New Bill to Require Representation Vote Prior to Certification in All Cases

On May 1st, 2013, Bill 62, the Defending Employees’ Rights Act (Certification of Trade Unions), 2013 passed its first reading. The Bill would amend Ontario’s Labour Relations Act, 1995 to prohibit the Ontario Labour Relations Board from certifying a union as a bargaining agent for employees unless a representation vote has been held among the participating employees. Currently, the Board may certify a union without a vote if:

  • it finds that the employer contravened the Act during the certification process and no other remedy would be sufficient; and
  • in the construction industry, if more than 55 percent of employees are union members.

We will keep readers apprised of the progress of this proposed legislation.

Firm Announcement

The Firm welcomes our new Associate, Sheri Enikanolaiye. Sheri has completed her articles with the Firm and has recently been called to the Bar.

Employer Can Waive Notice of Resignation Without Pay in Quebec

Can an employer waive notice of resignation without pay? In Quebec, the answer is yes, at least for now.

Daniel Guay worked for Asphalte Desjardins Inc., but then secured preferable employment with a competitor. He provided his employer with three weeks’ written notice of resignation, but the employer decided to immediately terminate his employment.

The Quebec Labour Standards Commission sought three weeks’ pay for Mr. Guay pursuant to An Act Respecting Labour Standards (the “Act”). While the Court initially found in favour of Mr. Guay, on appeal, the Quebec Court of Appeal overturned the decision.

Prior to this decision, the case law in Quebec generally held that an employer had to provide pay during a notice period if it waived an employee’s notice of resignation, pursuant to section 82 of the Act.

The Court of Appeal’s decision is founded on provisions of the Civil Code of Québec (the “Code”), which provides that an employee may not renounce his right to compensation where insufficient notice of termination is given. The Court stated that it therefore flows from the Code that, if the obligation to give notice has been placed on the employee, not the employer, then the employer may choose to renounce its right to notice of resignation.

The Court also considered another section of the Code, which states that a party for whose exclusive benefit a term has been provided may renounce it without consent of the other party. In this case, the Court noted, Mr. Guay had not provided notice of resignation in order to assist him in a transition from one employer to another. Rather, he provided notice of resignation because he was required to do so and, when his current employer waived the notice period, he started his new position without delay.

The Court further explained that the end of the contract of employment is fixed from the moment the employee announces his resignation. The contract ends on the last day of the notice period because of the unilateral decision made by the employee. Waiver by the employer of the notice period does not change the legal consequences of the notice. The Court thus confirmed that a resignation does not become a termination of employment by virtue of the fact that the employer chooses to waive the notice period that the employee is required to provide. As stated in the previous case law, where an employer discharges an employee and the employee waives the reasonable notice which the employer must provide to him, the Court would not find that the discharge has transformed into a resignation. Therefore, where the employer waives the notice period, this similarly does not trigger the application of section 82 of the Act.

The Court acknowledged that the legislature may need to address the issue because providing adequate notice to an employer thus presents a risk to the employee (i.e., that the employer could waive the notice period and leave the employee without employment or compensation for the remainder of the notice period). However, the Court noted that an employer would be putting itself at risk if it conducted itself in such a manner, and would be abusing its rights, an act for which it could be held accountable.

From an employer’s perspective, this decision is a welcome one. Employers in Quebec may validly waive an employee’s notice of resignation when, for example, an employee is no longer dedicated to her work prior to her resignation, or where an employee is leaving to

work for a competitor and his work during the notice period could constitute a conflict of interest.

However, employers should be aware that, while similar reasoning could eventually be applied by Ontario courts, this decision does not reflect the current state of the law in Ontario, where different legislation applies, and which requires employers to pay out the greater of either the statutory minimum for termination of employment or the notice period, should the employer waive notice of resignation.

