A Year in Review – Highlights and Lowlights

of Labour and Employment Law

May 25, 2015

Presented by: J. Najeeb Hassan

BC Care Providers Annual Conference, Whistler B.C.

nhassan@ropergreyell.com

@jnajeebhassan

The purpose of this presentation is to provide an overview of recent developments in the law. This does not by any means constitute a full analysis of the law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed.

© Roper Greyell LLP 2015

1

Agenda – The Good, the Bad and the Ugly

Supreme Court DecisionsPrivacyHuman RightsLabour Relations Board DecisionsDiscipline

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The Supremes

Three Important Cases

Right to Strike and Essential Services

Right to Collective Bargaining

Good Faith Performance of Contracts

Right to Strike and Essential Services

Saskatchewan Fed of Labour v. Saskatchewan 2015 SCC 4▪ SCC constitutionalized the right to strike▪ Legislation allowing employers to

unilaterally set essential services level substantially interfered with free association in the form of meaningful process of collective bargaining

Right to Strike and Essential Services

▪ Different than in British Columbia.

▪ Legislation not “minimally impairing” rights▪ Essential services broadly construed▪ No alternative dispute resolution

▪ Decision essentially a validation of B.C.’s essential services model

Right to Collective Bargaining

Mounted Police Association of Ontario v. Canada (Attorney General) 2015 SCC 1▪ Exclusion of RCMP from Federal Collective

Bargaining regime and imposition of non-union labour relations regime.

▪ RCMP members did not have the freedom to choose a representative independent of the employer.

▪ A violation of freedom of association.

Good Faith in Performance of Contracts

Bhasin v. Hrnew 2014 SCC 71

▪ New duty of honest performance among parties to contracts

▪ Parties be honest with each other in relation to the performance of

contractual obligations and not lie or mislead the other party about contractual performance

Good Faith in Performance of Contracts

▪ Duty founded on principle of good faith requiring parties to perform their contractual duties honestly and reasonably, and not capriciously or arbitrarily.

▪ Distinguished from fiduciary duty, which requires loyalty or obligation to put the other persons interests first.

Disclosure of Bullying and Harassment Incident

Surreptitious Surveillance

Disclosure of Contracts by Health Authorities

Privacy

Disclosure of Bullying and Harassment Incident

Order F14-48; South Coast British Columbia Transportation Authority, 2014 BCIPC 52

• Access request for the cost of addressing harassment complaint.

• Public body permitted to refuse to confirm or deny the existence of records where

would unreasonably invade alleged complainant’s personal privacy.

• No overriding public interest requiring production.

Surreptitious Surveillance

Unifor, Local 433 v Crown Packaging Ltd (Giesbrecht Grievance), [2014] BCCAAA No.43 (Dorsey)▪ The grievor requested vacation leave for the

week before the Thanksgiving long weekend. Only part of the request was allowed due to scheduling issues.

▪ The grievor called on October 9th would not be at work due to a back problem.

Surreptitious Surveillance

▪ The employer hired a private investigator to conduct video surveillance of the Grievor for the next three days.

▪ The Grievor provided doctor’s note.▪ Terminated for fraudulently claiming sick

leave and benefits for three days and lying about the reasons for his absence during the employer’s investigation.

Surreptitious Surveillance

▪ The union grieved, objecting to the introduction of the video surveillance evidence at the arbitration.

▪ Considered PIPA and whether the employer was entitled to collect the grievor’s personal information without consent as reasonable for the purposes of establishing, managing, or terminating an employment relationship

Surreptitious Surveillance

▪ Videotaping Grievor not reasonable. Grievor had 34.5 years of service with no history of dishonesty or uncooperativeness.

▪ Alternative, less intrusive means available to obtain information about the grievor’s medical condition.

▪ Evidence not admitted.

Disclosure of Contracts by Health Authorities

Order F14-28; Re Vancouver Island Health Authority, 2014 BCIPC 31

▪Compass Group requested a review of Vancouver Island Health Authority's decision to disclose its contracts with VIHA to HEU.

▪Compass argued disclosure reasonably expected to harm its business interests.

Disclosure of Contracts by Health Authorities

▪ Privacy Commissioner determined that the information in the contract was not supplied in confidence under FIPPA and VIHA was ordered to disclose the contracts.

▪ Care providers can expect similar treatment regarding their contracts and regarding contracts of their suppliers in the possession of a public body.

Human Rights

Termination of Employees on LTDDuty to Accommodate – Requesting

Medical InformationDuty to Accommodate –When is

Enough, EnoughDisciplining Disabled Employees

Termination of Employees on LTD

Township of Langley and CUPE Local 403 (unreported) February 4, 2015 (McPhillips)▪ Employees incapable of attending work

regularly. By terminating employment Employer was saving money on benefit premiums.

