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Index
COVER
COPYRIGHT
ABOUT THE AUTHORS
TABLE OF CONTENTS
CITATIONS AND ABBREVIATIONS
PART 1. EVIDENCE AND PROCEDURE
CHAPTER 1: THE ARBITRATION PROCESS
1.1 The Rules of Natural Justice
1.1.1 General
1.1.2 Audi Alteram Partem: The Right to Respond
1.1.3 The Rule against Bias
1.1.4 Death/Resignation of a Board Member
1.2 Sources of Jurisdiction
1.2.1 The Collective Agreement
1.2.2 Ancillary or Side Documents
1.2.3 Employment-Related Legislation
1.2.4 Charter of Rights and Freedoms
1.3 Weber: What Is the Proper Forum?
1.3.1 General – The Scope of the Weber Principle
1.3.2 Defamation and Other Tort Claims
1.3.3 Pension and Retirement Benefit Plans
1.3.4 Arbitration and Other Statutory Tribunals
CHAPTER 2: PROCEDURAL OBJECTIONS TO ARBITRABILITY
2.1 Grievances Arising under a Prior Collective Agreement
2.2 Defects in Form
2.3 Failure to Follow Grievance Procedure
2.4 Lack of Employee Signature
2.5 Individual, Group and Policy Grievances
2.6 Time Limits
2.6.1 Is the Language Mandatory or Directory?
2.6.2 Waiver
2.6.3 Continuing Breach
2.6.4 Laches – Excessive Delay
2.6.5 Statutory Discretion to Extend Time Limits
CHAPTER 3: FUNDAMENTAL OBJECTIONS TO ARBITRABILITY
3.1 Matters Not Covered by the Collective Agreement
3.1.1 General
3.1.2 Pre-Employment Matters
3.2 Collective Agreement Not in Effect
3.2.1 Whether Terms Retroactive
3.3 Settlement of the Grievance
3.4 Withdrawal of a Prior Grievance
3.5 Mootness
3.6 Matters Previously Decided
3.6.1 Res Judicata and Issue Estoppel
3.6.2 Prior Criminal Convictions
3.6.3 Arbitral Deference to Prior Awards
3.7 Functus Officio – Mandate Spent
3.8 Discharge of Probationary Employees
3.9 Insured Benefit Plans
CHAPTER 4: PRE-HEARING PROCEDURE
4.1 Entitlement to Notice/Status
4.2 Particulars
4.3 Production of Documents
4.3.1 Arbitral Jurisdiction
4.3.2 Scope of Production
4.3.3 Remedy for Non-Compliance
4.4 Summons to a Witness
4.5 Medical Examination of Employee
CHAPTER 5: PROCEDURE AND PROOF AT THE HEARING
5.1 Adjournment
5.1.1 Concurrent Proceedings
5.2 Public Access to the Arbitration Process
5.3 Disqualification of Counsel
5.4 Tape-Recording of Proceedings
5.5 Exclusion of Witnesses
5.6 Interpreters
5.7 Consolidation of Grievances
5.8 Onus of Proof, Order of Proceeding
5.9 Testifying by Teleconference
5.10 Motion for Non-Suit
5.11 Reply Evidence
5.12 The Rule in Browne v. Dunn
5.13 Medical Reports
5.14 Business Records
5.15 Credibility
5.16 Failure to Call a Witness
5.17 Withdrawal of Grievance
CHAPTER 6: ADMISSIBILITY OF EVIDENCE
6.1 Statutory Discretion
6.2 Best Evidence Rule
6.3 Charter Evidentiary Issues
6.4 The Rule against Hearsay
6.5 Exceptions to the Hearsay Rule
6.5.1 Necessity and Reliability
6.5.2 Res Gestae – “In the Course of the Act”
6.5.3 Admission by a Party
6.6 Similar Fact Evidence
6.7 Privilege
6.7.1 Statements in the Grievance Procedure
6.7.2 Documents Prepared in Contemplation of Litigation
6.7.3 Labour Relations Privilege
6.7.4 Public Interest Immunity
6.7.5 Privilege Based on Personal Privacy
6.8 Video Surveillance Evidence
6.9 Tape-Recorded Conversations
6.10 Polygraph Testing
6.11 Expert Evidence
CHAPTER 7: REMEDIAL POWERS OF THE ARBITRATOR
7.1 Modification of the Penalty
7.1.1 Post-Discharge Evidence: Québec Cartier
7.1.2 Arbitral Responses to Québec Cartier
