public School Employer’s Assn. v. BCTF (2005 BCCA) 26

Picketing and Freedom of Expression 26

Why do we allow picketing? 27

S. 65 Types of Picketing: Primary, Common Sight, and Secondary 27

Canex Placer Limited (1975 BCLRB) 28

Harrison v. Carswell (1976 SCC) 28

Secondary Picketing 28

Why would we want to limit secondary picketing? 28

Why do we allow secondary picketing? 28

Hersees of Woodstock (1963 Ont. CA) pg. 524 28

The Charter, Striking and Picketing 28

K-Mart v. UFCW (1999 SCC) 28

Pepsi v. Union (2002 SCC) pg. 532 29

Re Canadian Forest Products (Canfor Mill) (2006 BCLRB) 29

Ally Doctrine 29

Industrial Conflict: Job Rights of Strikers and Replacement Workers 30

Royal York Hotel (1962) 30

CALPA (Eastern Provincial Airways) 30

Why allow temporary replacement workers? 30

Why does BC ban temporary replacement workers? 30

S. 72, 73 Essential Services 31

Result of Essential Services Declarations: Interest Arbitration 31

The Individual Employee under Collective Bargaining 31

McGavin Toastmaster Ltd. V. Ainscough (1975 SCC) 31

Allen v. Alberta (2003 SCC) 32

Steele v. Louisville & Nashville Railroad Co. (1944 US SC) 32

Union’s Duty of Fair Representation 32

Content of the Duty 32

How far should duty of representation extend? 3 approaches 33

Human rights issues and the Duty 33

Central Okanagan 33

K.H. v. CEP Local (1997 Sask. Labour Relations Board) 34

Lavigne v. OPSEU (1991 SCC) 34

R. v. Advanced Cutting and Coring (2001 SCC) 34

Employment Standards Legislation 34

Re Becker Milk Co. (1973 OESA designee) 35

Re: Renaud (1999 BCEST) 35

Termination of Employment 35

Slaight Communications v. Davidson (1989 SCC) 36

Avenues to Address Employment Discrimination: Charter, Human Rights Act, Tort 36

Formal vs. Substantive Equality 37

Direct vs. Adverse Effect Discrimination (and Employer’s Defences) 37

BC v. BCGSEU (The Meiorin Grievance) (1999 SCC) 37

Vriend v. Alberta (1998 SCC) 38

Employment Discrimination 38

Grounds for Discrimination: Sex 38

Bliss (1979) 39

Brooks v. Canada Safeway (SCC) 39

Janzen v. Platy Enterprises (1989 SCC) 39

Shaw v. Levac Supply (1991 Ont. Bd. Inq.) 39

Grounds for Discrimination: Disability 39

Shuswap Lake General Hospital v. BC Nurses’ Union (2002 BCCA) 40

Union’s Duty to Accommodate 40

Central Okanagan School District v. Renaud (1992 SCC) 40

Globalization of Labour 41

What role does the law play in achieving ideal labour conditions? 41

International Labour Organization 42

Common Law Contract of Employment

- Most employees have no written contract of employment

- Employment relationship can be subject to any agreed upon terms that do not offend statutes such as the Employment Standards Act, Human Rights Code, Occupational Health and Safety Act, Workers’ Compensation Act

- In practice, employers dictate these terms

To end employment relationship:

- Employer must have “just cause” for termination or provide “reasonable notice” (or pay in lieu of notice)

- Wrongful Dismissal:

o The employer dismisses the employee without alleging cause and without giving notice or wages as required by the contract (express or implied)

o The employee quits in response to a repudiatory breach of the employment contract by the employer (constructive dismissal)

o The employer dismissed the employee, alleging a cause that is not proved

o The employee is dismissed in breach of a statutory rule governing the employment relationship or in breach of the administrative law duty of procedural fairness

Where the contract refers to notice, the court looks to intentions of the parties, however, this is rarely done, so courts will decide what is considered a reasonable notice period

Seneca College v. Bhadauria 1981

- Court won’t recognize common law tort of discrimination

- Common law doesn’t let you sue for refusal to hire (for any reason)

- Court can’t force parties to enter into contractual obligations with one another, or to enter into an employment relationship

- Court recognized “wrongful hiring” – damages for people who are lured away from a good job for a better one, but in the end, the new job sucks

Reasonable Notice

- ESA: contains minimum standards of reasonable notice (statutory guarantees)

- 2 weeks if employed one year, extra week for each additional year, max 8 weeks

o Bring complaints before employment standards adjudicator

- Common law guarantees are way higher… So why do we have these statutory minimums? Why is the # of weeks so low?

o Want to encourage people to go back to work

o It’s only for people who were dismissed without cause, so employers would argue just cause, if termination pay minimum was way higher

- Wrongful dismissal lawsuits: asking for reasonable notice, not reinstatement

- Upper limit of reasonable notice: 2 years

Edna Cronk v. Canadian General Insurance Co. (1994 Ont. CA)

- Issue: what is the period of notice is she entitled to?

o Trial judge treated her like upper management b/c of length of service, age, gender, lack of education and training, few options for employment, stigma

- CA: Cronk wasn’t entitled to the same period of notice as someone in management

o Employers need to predict what they’ll need to pay if they downsize

o Re-employability isn’t only factor to consider when determining notice

o There’s less stigma getting let go from crappier jobs

- Common law can’t force an employer to keep someone on

- Common law can’t restore your employment, even if you have seniority, but it can ensure that you’re entitled to money

- Dissent: Weiler found it “troubling” b/c of the compounding inequality

Just Cause for Termination

- Employers can specify what is “just cause” for dismissal, as long as it doesn’t violate the statute, but they rarely set out the terms (problematic)

- Q of degree: Is it enough that the employee did something “wrong” to get fired?