Employers with employees working in Ontario and Quebec should be informed of the Quebec Court of Appeal’s decision and this recent change in Quebec employment law. At this point in time, however, it is unclear whether this change in Quebec’s law will be a lasting one. An application for leave to appeal to the Supreme Court of Canada has been made with respect to this decision and, should the Supreme Court decide to hear the appeal, a decision by Canada’s highest court will offer employers, both in Quebec and Ontario, more certainty on this change to the law in Quebec, and what implications this might have in other provinces.

We will keep readers apprised of developments in this case.

Post-Discharge Termination Upheld on Judicial Review

In a recent decision, successfully argued by Bird Richard, the New Brunswick Court of Queen’s Bench upheld a decision by Arbitrator Frumkin, in which he held that Canada Post could terminate an employee who had already been discharged.

Ronald LeBlanc, a letter carrier, was terminated for abusive conduct to a customer. At the disciplinary meeting, after being told that he was discharged and handed the discharge letter, the grievor assaulted his supervisor. In a subsequent letter, the employer advised the grievor that, in essence, in the event he were to be reinstated as a result of the arbitration of the first discharge, he was fired for a second time. He later pled guilty to a criminal assault charge.

In December 2011, the initial discharge was successfully grieved. The arbitrator substituted a three-month suspension and an order for reinstatement. In response to the award ordering reinstatement, the employer confirmed by letter that the grievor would not be reinstated, given that he had been again terminated eighteen months earlier.

At the hearing before the arbitrator, counsel for the Union argued that it was not open to the employer to discharge the grievor a second time, as he had already been discharged and was therefore no longer employed by the employer at the time of the second discharge. The Union relied on decisions where arbitrators had held that a union official could not be discharged after their employer had terminated them. The Union also argued that the employer could only rely on post-discharge conduct in the context of the initial discharge to request that the arbitrator not reinstate the grievor.

As we have reported in a previous issue of EMPlawyer’s Update, the arbitrator rejected the Union’s analogy, concluding that, “where there is no union dimension attaching to the misconduct, the employee, or discharged employee, may be subject to discharge for post-discharge misconduct, where circumstances warrant.” The arbitrator stated that the grievor was a de facto employee at the time of the second discharge, given that the first award had retroactively reinstated him.

The arbitrator stated that there were two ways in which an employer could have relied upon the assault. While it could not have relied on the conduct to support the first discharge per se, it was open to the employer to:

1. rely upon it with respect to whether or not the arbitrator should exercise his discretion to reduce the penalty on the first matter; or

2. treat the grievor’s post-discharge misconduct separately from the misconduct it had relied upon for the purposes of the initial discharge.

All that was required to exercise the second option was to advise the employee, in accordance with the collective agreement, of the employer’s intention to discharge him in the event that the grievance against the initial discharge decision succeeded.

The Union sought judicial review of the arbitrator’s decision before the New Brunswick Court of Queen’s Bench, arguing that the arbitrator’s decision was unreasonable because he had failed to follow the previous decisions of other arbitrators on which the Union had relied, and because the arbitrator had relied on a decision with very specific facts that were different than those in the grievor’s case.

The Court concluded that the arbitrator’s decision was reasonable. The case law raised by the Union did not have a sufficient correlation to the circumstances in the grievor’s case and thus was not binding. In addition, despite the fact that the arbitrator had mistaken the facts of one of the cases on which he did rely, the totality of his decision met the standard of reasonableness despite this error.

Ultimately, the Court upheld the arbitrator’s decision, finding that he was correct in concluding that, given the seriousness of the grievor’s misconduct, the employer had no choice but to advise the grievor that his actions were intolerable and that it intended to terminate him for a second time for this post-discharge misconduct.

This is an important decision for employers in cases where a post-termination event occurs, or where evidence of misconduct only comes to the attention of the employer post-termination. This decision of the Court confirms that an employer may rely on post-discharge misconduct as an independent ground warranting discipline for the misconduct, including termination, should the initial termination be rescinded at arbitration.

