eLaw - Labour and Employment Law Update | November 2017 - No. 30

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Labour and Employment Law Update November 2017
In This Issue
Mandatory Unpaid Standby Not Fair Exercise of Management Rights: SCC
Jurisdiction When Discrimination Complaints
Transcend Collective Agreements: MBCA 
Random Drug Testing Challenge Back to Arbitrators: ABCA
Legislative Update
Manitoba Provincial Nominee Program Changes
Expanded EI Benefits in Effect Soon
New Workplace Legislation in Ontario
Recommended Reading
Winter Replays: LSM
2018 Mid-Winter Conference: MBA

Mandatory Unpaid Standby Not Fair Exercise of Management Rights: SCC

A management directive making after hours standby shifts mandatory (federal Crowns had previously been paid for volunteering to cover standby shifts for urgent immigration matters, regardless of whether they were called in to work) was not a proper exercise of management rights under the collective agreement, according to the Supreme Court of Canada in Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55. The court agreed with the grievance adjudicator that the “balancing of interests” assessment is the proper approach to determine whether a policy that affects employees is a reasonable exercise of management rights and that this determination is highly fact‑based. In this case, where there was no standby clause in either the collective agreement or the lawyers’ employment contracts, and where the directive affected the lawyers’ lives outside of working hours, the adjudicator’s decision that the directive was not a reasonable or fair exercise of management rights was reasonable. The court agreed with the Federal Court of Appeal, however, that the directive did not engage any liberty interests protected by s. 7 of the Charter.

Jurisdiction When Discrimination Complaints Transcend Collective Agreements: MBCA 

The central question addressed in Northern Regional Health Authority v Manitoba Human Rights Commission et al, 2017 MBCA 98, is when can a human rights tribunal adjudicate a complaint of discrimination in a workplace governed by a collective agreement?  The complainant, a personal care home healthcare aid whose employment was terminated for a second time when she was alleged to have violated the terms of a settlement agreement by being intoxicated outside her workplace, filed a complaint with the MHRC, arguing that the NRHA discriminated against her by failing to reasonably accommodate her disability (alcohol addiction). The MHRC adjudicator’s finding that the NRHA had violated the discrimination provisions of the Code was overturned on judicial review. The Court of Appeal agreed with the reviewing judge’s conclusion that an alleged breach of the Code giving rise to the termination of employment of a unionized worker is a matter within the exclusive jurisdiction of a labour arbitrator appointed pursuant to the relevant collective agreement to hear and decide, but not with his conclusion that the dispute between the complainant and the NRHA arose out of the collective agreement. In this case, said the court, the discrimination complaint transcended the particular collective agreement and was not in the exclusive jurisdiction of a labour arbitrator to decide. The court went on to find, however, that the MHRC adjudicator had taken too broad a view of what she could determine in the case, particularly with respect to the reopening of the settlement agreement between the parties and the principle of issue estoppel. In the end, the matter was remitted back to the reviewing judge to determine whether the adjudicator’s decision on the merits of the discrimination complaint and the remedies ordered was reasonable in fact and law.

Random Drug Testing Challenge Back to Arbitrators: ABCA

Suncor won the latest battle in its fight to implement random drug testing of oil sands workers in safety sensitive positions in Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313. The court upheld the lower court decision that the arbitration board erred by considering only evidence of drug abuse by bargaining unit members when a more holistic inquiry of the broader workforce was called for. The matter was remitted for a new arbitration by a fresh panel. These articles discuss the decision:

Alberta Court of Appeal Weighs In on Random Drug and Alcohol Testing – Bennett Jones

Albert Court of Appeal decision supports random workplace drug testing in safety-sensitive workplaces – DLA Piper

Suncor Wins Another Round in the Ongoing Random Drug Testing Fight – MLT Aikins

5 Years And Counting: Suncor Wins Another Round in its Fight to Introduce Random Testing - Stikeman Elliott LLP

Legislative Update

Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, was introduced and received first reading November 7, 2017. It amends the Canada Labour Code to strengthen the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the work place. For further information see the news release, backgrounder, report on consultations with Canadian stakeholders (released November 2, 2017) and the following articles:

Federal Government Introduces New Amendments To The Canada Labour Code To Address Workplace Violence And Harassment – McCarthy Tetrault

Attention all Federally Regulated Workplaces: Bill C-65 First Reading, First Look - Rubin Thomlinson

Strengthening the Prevention of Workplace Violence and Harassment – Slaw

Federal Government Unveils Enhanced Workplace Harassment and Workplace Violence Framework – BLG

Manitoba Provincial Nominee Program Changes

Manitoba announced changes to the MPNP effective November 15, 2017, including the restructuring of three existing immigration streams and the addition of a new stream. For further details see this Pitblado LLP article and this CIC newsletter. 