7.2 Reinstatement
7.2.1 Damages in Lieu of Reinstatement
7.3 Declarations
7.4 Assessment and Quantification of Damages
7.4.1 The “Make-Whole” Principle
7.4.2 Weber Damages – Tort, Aggravated and Punitive Awards
7.4.3 Non-Monetary Losses
7.4.4 Improper Work Assignment – Damages to the Union At Large
7.4.5 Compensation for Tax Consequences
7.4.6 Interest
7.5 The Duty to Mitigate
7.6 Rectification
7.7 Interim/Injunctive Relief
7.8 Quia Timet – Compliance Order
7.9 Restitution and Set-Off
7.10 Costs
CHAPTER 8: ENFORCEMENT AND REVIEW OF AWARDS
8.1 Enforcement of Arbitration Awards
8.1.1 Enforcement by Filing in Court
8.1.2 Stay of Proceedings
8.1.3 Contempt of Court
8.1.4 Enforcement by Prosecution
8.2 Judicial Review of Arbitration Awards
8.2.1 Questions of Fact and Law
8.2.2 Procedural and Evidentiary Rulings
8.2.3 Access to Judicial Review by the Grievor
8.3 The Role of Labour Boards
8.3.1 Appellate or Review Role
8.3.2 Overlapping Jurisdiction with Labour Board
CHAPTER 9: DUTY OF FAIR REPRESENTATION
9.1 Scope of the Duty: General
9.2 Application for Judicial Review
9.3 The Impact of Human Rights Legislation
PART 2. DISCHARGE AND DISCIPLINE
CHAPTER 10: DISCHARGE AND DISCIPLINE: GENERAL PRINCIPLES
10.1 The Just Cause Standard
10.1.1 Collective Agreement Silent on Just Cause
10.1.2 Statutory Just Cause Standard
10.2 Culminating Incident and Prior Record
10.2.1 What Constitutes a Culminating Incident?
10.2.2 What Forms Part of the Prior Record?
10.2.3 Prior Non-Disciplined Conduct
10.2.4 Sunset Clauses
10.3 Onus of Proof and Order of Proceeding
10.3.1 Employee’s Failure to Provide an Explanation
10.4 Standard of Proof
10.5 Double Discipline Prohibited
10.6 Non-Compliance with Disciplinary Procedure
10.6.1 Union Representation and Other Protections: Is the Language Mandatory or Directory?
10.6.2 Sources of Union Representation Rights
10.6.3 What Triggers the Right to Union Representation?
10.6.4 Obligation to Advise of Union Representation Rights
10.6.5 Sufficiency of the Representation
10.6.6 Breach of Notice Requirements and Other Procedural Defects
10.6.7 Waiver
10.6.8 Reimposition of Discipline
10.6.9 Remedial Discretion
10.7 Delay in Imposing Discipline
10.8 Alteration of Grounds – When Permitted
10.9 Assessment of Discipline
10.9.1 Factors Affecting Penalty
10.9.2 Effect of Illness or Disorder
10.9.3 Progressive Discipline
10.9.4 Compensation in Lieu of Reinstatement
10.10 Non-Disciplinary Discharge – Innocent Incapacity
10.10.1 Loss of Licence or Professional Qualification
CHAPTER 11: DISHONEST AND ILLEGAL CONDUCT
11.1 General: Honesty and the Employment Relationship
11.2 Falsification of Records
11.2.1 Application Forms
11.2.2 Attendance and Production Records
11.2.3 Medical Certificates
11.3 Abuse of Sick Leave
11.4 Theft
11.4.1 Definition of Theft
11.5 Vandalism or Sabotage
11.6 Off-Duty Conduct
11.6.1 Criminal Convictions
11.6.2 Criminal Charges
11.6.3 Computer-Related Offences – Blogging, Facebook, Twitter
11.7 Onus and Standard of Proof
CHAPTER 12: DISLOYALTY AND BREACH OF TRUST
12.1 Breach of Trust
12.1.1 Improperly Accessing Confidential Information
12.2 Misuse of Work Time or Employer Resources
12.2.1 General
12.2.2 Working at Another Job or Operating a Personal Business
12.2.3 Use of E-Mail or the Internet to Access Pornography
