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LABOUR ARBITRATION CONFERENCE 2006 (Toronto) Report
Presented by Lancaster House & University of Toronto Centre for Industrial Relations and Human Resources
At: Metro Toronto Convention Centre
Date: November 23, 2006
Report by John Bell, Chief Steward, YUFA
19 Dec 06 - There were brief introductory remarks, then the rest of the day consisted of panels on arbitration issues, each panel including an employer counsel, a union counsel, and an arbitrator; and of a working lunch where each table was presented with several somewhat exaggerated model cases to discuss.
LUNCH: I will deal with lunch first, to get the account out of the way. The model cases were somewhat exaggerated and simplified; each one had several questions which we at the table had to discuss and answer, and which then were referred to a panel of arbitrators to answer. The model cases were not overly useful, since they did not reference collective agreement clauses; however, I was heartened to find that my answers to the questions posed for the model cases were usually the same as the majority opinion of the arbitrators’ panel.
PANEL 1: Disability, Accommodation and Job Performance
I found this the most useful of the three panels. The point was made that this is a new and vexing field in arbitrations. What a disability is is rather vague, with a pretty wide definition. Damages and remedies in arbitrations tend to be smaller than in Human Rights awards.
From an arbitration and union point of view, there is a problem of competing interests between employees. And arbitrators should look at each individual situation for a solution. Arbitrators tend to choose solutions that don’t impact other employees’ rights, even if these solutions are more expensive. For instance, an employee in a job category that involves hard physical labour alternating with labour that is not physically taxing cannot expect to be reclassified in such a way as to do only the non-taxing labour, if this means an increase of physically taxing labour and a decrease in lighter labour for one or more other employees.
Legal accommodations for disability of an employee may not produce undue hardship for the employer. Employers tend to claim undue hardship if the employee fails to cooperate. Employers should investigate claims. The employer has Health and Safety responsibilities to the individual worker, other workers, and the general public.
An employee asking for accommodation should provide medical evidence; tell the employer about the problem; cooperate in the solution; participate in appropriate rehab problems. The point was made that substance abuse cases merit a hybrid approach.
PANEL 2: Psychological Harassment and the Poisoned Work Environment
This was a four-person panel, including a psychologist along with the other 3 members. This was the panel topic that was of most interest to me, in that it seemed framed to deal with problems that are not unknown at York University and which I, as Chief Steward, find perplexing. However, I did not find the panel as useful as I hoped. Everyone used up a lot of time simply saying that psychological harassment and a poisoned work environment are bad, counterproductive things.
Quebec and Manitoba have shown some interest in banning psychological harassment, and it is a good idea for a union to try to get it explicitly into the Collective Agreement. As well, employers should develop a policy. There are very few arbitrations as yet on this issue. A recent one in which psychological harassment was shown involved the TTC; the arbitrator found both the employer and the individual harasser liable. Psychological harassment includes not only yelling, cursing, constant demeaning comments, and threats; it also includes deliberate isolation, denial of privileges, and inequitable distribution of workload.
Courts recognize that arbitration is a proper forum for workers’ issues around poisoned workplace and psychological harassment. If the employer is doing the harassment, it cannot use “management rights” to excuse bullying. Further, if an employer is aware of coworker’s doing the harassing, and doesn’t use best efforts to fix the problem, the employer is liable. If coworkers are doing the harassing, the union may have to provide independent counsel for them.
Possibly because there is little case law on this issue, the panel discussion often veered into discussions of cases involving harassment on legally prohibited grounds, such as race and gender (even though this was not the topic of the panel). Insufficient effort was made to explain what connexion of legal jurisprudence, if any, there is between the two situations.
PANEL 3B: Applying the Charter of Rights, the Human Rights Code and the Employment Standards Act to the Collective Agreement
I chose this panel over 3A (Contracting Out and Reassignment of Work), as more relevant to the situation of YUFA members. It was informative but rather dull – it didn’t tell me much I didn’t already know. One interesting point was the importance of proving disrespecting, devaluing as part of proving discriminatory behaviour.
A Supreme Court decision has made the Code automatically incorporated into Collective Agreements. Rights under the code cannot be contracted in Collective Agreements. Also the Labour Relations Act gives arbitrators jurisdiction over rights. Statute benefits provide a minimum that Collective agreements may expand.
There was some discussion of mandatory retirement ending in Ontario, but nothing much was said that was germane to the situation of our 2006 cohort. It was mentioned that benefits discrimination on basis of age is still allowed, and also that there is a new question of whether employers will use performance evaluations as sharper tools with older employees.
A new area involves disclosure of information and privacy issues.
PANEL 4: Major Caselaw [sic] Update
Reasonable rules – they must apply to the employer’s business purpose, and if they affect an employee’s personal life, a higher standard of proof is required.
Punitive damages are an unclear area for labour arbitrations. However, increasingly arbitrators are taking jurisdiction.
Concordia University vs. 8 of its 9 unions over pensions, begins as a class action by one person representing members of Concordia’s pension plan. The Employer had taken a pension-contributions holiday from the pension plan. The Judge ruled to leave it to Arbitration. The court of appeal didn’t agree. The case is still ongoing, apparently.