Labour & Employment Law

I. Legislative Changes

Federal Bill C-525 has been passed into Law

The Canadian Parliament has amended the provisions of the Canada Labour Code, the Public Service Labour Relations Act, and the Parliamentary Employment and Staff Relations Act to require that all representation votes for certification or decertification involve a mandatory secret ballot vote. The previous system permitted a “card check” process, whereby employee support cards would be checked by labour relations officers to confirm employee wishes on union representation. This change comes into effect on June 16, 2015. This new system for federally regulated labour relations is almost identical to the mandatory vote system currently in place in Saskatchewan for provincially regulated workplaces.

The Labour & Employment Practice Group at McDougall Gauley LLP regularly advises federally regulated employers on federal statutes, regulations and practices that impact federally regulated workplaces.

Federal Changes to Public Holiday Pay now in Force

Division V of Part III of the Canada Labour Code addresses general holidays. Until now, different formulae have been used to calculate the amount to be paid to an employee for each general (i.e. Stat) holiday depending on whether they are paid on a monthly, weekly, daily, hourly, or some other basis. This system has been criticized as being confusing for employers, specifically when determining which formula applies. Furthermore, to qualify for holiday pay according to the previous provisions of the Code, an employee must have worked at least 15 of the 30 days preceding the general holiday. This requirement excluded many part-time workers from being eligible for holiday pay.

For each general or statutory holiday, employees shall now be paid holiday pay equal to one twentieth (1/20th) of the wages that they earned, excluding overtime pay, in the four-week period immediately preceding the week in which the general holiday occurs. Employees paid on commission will receive one sixtieth (1/60th) of the wages they earned, excluding overtime pay, over a 12-week period to reflect the fact that their wages can fluctuate greatly. In other words, all employees will receive holiday pay in proportion to the number of hours they worked leading up to the general holiday. Furthermore, the requirement that employees work at least 15 days in the 30 days preceding the general holiday will be removed, which will allow many part-time workers to qualify for holiday pay. To qualify for holiday pay employees will continue to be required to have been employed by their employer for at least 30 days.

II. Noteworthy Court and Arbitration Decisions

Labour Law - Labour Relations Board Processes Continue to be Challenged and Scrutinized

In United Food and Commercial Workers, Local 1400 v Saskatchewan Joint Board, RWDSU, 2015 SKQB 84 (CanLII), UFCW Local 1400 challenged the Board’s processes in reaching its decision on a successorship application. One member of the hearing panel of the Saskatchewan Labour Relations Board was unable to attend the last day of the hearings, but attended by telephone. At the conclusion of the day’s hearings, the hearing panel adjourned for 20 minutes and then returned with an oral decision. Questions around proper quorum and the absent member’s access to written material filed during the last day of hearing were placed before the Court. UFCW and the employer also raised the Board’s reference to extrinsic evidence in its reasons for its decision, like union and government websites, that were not placed before the hearing panel by any of the parties throughout the adjudication process. Lastly, questions about procedural fairness were raised with the Court.

The Court found that the reliance on extrinsic evidence that was not placed before the hearing panel did not create an unfairness to the parties, even though it was technically improper. The absent hearing panel member had listened to the evidence and the argument from the parties over the phone, even though he did not have physical access to the documents. The Court concluded that the absent panel member must have felt comfortable enough with the issues to proceed without having physically read the materials, after hearing about their contents in the course of the hearing. In the end, the Court found that the Board’s decision was within the range of reasonable options and should not be disturbed.

This recent case is one of several cases where parties have challenged the Saskatchewan Labour Relations Board’s processes on various issues in the application, investigation or adjudication stages.

The Labour & Employment Practice Group at McDougall Gauley LLP has recent and direct experience in guiding employers through the detailed processes used by the Saskatchewan Labour Relations Board and challenging those processes when appropriate.

Employment Law – Summary Judgment in Wrongful Dismissal Claim

In Stevenson v First Nations University of Canada Inc, 2015 SKQB 122 (CanLII), the Court summarily dismissed a wrongful dismissal claim in which the employee represented himself in the proceedings, before the full trial began. The Court considered a combination of facts, some of which arose from the questioning of the employee in the course of the proceeding, some of which were contained in affidavit materials, and other facts which arose from the sentencing hearing wherein the employee had been criminally convicted of fraud. It concluded that there was ample evidence to support a finding that the employer had sufficient grounds to summarily dismiss the employee for cause.