Expanded EI Benefits in Effect Soon

Changes to the Employment Insurance program promised in Budget 2017 come into effect December 3, 2017, as announced in a November 9, 2017  Employment and Social Development Canada news release. For a summary of the changes and the takeaways for employers see:

Federal Government Announces Expansion of Parental Benefits and Other Leave-Related Changes Under EI - BLG

December 3 Brings New EI Parental, Maternity & Caregiving Benefits – Baker McKenzie

New Workplace Legislation in Ontario

The Ontario government passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, on November 22, 2017 and it received royal assent on November 27, 2017. It makes significant changes to workplace legislation in Ontario, including the introduction of provisions for critical illness leave, the expansion of family medical leave, clarification of what’s meant by “equal pay for equal work,”  a $15 minimum wage rate, changes to labour relations, and a ban on mandatory high heels in the workplace, among many other things. This Torkin Manes LLP article elaborates on the changes.

Recommended Reading

Deadlines Looming for Businesses to Comply with Accessibility Legislation – the author of this MLT Aikins article points out the need for Manitoba public entities and private businesses to plan how they will comply with accessibility obligations on the horizon.

Non-medical Marijuana Use at Work; Medical Marijuana Use in the Workplace (both TDS LLP); and Exclusion of Medical Marijuana From Benefits Plan Contrary to Human Rights Act (Taylor McCaffrey LLP) – these are just some of several recent articles on how medical marijuana use is affecting the workplace. 

Video Surveillance and Employee Privacy and Chicken Caught: Privacy Commissioner Confirms Video Surveillance Should Be Last Resort For Organizations – these articles discuss a recent BC decision setting parameters for conducting video surveillance of employees. 

Restrictive Covenants in the Employment Context: How to Achieve Enforceability – this TDS LLP article discusses why non-competition clauses are notoriously hard to enforce.

Blue J Legal launches AI tool for employment law issues - this Canadian Lawyer article discusses the launch of new artificial intelligence software to help predict how courts would resolve employment law issues.

You’re Fired! Performance Deficiencies: When Is Termination the Answer? – this MLT Aikins article discusses proactive management of underperforming employees.

Top 10 Tips For Cybersecurity Employee Training – this Bennett Jones blog post stresses the importance of training employees to deal with cyber security risks.

Can Employers Be Subject to Class Action Suits from Foreign Workers? – this MLT AIkins article discusses a BC case in which the court certified a class proceeding against Mac’s Convenience Stores brought by foreign workers recruited to work under the temporary foreign workers program.

When Mitigation Income is Not Deducted from the Notice Period – this MLT AIkins post discusses an Ontario Court of Appeal decision outlining exceptions to the rule that income earned during the reasonable notice period is deducted from the amounts that would otherwise be payable as mitigation.

Winter Replays: LSM

For those who missed the earlier live presentations (or those who still need cpd hours), the Law Society has posted its list of winter replay offerings. Programs which may be of interest to labour and employment lawyers include: The Lawyer’s Guide to Understanding and Interpreting Drug Test Results (December 4, 2017); New Civil Queen’s Bench Rules: A Focus on Case Management, Proportionality and Expediency (December 12, 2017); as well as several practice management or general interest sessions.

2018 Mid-Winter Conference: MBA

Mark your calendars for the MBA’s 2018 Mid-Winter Conference, which will take place January 18-19, 2018 at the Fairmont Hotel.  Continuing professional development sessions of interest to labour and employment lawyers include: Dismissals Without Cause and Off-Duty Conduct; and What’s Diversity Got To Do With It.

 

ISSN 1916-3916

 

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