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.
nhassan@ropergreyell.com
@jnajeebhassan
1
Agenda – The Good,
the Bad and the Ugly
Supreme Court Decisions
Privacy
Human Rights
Labour Relations Board Decisions
Discipline
2
The Supremes
Three Important Cases
Right to Strike and Essential Services
Right to Collective Bargaining
Good Faith Performance of Contracts
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
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
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.
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
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.
Privacy
Disclosure of Bullying and
Harassment Incident
Surreptitious Surveillance
Disclosure of Contracts by Health
Authorities
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.
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.
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.
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
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.
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.
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.
Human Rights
Termination of Employees on LTD
Duty to Accommodate – Requesting
Medical Information
Duty to Accommodate –When is
Enough, Enough
Disciplining Disabled Employees
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.
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 nonculpable 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.
Duty to Accommodate
Requesting 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.
Duty to Accommodate
Requesting 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.
Duty to Accommodate
When 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.
Duty to Accommodate
When 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.
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.
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.
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.
Labour Relations Board
Decisions
Common Employers
Bad Faith Bargaining
Rationalization of Bargaining Units
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.
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.
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.
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.
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.
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.
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.
Discipline and Discharge
Breach of Patient Privacy
Insubordination
Dishonesty
Resident Abuse
Social Media Transgressions
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.
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.
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.
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.
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.
Insubordination
▪ Behavior escalated to calling supervisor a
liar and alleging harassment.
▪ The Employer terminated the employee’s
employment.
Insubordination
▪ There was a serious breach of trust
towards the employer and the supervisor.
▪ Termination of the Grievor was not an
excessive response.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
NAJEEB HASSAN
Partner
Roper Greyell LLP
Vancouver, BC
(604) 806-3820
nhassan@ropergreyell.com
@jnajeebhassan