The Court reviewed the evidence on the file, before the trial commenced, about false expense claims, the consistency of the employee’s comments to the Court and before another court, and the written admissions of the employee in his Statement of Defence, in transcripts of answers to questions, and in the agreed statement of facts submitted to another court. In the end, the Court stated:

I have reached these conclusions having weighed the evidence, drawn inferences from the evidence, and assessed Mr. Stevenson’s credibility.

Sometimes, a lengthy and expensive trial is unnecessary to confirm an employer’s decision to terminate an employee for just cause. The Labour & Employment Practice Group at McDougall Gauley LLP has recent and practical experience in advising on the length and estimated costs of litigation to a client, once a Statement of Claim has been served.

Privacy – Search of Employee Emails

Privacy continues to be an evolving and growing area of labour and employment law. In 2015, a labour arbitration decision, Saskatchewan Government and General Employees Union v Unifor Local 481, 2015 CanLII 28482 (SK LA), considered whether an employer could search its email system when investigating concerns about possible employee misconduct. Interestingly, SGEU was the employer in this case. The search included a review of the employee’s emails and the employer sought to file emails between the employee and his spouse at the arbitration hearing. The decision ruled on the admissibility of the personal emails, which were found on the employer’s email server.

The arbitrator concluded that the emails ought not to be admitted into evidence at the hearing. He wrote:

I am satisfied while the need for an investigation of the Grievor was justified, the search of emails to and from his spouse was not reasonable at the time it was carried out. Relying only on second or third hand information about the Grievor, the Employer’s first and immediate response was to scrutinize his personal emails. There was no evidence that alternatives to this invasive search were considered, possibly because the Employer believed that it owned the email system and no barrier existed to such scrutiny. It was also relatively simple to carry out.

I accept the Doman principle that it is unreasonable to conduct a highly intrusive search before other less intrusive alternatives are considered.

This case appears to restrict employers in their ability to search their own email system unless they have considered (and possibly attempted) all other investigative options first.

The Labour & Employment Practice Group at McDougall Gauley LLP has recent and direct experience in advising employers on how and when an employer can search its email system for employee-generated emails.

Privacy - Post-Incident Drug Testing

In a recent labour arbitration decision, United Steelworkers Local Union 5890 v Evraz Regina Steel, 2014 CanLII 37939 (SK LA), a labour arbitrator reviewed what privacy considerations must be examined before a post-incident drug test is carried out. An employee had backed up a company vehicle on the worksite into a guard rail and had cause minor damage to the vehicle. He failed to report it in a timely manner, but admitted to doing it when confronted about it. He was asked if he had been drinking, which he denied. He was sent for a post-incident drug test.

The arbitrator concluded that the minor accident was not a significant work-related incident or a near miss, and therefore did not meet the criteria to justify a post-incident drug test. The fact that the employee failed to report it immediately should not have any bearing on the determination as to whether a drug test ought to be conducted on the employee.

The employer’s post-incident checklist and policy for drug testing were closely analyzed. In interpreting the employer’s checklist, the arbitrator concluded that the employee’s conduct in failing to report the incident was not “an act or omission to be considered” according to the employer’s own policy for when employee drug testing should take place.

This case confirms that post-incident drug testing must be consistent with any workplace policies in place, and must take into account the seriousness of the incident and the impact on the employee’s privacy. Post-incident drug tests are not an automatic response that employers can rely upon whenever an accident or near-miss occurs in the workplace. Other considerations must be examined before a drug test is conducted.

The Labour & Employment Practice Group at McDougall Gauley LLP has recent and direct experience in advising employers on drug and alcohol testing in workplaces.

Pension Plans

In Health Sciences Association of Saskatchewan v Heartland Regional Health Authority, 2015 CanLII 8698 (SK LA), an arbitrator was asked to determine whether a dispute over a pension plan was within his jurisdiction as an arbitrator. The grievance was filed in 2011, and related to an allegation that the employer failed to enroll the employee in the pension plan in 1989, but instead enrolled him in 1994. The Union was not certified by the Saskatchewan Labour Relations Board to represent the employee, as a member of a bargaining unit, until 1997.

The labour arbitrator agreed with Union counsel that The Pension Benefits Act, 1992 is an employment-related statute and is automatically incorporated into the terms of the collective agreement. He concluded that he had exclusive jurisdiction to hear the matter. He further stated that any different view could lead to a multiplicity of proceedings based on the pre-1997 and post-1997 time frames, potentially requiring two concurrent actions in two different forums for the same alleged breach by the employer.

The Labour & Employment Practice Group at McDougall Gauley LLP frequently deals with both jurisdictional issues in arbitration and pension plan rights/administration matters.