12.3 Conflict of Interest
12.3.1 Public Sector
12.3.2 Private Sector
12.4 Public Criticism of Employer Policies
CHAPTER 13: INSUBORDINATE, VIOLENT AND ABUSIVE CONDUCT
13.1 Insubordination – The “Work Now, Grieve Later” Rule
13.1.1 Definition of Insubordination
13.2 Exceptions to the Rule against Insubordination
13.2.1 Health and Safety
13.2.2 Illegality
13.2.3 Union Officials
13.2.4 Personal Appearance
13.2.5 Medical Examinations, Procedures and Information
13.2.6 Grievance Procedure Would Not Provide Adequate Remedy
13.2.7 Grievance in Anticipation of Discipline
13.3 Workplace Violence
13.3.1 Statutory Requirements
13.3.2 Fighting, Assaults and Threats
13.3.3 Violence against a Supervisor
13.3.4 Harassment and Bullying
13.3.5 Assessment of Penalty
13.4 Sexual Harassment
13.4.1 Definition of Sexual Harassment
13.4.2 Assessment of Penalty
13.5 Patient/Resident Abuse
13.6 Lateness
13.7 Illegal Strikes/Strike-Related Misconduct
13.7.1 Definition of Illegal Strike
13.7.2 Onus of Proof
13.7.3 Assessment of Penalty
13.7.4 Discipline of Union Officials
CHAPTER 14: EMPLOYER RULES AND PRIVACY IN THE WORKPLACE
14.1 Validity of Employer Rules
14.2 Employer Rules Affecting Privacy
14.2.1 Searches
14.2.2 Drug and Alcohol Testing
14.2.3 Video Surveillance
14.2.4 Polygraph Testing
14.2.5 Biometric Scanning
14.2.6 Criminal and Police Record Checks
14.2.7 GPS, Telematics Devices, and Swipe-Cards
14.3 Rules Relating to Personal Appearance
CHAPTER 15: DISABILITY AND THE DUTY TO ACCOMMODATE
15.1 Innocent Absenteeism
15.2 Effect of Benefit Plans
15.3 Accommodation of Disabilities
15.3.1 Prohibition against Disability-Based Discrimination
15.3.2 Definition of “Disability”
15.3.3 Bona Fide Occupational Requirements: The Effect of Meiorin
15.3.4 Order of Proceeding
15.3.5 The Employee’s Duty
15.3.6 The Employer’s Duty
15.3.7 The Union’s Duty
15.3.8 Accommodation outside the Bargaining Unit
15.3.9 Drug and Alcohol Addiction
15.3.10 Deemed Termination Clauses
15.3.11 Human Rights Remedies
15.4 Certification of Fitness
15.4.1 Requirement for Reasonable Grounds
15.4.2 Independent Medical Examinations
15.4.3 Effect of Human Rights Legislation
15.5 Last-Chance Agreements
15.6 Attendance Management Programs
CHAPTER 16: OTHER FORMS OF SEPARATION
16.1 Quit
16.2 Retirement
16.2.1 Benefit Plans for Older Workers
16.3 Loss of Seniority
PART 3. CONTRACT INTERPRETATION
CHAPTER 17: INTERPRETING THE COLLECTIVE AGREEMENT
17.1 The Nature of a Collective Agreement
17.2 Limitations on Management Rights
17.2.1 Laskin School vs. Residual Rights School
17.2.2 General Duty of Fairness
17.3 Implied Terms
17.4 Use of Extrinsic Evidence to Interpret the Collective Agreement
17.4.1 Parole Evidence Rule
17.4.2 Ambiguity: Patent and Latent
17.4.3 The British Columbia Approach
17.4.4 Negotiating History
17.4.5 Past Practice
17.5 Use of Extrinsic Evidence to Found an Estoppel
17.5.1 The Rule in Equity
17.5.2 Arbitral Jurisdiction
17.5.3 The Elements of Estoppel
17.5.4 Must the Estoppel Relate to an Express Provision of the Collective Agreement?
17.5.5 Negotiating History
17.5.6 Representations to Individual Employees
17.6 Rules of Construction
17.6.1 The Plain Meaning Rule
17.6.2 Purposive Interpretation
17.6.3 Reading the Collective Agreement as a Whole
17.6.4 “Inclusion of the One Excludes the Other”