Employee Dismissed for Cause after Breach of Privacy Policy

In Steel v. Coast Capital Savings Credit Union, the Supreme Court of British Columbia upheld the termination of an employee on a with cause basis after the employee breached the bank’s confidentiality policy.

Susan Steel had worked for Coast Capital Savings Credit Union for over 20 years. At the time of her dismissal, she was a Helpdesk analyst in the IT Department. In this role, she provided internal technical support to other employees of the credit union. In order to complete her job duties, Ms. Steel was able to access all documents and files within the organization, including employees’ personal folders. Access to documents and files was not monitored by the credit union, and Ms. Steel was largely unsupervised.

The employer had established several clear policies and protocols relating to accessing documents and confidentiality, which required permission of the owner of the file or permission from the Vice President of Corporate Security before another employee’s file could be accessed and read. As part of the annual performance review process, Ms. Steel had acknowledged that she had read and understood these policies.

Despite this, in July 2008, Ms. Steel accessed another employee’s confidential folder and viewed a document – a waiting list for parking spaces, on which she was listed – for her own purposes. She had not been asked by her employer to procure this document, and she did not have the permission of the owner. Ms. Steel was dismissed immediately for cause.

The employee sought summary judgment in her action for damages for wrongful dismissal.

In order to terminate an employee without notice or pay in lieu thereof, it is well established that an employer must have just cause, and that the onus of proving just cause rests with the employer. Just cause may exist where the employee’s conduct reveals a character that is dishonest or untrustworthy. In such a case, just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract or breaches the faith in a work relationship, or where the behavior is inconsistent with the employee’s obligations to their employer. In this case, the Court noted specifically that the relationship of trust between employer and employee is crucial in the banking industry, and that employees who work with greater autonomy must be held to a higher standard of trust.

Applying these principles to the facts in this case, the Court found that, while Ms. Steel was not a managerial employee, she did occupy a position of significant trust within the credit union. As it was not practical for Ms. Steel to be monitored all the time, trust was an especially important aspect of her unsupervised position. It was concluded that Ms. Steel violated this trust in two ways. First, she opened another employee’s personal files for her own benefit, and not at anyone’s request or as part of her duties. Second, Ms. Steel failed to follow the procedures put in place by her employer to govern access to other employee’s personal files. The court concluded that these reasons satisfied the just cause requirement, and dismissed Ms. Steel’s action.

This case reiterates that breaching the employer’s trust by failing to follow a workplace confidentiality policy may constitute grounds for termination for cause, notwithstanding the duration of an employee’s employment. However, as in this case, in order to support a termination for cause, employers will need evidence to establish that the employee worked in a position of trust and autonomy within the organization, and that the employee was aware of the relevant policies and protocols.

2013 California HR Conference

The Professionals in Human Resources Association is hosting the annual California HR Conference from August 26 to 28, 2013 at the Anaheim Convention Centre in Anaheim, California.

Stephen Bird has been invited to be a presenter at the Conference and will be a member of the Global Employment Strategy discussion panel.

Stephen’s program will focus on the following unique aspects of Canadian employment law:

  • Jurisdiction over labour and employment law matters: Which laws apply – federal or provincial? What are the differences between the various Canadian jurisdictions?
  • Obligations when terminating employment: The different considerations applicable to unionized and non-unionized staff, and the common law concept of “reasonable notice”.
  • Drug testing and privacy issues: The Canadian approach – what constitutes a reasonable intrusion into an employee’s private life? Can an employer conduct covert surveillance or monitor Internet use?
  • Employee benefits and insurance: What is provided publicly, and what must an employer cover?

Bird Richard has a limited number of complimentary one-day passes (valuing $5,994) to be conferred to clients of the Firm. One day pass attendees can upgrade their registrations to 2 days for $150 or 3 days for $300. Please be advised that the registration for the Conference closes on August 16, 2013.

Should you require additional information, or are interested in registering for this Conference, please contact our Office Manager, Reyna Goudreau, at rgoudreau@birdrichard.com.