Random Alcohol Testing Curtailed: SCC

An employer cannot unilaterally impose random alcohol or drug testing (even as a safety measure in a dangerous workplace) absent evidence of an existing problem with alcohol use in the workplace following the 6-3 decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34. The majority agreed with the arbitration board's conclusion that it was an unreasonable exercise of management rights under the collective agreement to impose the testing in these circumstances, but went on to say that such testing may well be justified "(i)f it represents a proportionate response in light of both legitimate safety concerns and privacy interests." These articles discuss the decision:

• Supreme Court of Canada quashes random alcohol testing in dangerous workplace - Employment Law Today;

• SCC says no work alcohol tests without prior signs of problems - Lawyers Weekly;

• Supreme Court of Canada rules on random alcohol testing: The door is open, but the path is unclear - Gowlings.

Supreme Court Upholds Workers' Compensation "Trade-off"  

The Supreme Court dismissed negligence claims initiated under federal marine law by the estates of two fishermen drowned at sea in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, finding that there was no operational conflict between federal marine law and provincial workers' compensation law and that the statutory bar of the provincial scheme applied. The CBA article The Historic "Trade-off" discusses the impact of the decision.

Employee Can Continue with Negligent Misstatement Claim: MBQB

In Woloshen v. Manitoba Baptist Home Society Inc., 2013 MBQB 191, the court dismissed the defendant employer's motion to stay proceedings on the basis that the dispute was governed by a collective agreement which deprived the court of jurisdiction. The court found that the matter in dispute (whether the plaintiff was induced to leave her casual nursing position by misrepresentations concerning her ability to transfer her seniority to the permanent position) did not arise from either the restricted or full collective agreement.

Absenteeism and the New Just Cause Standard: MBLB

The Manitoba Labour Board decision in North Perimeter Service Centre, Inc v JH, 2013 CanLII 18602 (MB LB) is the first consideration of the "just cause" standard in s.62(1)(h) of The Employment Standards Code, which came into force January, 2012. Previously the section required employers to show employee misconduct in order to dismiss without notice or pay in lieu of notice. Under the new standard the employer must prove just cause for termination. Applying common law jurisprudence and a contextual analysis to interpret the just cause provision, the board found that the termination of the employee was a disproportionate response to his limited and employer-condoned absences from the workplace. The board awarded the employee four weeks' wages in lieu of notice and costs under s.125(5)(a) of the Code.

Update on Temporary Foreign Workers Program

Further changes to the Temporary Foreign Workers Program effective July 31, 2013 are outlined in this government release from Employment and Social Development Canada. They include a fee for labour market opinion processing, a new language assessment restriction, new advertising requirements, and additional questions on the labour market opinion application designed to ensure that the program is not used to facilitate the outsourcing of Canadian jobs.

For further information on this topic consider attending Recent Developments with the Temporary Foreign Worker Program, an MBA Immigration Law section meeting on September 11, 2013, from 12:00 - 1:30 p.m. at the offices of Fillmore Riley LLP. Howard Jones, Senior Development Officer at Service Canada, Temporary Foreign Worker Unit, is the featured speaker.

Recommended Reading

Davis LLP has posted several papers from its Employment and Labour conference online that are worth reviewing:

• "You Are What You Tweet": Perks and Perils of Social Media - examines recent cases dealing with the dangers of social media for employers;

• Gone But Not Forgotten?: Navigating the Legal Landscape of Statutory Leaves of Absence - this comprehensive look at how employers should deal with employees on long and short term leave and what to do when they return, includes charts summarizing the legislative framework in each jurisdiction;

• You Think You're Stressed!?: Mental Health Issues in the Workplace - examines the evolving law respecting workplace mental well-being;

• HR's Toughest Calls - a "guide for HR practitioners, in-house counsel and individuals who manage 'people issues' in the workplace."

Judicial Review of Human Rights Cases - Recent Key Decisions - this detailed paper, prepared for the OBA's 2013 Annual Human Rights Update, examines the important cases from 2012 and 2013 in the evolving human rights jurisprudence.

Recent Developments in Workplace Technologies and Privacy - this Practice Points article examines the developing case law balancing employee privacy expectations and employer monitoring.  

The June 2013 edition of Perspectives, the CBA's Labour and Employment Law section newsletter, contains articles on recent trends in damage awards, director liability for unpaid wages, discrimination on the basis of "social condition", and the duty to accommodate caregiving needs.  

These Lawyers Weekly articles deal with employment and labour law topics:

• Challenging the 'right' to telecommute ­ - considers whether Canada's human rights legislation would protect an employee's right to telecommute;

• The nuances of temporary layoffs - discusses a new approach to temporary layoffs and constructive dismissal in Trites v. Renin Corp, 2013 ONSC 2715;

• Comply or explain why - discusses the underrepresentation of women on corporate boards and why employers need to develop strategies and policies to promote diversity in corporate leadership.

Find out what's topical on Canadian employment and labour law blogs in the following posts:  

• The State of Whistleblowing in Canada - this Slaw post reviews the federal and provincial law on whistleblowing by employees;

• Will work for free!: employers, beware of offers of free work by unpaid interns - this McMillan article addresses what employers considering work for free offers need to know;

• New cases change the rules for damages in wrongful dismissal cases - cases since Honda ­have shown that Wallace and punitive damages are far from dead according to the author of this article on recent punitive damages cases;

• Employment Contracts: The Twelve Most Common Avoidable Drafting Errors - a practical guide and attached checklist for drafting employment contracts from Gowlings;

• Non-union retirees win class action lawsuit over reduced benefits in O'Neill v. General Motors of Canada - this article from The Court discusses a recent Ontario Superior Court class action decision concerning the reduction of post-retirement benefits of non-union retirees;

• Gender identity and gender expression under the Human Rights Code: One year later - this article comments on Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977, the first Ontario case to discuss gender identity issues in the workplace since changes to their act.

Joint CPD Program for Administrative Adjudicators

The Law Society is partnering with the Manitoba Council of Administrative Tribunals and the Society of Ontario Adjudicators and Regulators to present the all day program Effective Decision Writing for Administrative Adjudicators on October 29, 2013. University of Ottawa professor Pamela Chapman and expert local facilitators will review the components of well-reasoned decisions and core writing principles, and provide written materials, checklists, and decision samples. Participants will work with expert coaches in small group workshops. Register before October 7, 2013 to take advantage of the early bird rate.

National Conference: CBA

The Evolution of Advocacy and Administrative Justice, the CBA's 14th annual Administrative, Labour and Employment Law Conference, will be held November 28-29, 2013, in Ottawa, Ontario. In addition to the usual year in review and view from the bench sessions, program topics include Charter advocacy and privacy issues, recent developments in human rights law, and interest arbitration. The Honourable Freda Steele will speak at a View from the Bench plenary session and Mr. Justice Louis LeBel of the Supreme Court of Canada will conduct a "fireside chat." For further details see the conference agenda.

Pitblado Lectures

The 2013 Isaac Pitblado Lectures, titled Human Rights Challenges and Achievements, will take place November 22-23, 2013, at the Fort Garry Hotel. Presenters will cover a variety of topical human rights issues including equality jurisprudence, the future of human rights tribunals and commissions, and how international human rights law impacts Manitoba practice. Register before October 11, 2013 to take advantage of the early bird discount.