17.6.5 Use of Headings
17.6.6 Contra Proferentem – Construing against the Proposer
CHAPTER 18: ASSIGNMENT OF BARGAINING UNIT WORK
18.1 Assignment to Non-Bargaining Unit Employees
18.1.1 Implied Restrictions
18.1.2 Express Restrictions: “Work Normally Performed”
18.2 Contracting Out
18.2.1 Necessity for Express Provision
18.2.2 Express Limitations on the Right to Contract Out
18.2.3 Validity of the Contracting Out: Who Is the “True” Employer?
18.3 Job Classifications and the Organization of Work
CHAPTER 19: SENIORITY RIGHTS DEFINED
19.1 The Meaning and Importance of Seniority
19.2 The Measurement and Duration of Seniority
19.3 Statutory Rights to Maintain Seniority
19.3.1 Employment Standards Legislation – Pregnancy and Parental Leave
19.3.2 Human Rights Legislation – Disability, Workers’ Compensation and Other Leaves
19.4 The Contest between Seniority and Human Rights
19.5 Time Spent outside the Bargaining Unit
19.6 Super-Seniority
CHAPTER 20: PROMOTION
20.1 Vacancies and Job Posting
20.1.1 Requirement to Post
20.1.2 Requirement for Fair Administration of Posting Procedure
20.1.3 Cancellation of Posting
20.1.4 Reliance on Criteria Not Included in Posting
20.2 Promotion Clauses
20.2.1 Sufficient Ability and Relative Ability Distinguished
20.2.2 Hybrid Clauses
20.3 Scope of Arbitral Review
20.3.1 Employer’s Determination of the Necessary Qualifications
20.3.2 Employer’s Assessment of Employee Skill and Ability
20.4 Validity of Test or Interview
20.4.1 Denial of Interview
20.4.2 Undue Weight Assigned to Interview
20.4.3 Characteristics of a Valid Test Procedure
20.4.4 Undue Weight Assigned to Test Results
20.5 Trial, Training and Familiarization Periods
20.6 Remedies
CHAPTER 21: LAYOFF AND RECALL
21.1 General Considerations
21.2 Compliance with Layoff Procedure
21.2.1 Definition of Layoff
21.2.2 Vacation Scheduled During Shut-Down
21.2.3 Layoff Distinguished from Discharge, Termination or Severance
21.2.4 Reduction of Hours Constituting Layoff
21.2.5 Layoff Distinguished from Transfer
21.2.6 Layoff Lasting Less than One Shift
21.2.7 Requirement for Notice of Layoff
21.3 Bumping Rights
21.3.1 Is Chain Bumping Allowed?
21.3.2 Scope of Bumping Rights
21.3.3 Bumping Up
21.4 Recall Rights
21.4.1 Status of Employees on Layoff
21.4.2 Requirement for Notice of Recall
21.4.3 Triggering of Recall Rights
21.4.4 Recall Rights and Job Posting Provisions
21.4.5 Bumping and the Retention of Recall Rights
21.4.6 Remedy for Breach of Recall Rights
CHAPTER 22: HOURS OF WORK
22.1 Scheduling of Work Week
22.2 Reduction of Work Week
22.3 Voluntary and Compulsory Overtime
22.4 Statutory Limitations
22.4.1 Employment Standards Legislation
22.4.2 Human Rights Legislation
22.5 Allocation of Overtime
22.6 Remedy for Improper Overtime Assignment
CHAPTER 23: WAGES AND BENEFITS
23.1 Wage Rates
23.1.1 The Job Classification System
23.1.2 Work Performed in a Different Classification
23.1.3 What Constitutes Compensable “Work”?
23.1.4 Private Arrangements Prohibited
23.1.5 Estoppel and the Right to Continuation of a Benefit
23.2 Premium and Overtime Rates
23.2.1 Statutory Requirements
23.2.2 Two Types of Overtime Entitlement
23.2.3 What Constitutes Compensable “Work”?
23.2.4 Requirement for Authorization
23.2.5 Only Part of Shift Worked on Premium Rate Day
23.3 Call-In Pay
23.4 Stand-By Pay
23.5 Holiday Pay
23.5.1 Statutory Requirements
23.5.2 Holiday Falling on Non-Working Day
23.5.3 Effect of Extended Absence on Entitlement
23.5.4 “Qualifying Day” Requirements
23.5.5 Holiday Pay and the Rule against Pyramiding
23.6 Vacation with Pay
23.6.1 Statutory Requirements
23.6.2 Effect of Extended Absence on Entitlement
23.6.3 Vacation Scheduling
23.6.4 Calculation of Vacation Pay
23.7 The Rule against Pyramiding
23.7.1 Calculation of Overtime where Multiple Premiums Owing
23.8 Retroactivity
CHAPTER 24: LEAVES OF ABSENCE
24.1 Discretionary Leaves of Absence
24.1.1 General – Personal or Special Leave
24.1.2 Religious Observances
24.1.3 Absence Due to Jail Term
24.2 Sick Leave Benefits
24.2.1 General
24.2.2 What Constitutes Illness?
24.2.3 Employer’s Entitlement to Proof of Illness
24.2.4 Overlap between Sick Leave and Other Forms of Leave
24.2.5 Sick Leave and Layoff
24.3 Compliance with Employment Standards and Human Rights Legislation
24.3.1 Illness, Emergency and Disability Leave
24.3.2 Pregnancy and Parental Leave
24.4 Bereavement Leave
CHAPTER 25: RIGHTS OF TRADE UNIONS
25.1 Union Security Clauses
25.1.1 Enforcement at Arbitration
25.1.2 Requirements for Compliance with Union Constitution and Notice to Employer
25.1.3 Constitutionality of Union Security Clauses
25.2 Union Activity in the Workplace
25.2.1 Sources of Protection – Contract, Statute, Charter
25.2.2 What Is Union Activity?
25.2.3 Distinguishing between Protected and Unprotected Union Activity
25.2.4 Union Activity during Working Hours
25.3 Discrimination on the Basis of Union Activity
CHAPTER 26: RESPONSIBILITIES OF TRADE UNIONS
26.1 General
26.2 What Constitutes an Illegal Strike?
26.3 Union Liability for Illegal Strikes
26.4 Measurement of Damages
INDEX
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