▪ Decision to terminate 3 employees on LTD was held to be arbitrary and random.

Termination of Employees on LTD

▪ Employer ordered to reinstate the employees. ▪ A very bad decision which is contrary to well

established doctrine of non-culpable absenteeism.

▪ Though an exception to the doctrine of non-culpable absenteeism exists (which prevents dismissal if it will deprive employee of benefits directly related to disability, e.g. LTD benefits), that was not the case here.

▪ Decision on appeal to LRB.

Duty to AccommodateRequesting Medical Information

Petrar v. Thompson Rivers University, 2014 BCHRT 193

▪ Employer sought to obtain medical information about an employee’s ability to come to work.

▪ Employee complained that the Employer’s request for medical certification of fitness amounted to discrimination.

Duty to AccommodateRequesting Medical Information

▪ Complaint dismissed – Employer complying with duty to inquire - employee with known medical condition that she alleged affected performance.

▪ Employer’s management of performance despite disability not discriminatory and not improper retaliation, as it addressed conduct that predated complaint.

Duty to AccommodateWhen is Enough, Enough

Wilcox v. UBC, 2014 BCHRT 228▪ Lab employee developed allergy to mice.

She worked in a lab that conducted research on mice and this led to a medical leave.

▪ Employee took no steps to apply for alternate positions and declined those offered as not qualified.

Duty to AccommodateWhen is Enough, Enough

▪ When Wilcox was later laid off due to lab closure alleged failure to accommodate to point of undue hardship.

▪ Complaint was dismissed as no likelihood of successfully proving a failure to accommodate given the absence of positions for which the employee was qualified.

Disciplining Disabled Employees

Bartuk v Vancouver Coastal Health Authority, 2014 BCHRT 188▪ The Complainant said she was diagnosed

with sleep apnea and also suffered from "stress, anxiety and depression".

▪ She commenced a medical leave on June 15, 2012.

Disciplining Disabled Employees

▪ Complainant claimed she was discriminated against because VCHA did not reasonably accommodate her.

▪ Claimed VCHA did not apply an Accommodation Agreement it made.

▪ Claimed she was subjected to particular scrutiny and was treated differentially from other employees.

Disciplining Disabled Employees

▪ She received letters of warning and displacement notice which were held to be unrelated to the disability and there was no retaliation.

▪ Her complaints alleging a failure to accommodate and delay in accommodation were also dismissed. The complainant had been accommodated.

Labour Relations Board Decisions

Common Employers

Bad Faith Bargaining

Rationalization of Bargaining Units

Common Employers

Park Place Seniors Living Inc., BCLRB No. B215▪ Union attack on corporate structure -

separate companies operate various facilities with certain corporate services provided by a related company.

▪ A very common arrangement in care sector.

Common Employers

▪ LRB concluded that there were two or more entities under common control and direction.

▪ But no labour relations purpose for finding that they were common employers.

▪ Potential erosion of bargaining rights through potential contracting out not enough – application dismissed.

Bad Faith Bargaining

Carecorp Holdings Inc., BCLRB No. B7/2015▪ HEU argued employer breached duty to

bargain in good faith by tabling proposal for lower wages than paid at other related sites.

▪ Claimed discrimination because a higher percentage of “persons of colour” at the location in question than other sites.

Bad Faith Bargaining

▪ The LRB concluded that the union failed to make out a prima facie case of discrimination.

▪ Many differences based on location consistent with economic factors – different contracts between Employer and customer at the various sites.

▪ HEU’s application held to be without merit.

Rationalization of Bargaining Units

HEABC (Baptist Housing Care Homes Society), BCLRB No. B194/2014▪ The Employer owned two facilities with 2

different bargaining units and 2 unions.▪ It decided to lose Central Care Home and

Mount Edwards Court Care Home (MEC) and open a new facility - The Heights.

Rationalization of Bargaining Units

▪ Employer applied to delete the HEU certification at CCH and the IUOE certification at MEC and to replace these with a single certification at The Heights.

▪ The LRB concluded a rational line could no longer be drawn around the two existing bargaining units when they moved to The Heights.

Rationalization of Bargaining Units

▪ The existing HEU and IUOE certifications were deleted from the facilities subsector consolidated certification.

▪ The Heights was added to the facilities subsector consolidated certification.

▪ Representation vote held to decide which union would represent the employees at the Heights.

Discipline and Discharge

Breach of Patient PrivacyInsubordinationDishonestyResident AbuseSocial Media Transgressions

Breach of Patient Privacy

Vancouver Coastal Health Authority and HSA, [2014] BCCAAA 36 (McEwen)▪ 24 years Employee. For the last 10 years

a Clinical Support Coordinator for Cardiac Systems with VCHA.