- Courts are reluctant to find just cause

- Most employers just pay off the worker, don’t argue “just cause” b/c employers should use other methods to deal w/misconduct (discipline) before firing worker

- No such thing as “near cause” for dismissal (standard for just cause is very high)

McKinley v. BC Tel (2001 SCC)

- Is any degree or kind of dishonesty enough for just cause?

- Usually, dishonesty is enough for just cause, but need to look at circumstances

- Dishonesty must be seriously fraudulent before it amounts to just cause

- The test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship

History of Unions and the Wagner Act

- Unions were criminalized, viewed suspiciously as criminal conspiracies to artificially raise wages to raise prices, manipulate the market, disrupted economy

- Also: politically suspicious, linked to (gasp!) communism

- Laws changed, forming a union wasn’t illegal – but still, no legal obligation on the employer to recognize or bargain with the union

- Earliest strikes were “recognition strikes” which are illegal today

Wagner Act (US)

o Guaranteed right to join a union and bargain collectively

o Employer must recognize union as the only way to bargain with the workers

o All workers represented by the same union, and all had to be bound by the terms of employment that the union negotiated

o Right to strike if failed negotiation

o If workers were happy, they could choose not to be unionized

- Roy Adams: Unions help individuals get greater economic power, workers shouldn’t be forced to join

- Europe: the focus isn’t on the economic effects, but on industrial democracy – value in allowing workers to participate in their own negotiations… so unionizing is universal, assumes that no rational person would refuse to join, issue of recognition of the union is not a big deal

- North America: employers try to interfere with formation of unions, like an election campaign where the employer “campaigns” to show why union is bad

- Collective bargaining legislation in Canada is not universal and excludes certain occupations from forming union, collective bargaining, striking

The Constitution and Collective Bargaining

- 1987 Labour Trilogy SCC: Charter s. 2(d) does not protect the following rights:

o Right to organize (a union)

o Right to bargain collectively: force employer to recognize, bargain w/union

o Right to strike

- S. 2(d) only protects the right to form an association and to gather in groups to exercise other protected rights, such as freedom of expression, religion

- Protects the right to do things in a group that are legal for the individual

- Issue: what about things that are only meaningful when you do them as a group? Court couldn’t come to a conclusion, didn’t say that it automatically made that a protected activity

- Dickson: 2(d) should protect the right to organize, bargain collectively, and strike

- Some said, the trilogy happened because the labour movement was super strong at the time, but it was (mostly) reversed, restrictive approach has been expanded

Note: s. 32 Charter applies to government, public employer, challenges to legislation

Delisle (1999 SCC)

- RCMP officers prohibited from forming a union, but 2(d) wasn’t violated, b/c RCMP officers have an association that does the same thing that unions do, and they weren’t vulnerable group, so as a practical matter, officers were still protected

Dunmore v. Ontario (AG) (2001 SCC)

- S 2(d) extends the right to organize and form a union to vulnerable workers (but not to bargain collectively or strike)

- Note: legislation passed to limit/restrict the effects of Dunmore

Health Services and Support Bargaining Assn. v. BC (2007 SCC)

- S. 2(d) protects right to bargain collectively, negotiate contract

- Limitations: the right is procedural, and there’s no right to get a particular outcome, it just guarantees access to a procedure:

o Recognize and bargain with the union

o Duty to bargain in good faith

- 2(d) is only violated when there’s ‘substantial’ interference w/collective bargaining

- Court: s. 15 wasn’t violated (right to equality)…not about discriminating against workers (female dominated group of hospital cleaners)

Justifications for collective bargaining

1. Industrial Democracy

o Labour is not a commodity, people aren’t resources to be traded

o Work is a site of participation of individuals who collaborate on decisions

2. Economic Model

o Helps workers achieve gains in the workplace

o Response to inequality in the workplace

o Theory implies that it’s a sign of failure on the side of management, because it shows that workers aren’t happy

o Model has driven labour legislation in US and Canada

Union Security Clauses: Voluntary Check off, Rand Formula, Closed Shop

Individual workers can’t negotiate outside of the union agreement, so some people don’t support it because they think they are worth more, would rather bargain individually

Voluntary Check off

- Weakest form of union security

- Don’t have to join union, but you can

- If you join, and you identify yourself as a member, employer will take garnish your wages and pay dues to union

- Minimum standard in BC

- Problem: free riders get benefits of collective agreement, stuck with what the union negotiates on their behalf, but not forced to join

Rand formula

- No union membership requirement but, everyone must pay dues, and everyone’s bound by collective agreement

- Most unions in Canada negotiate for this one because everyone has to pay