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BC Labour Relations Board Upholds Dismissal for Viewing Pornography

Jurisdiction: - British Columbia
Sector: - Education

In University of British Columbia and CUPE Local 2950 (2005), 138 L.A.C. (4) 358; aff'd BCLRB No.B288/2005, the grievor was dismissed by UBC on the basis that he had used the university computer equipment for the purpose of viewing and exchanging sexually explicit material, inclcuing conversations with an under age individual, such conduct being contrary to UBC's technology policy.

The policy stated that illegal use of the computer system included the distribution of pornography materials to minors and child pornography it did not expressly prohibit the viewing the adult pornography.

On this point the arbitrator concluded that the fact that viewing adult pornography was not identified specifically as an example of an acceptable and unacceptable use cannot be read as endorsing access to adult pornography as an acceptable use.

In addition the departmental directive had been issued that had warned staff to use he computers for unprofessional purposes with the most obvious example the viewing of inappropriately materials such as pornography.  read more »

Are political protests by employees illegal labour strikes?

Jurisdiction: - British Columbia
Sector: - Education - Health Care

Published in CBA National Labour and Employment Law Section Newsletter (September 2004)

Are "political protests" strikes in which employees do not attend work and/or impede others from attending work materially different from a labour strike? If so, are they permitted while a collective agreement is in force?

In two recent decisions issued within a month of each other -- Health Employers' Assoc. of B.C., BCLRB No. B64/2004 ("HEABC") and B.C. Teachers Federation, BCLRB No. B92/2004 ("BCTF") the B.C. Labour Relations Board arrived at different conclusions. In the HEABC case, vice-chair O'Brien, after conducting a Charter of Rights and Freedoms analysis, stated that in certain cases political protest strikes are acceptable.

In contrast, in the BCTF case, vice-chair Saunders, after also conducting a Charter analysis, concluded that in no circumstances are such political strikes permissible. Given that these two decisions are impossible to reconcile, reconsideration hearings can be expected in one or both.

Arbitrators can award damages in lieu of reinstatement

Jurisdiction: - Alberta - British Columbia
Sector: - Education

Published in CBA National Labour and Employment Law Section Newsletter (September 2004)

In a recent decision -- Alberta Union of Provincial Employees v. Lethbridge Community College 2004 SCC 28 -- the Supreme Court of Canada considered whether an arbitrator can award damages in lieu of reinstatement if he or she finds that an employee had been dismissed without just cause. In the result, the court affirmed that while the general rule is that an employee should be reinstated in such cases, in exceptional circumstances, arbitrators can depart from this rule when they find that "the employment relationship is no longer viable."

In this case, an employee was dismissed for failing to meet deadlines and not completing her work. Although the arbitration board determined that the employee was indeed incompetent, it also found that the College failed to comply with the requirements for dismissing her on grounds of non-culpable deficiency.  read more »

Arbitrator assesses when employer can suspend employee without pay pending disposition of criminal charges

Jurisdiction: - British Columbia
Sector: - Education

CUPE, Local 4177 v. Nechako Lakes School District, No. 91 (2004) 134 L.A.C. (4th) 100 (Ready)