▪ Accessing a patient’s medical records, communicating about them and forwarding them via email to a third party.

Breach of Patient Privacy

▪ The Employee had signed employer’s Information Privacy and Confidentiality Policy recently.

▪ No disciplinary history.▪ Immediately admitted the mistake when

confronted.

Breach of Patient Privacy

▪ Termination was too severe in light of long service with no discipline and the fact she immediately admitted mistake when confronted.

▪ Three month suspension was substituted.

Insubordination

HEABC (Fraser Health Authority Ridge Meadows Hospital) and HSA, [2014] BCCAAA 79, 244 LAC (4th) 180 (Sanderson)▪ Patient Care Coordinator (DC2) insolent,

insubordinate and disrespectful in her email communications with her direct supervisor.

▪ The conduct arose after the supervisor rebuffed a romantic relationship with the Grievor.

Insubordination

▪ No reasonable expectation to think correspondence would be welcomed by her supervisor.

▪ Having delivered an initial letter and heard the reaction, she persisted in actions at work, trying to advance a private obsession.

Insubordination

▪ Behavior escalated to calling supervisor a liar and alleging harassment.

▪ The Employer terminated the employee’s employment.

Insubordination

▪ There was a serious breach of trust towards the employer and the supervisor.

▪ Termination of the Grievor was not an

excessive response.

Insubordination

HEABC (Vancouver Coastal Health Authority) and BCGSEU, [2014] BCCAAA 83 (Keras)▪ At meetings the Grievor was at times

abusive, disrespectful and on occasion insubordinate.

▪ However, the Grievor also apologized.

Insubordination

▪ Relationship between the parties was not beyond repair but needed some work.

▪ The decision to terminate was excessive. ▪ Reinstated to her position of casual cook,

subject to completing a Respectful Workplace Policy course.

Dishonesty

Roe v BC Ferry Services, 2015 BCCA 1 ▪ Manager terminated for unauthorized

donation of food vouchers to daughter’s sports team – value was less than $200.

▪ Trial judge held that misconduct was “trifling” – no just cause for termination.

Dishonesty

▪ BC Ferries appealed.▪ Court of Appeal ordered new trial –

directed lower court to assess her conduct in the context of a high standard of conduct and honesty and integrity expected of the senior manager, and the Plaintiff’s deliberate concealment of the donations.

Dishonesty

Fraser Health Authority and BCGSEU, [2014] BCCAAA 53 (Brown); appeal denied BCLRB No. B141/2014.▪ Six year LPN employed as Licensing

Officer (LO). One year’s service in her current position and about 6 years’ service at other employer locations.

Dishonesty

▪ Required to work independently in the field and hours of work were flexible.

▪ At times LO’s were given the option to work at home to complete reports. LO’s were required to complete daily time sheets and sign in and out.

▪ Employee leaving work early and there were other timekeeping issues.

Dishonesty

▪ Dishonest at least eight times. Did not start work when said she did and used the early start time and working through breaks and/or banked time to leave early to work at other job.

▪ Not an error. She was calculating time very closely using a flexible system to vary start and finish times, bank hours and use banked hours to manage two jobs.

▪ There was cause for discipline and termination was not excessive.

Resident Abuse

Carecorp Holdings Inc., BCLRB No. B201/2014▪ Union argued termination of LPN was not

for proper cause and said since it happened shortly after certification it was tainted by anti-union animus.

▪ LPN denied she covered resident’s mouth with a wet towel during care.

Resident Abuse

▪ Employee’s story was not believed. LRB found her story compared to another witnesses to be improbable, even though the LPN had a witness too.

▪ Employer had proper cause to terminate. Resident abuse whether emotional or physical abuse was considered serious.

▪ Termination decision was not tainted by anti-union animus – complaint dismissed.

Social Media Transgressions

Kim v. International Triathlon Union, 2014 BCSC 2151▪ Employee made a series of tweets on her

personal Twitter account and wrote a blog post about her manager.

▪ No warnings were given to the employee before termination was imposed.

▪ What was said individually was not serious enough for warrant termination.

Social Media Transgressions

▪ No “cumulative cause” for series of incidents that did not justify termination individually absent evidence of clear of warnings after earlier incidents.

▪ Employer did not establish just cause for termination of manager.

▪ Even professional managers entitled to clear warning that conduct unacceptable and will lead to termination.

NAJEEB HASSAN

Partner

Roper Greyell LLP

Vancouver, BC

(604) 806-3820

nhassan@ropergreyell.com

@jnajeebhassan