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Labour Arbitrations

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 »

Physical assualt justified discharge of short service employee, even though provoked by "bullying"

Jurisdiction: - Ontario

National Steel Car Ltd.  v. United Steel Workers of America, Local 7135 [2005] O.L.A.A. No. 585 (QL) (Craven) (September 30, 2005)

Arbitrator upholds 3-day suspension for local union president who copied business records without permission

Jurisdiction: - Ontario
Sector: - Media - Unions

North Bay Newspaper Guild v. North Bay Nugget, [2005] O.L.A.A. No. 476 (QL) (Luborsky)

The Duty to Accommodate in 'Hybrid' Cases

Jurisdiction: - British Columbia
Sector: - Forestry

Published in Management Rights journal (Vol. VIII, No. 1, 2005), pp. 436

In its decision in Fraser Lake Sawmills, the B.C. Labour Relations Board stated that when faced with employee misconduct that is attributable to both an underlying addiction and to culpable factors ("hybrid cases"), the employer must fashion a response that addresses all circumstances of the case. This could include discipline for the culpable aspect of the misconduct while at the same time imposing administrative measures for the non-culpable aspect.

As I explain in the article (see the link below), the Board also stated that the underlying disability must be accommodated.

In the first decisions after Fraser Lake Sawmills dealing with addiction issues, the role of the duty to accommodate was generally overlooked as the labour relations community struggled with how the Board's decision should be applied in practice. However, in two arbitration decisions issued in 2005, the arbitrators discussed how the duty to accommodate should be addressed in hybrid cases.  read more »

Charter compels disclosure of accuser's medical records in case where care attendant fired for patient abuse

Jurisdiction: - Prince Edward Island
Sector: - Health Care

Prince Edward Island Union of Public Sector Employees v. Provincial Health Services Authority, [2005] P.E.I.L.A.A. No. 1 (QL), [2005] P.E.I.L.A.A. No. 3 (QL)

"Human Rights, Privacy and the Workplace"

"Human Rights, Privacy and the Workplace" is the title of a paper written by Enid J. Marion and Andrea Zappavigna, both of Harris & Company in Vancouver.

The paper was written for the Human Rights Conference (Continuing Legal Education of BC) in November 2004.

The Table of Contents is as follows:  read more »

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)

Presentation: "Labour Relations Update for Unionized Employers"

Jurisdiction: - British Columbia - Canada/Federal

Today was the 2004 Lawson Lundell Labour & Employment Law annual client seminar. Along with my co-presenter, I did a presentation entitled "Labour Relations Update for the Unionized Employer", which was a review of the key labour law cases and developments from the past 12 months.