CIRB Rules Employer Required to Provide Union with Employee Contact Information

In the recent decision of Telecommunications Workers Union v. Telus Advanced Communications, (July 17, 2008) the Canada Industrial Relations Board ruled that, if an employer has employees’ basic personal contact information in its possession, it is statutorily obligated to provide that information to the union.

The collective agreement required Telus to provide TWU with a monthly list of bargaining unit employees and specified information, which did not include the employees’ home telephone numbers and e-mail addresses. The parties jointly applied to the Board for a declaratory opinion on the issue of whether the Canada Labour Code required the employer to provide the union with the home telephone numbers and e-mail addresses of bargaining unit members who were not union members.

TWU argued that, in order to fulfill its duties under the Code to bargain in good faith and fairly represent the employees in the bargaining unit, it must be able to communicate effortlessly will all employees. The union further argued that Telus had a concomitant duty to facilitate the union’s fulfillment of its duties by providing the union with the employees’ personal contact information.

Telus argued that:

1. it had no legal duty to provide TWU with the information sought;

2. providing more information than was agreed to in the collective agreement would undermine the integrity of the agreement; and

3. the employer had no obligation to disclose information that was not in its possession.

In response to Telus’ first argument, the Board stated that, while there is no explicit provision in the Code that obliges an employer to provide the union with employees’ personal contact information, many previous Board decisions have found that the union’s statutory obligations imposed a corresponding obligation on the employer to provide certain information to the union. The union does not need to provide the employer with a reason for its request; rather, the union is entitled to employees’ contact information by virtue of its position as bargaining agent. However, the Board cited two limits on the union’s entitlement:

1. the union may only use contact information for matters related to the individual’s employment, and;

2. the information may be withheld from the union when it was provided to the employer on the basis of an express guarantee of confidentiality.

In response to Telus’ argument that it need only provide the union with the information specified in the collective agreement, the Board stated that the employer has a duty to provide the union with the personal contact information it has collected, and any provision that seeks to limit the employer’s obligation is unenforceable.

The Board was persuaded by Telus’ third argument, however, and held that the employer is not obliged to collect personal contact information that it would not otherwise gather “solely for the purpose of providing it to the union.”

In this case, Telus was required to provide the union with the home telephone numbers of the employees. Telus was not required to pass along employees’ home e-mail addresses, however, since it did not collect that information for its own purposes.

This case confirms for employers the importance of providing the union with personal contact information for all employees who are represented by the union, including both union members and non-members. The provision of personal contact information is a statutory duty for employers, and cannot be limited by collective agreement language. Thus, an employer can avoid the potential hassle and cost of defending an unfair labour practice complaint by responding to a union’s request for the personal information of the employees in the bargaining unit if it has the requested information in its possession.

Employees’ “Right to Silence” is Not Absolute

In British Columbia Ferry and Marine Workers’ Union v. British Columbia Ferry Services Inc. (November 3, 2008), the B.C. Supreme Court upheld an arbitrator’s finding that, in exceptional circumstances, an employer’s interest in ascertaining and disclosing the cause of an incident can outweigh an employee’s interest in remaining silent.

On March 21, 2006, a ferry traveling from Prince Rupert to Port Hardy, B.C sank. While 50 passengers and 49 crew members were evacuated, two passengers were never found and are presumed dead.

B.C. Ferry Services launched an internal investigation of the incident. However, on their lawyers’ advice, the two employees in charge of navigation on the ferry refused to answer the employer’s questions. The employees cited their right to remain silent in the face of potential criminal charges arising from the RCMP’s ongoing criminal investigation. The employer suspended them without pay until they answered the employer’s questions, claiming that their insistence on remaining silent amounted to insubordination. The union grieved the suspensions.

The arbitrator dismissed the grievance and upheld the suspensions. In so finding, he relied on the decision of the British Columbia Industrial Relations Council in UFCW, Local 1518 v. Tober Enterprises. In Tober, the IRC found that the right to silence is not an absolute right. While refusing to explain misconduct generally will not constitute just cause for discipline, there are two exceptions to this rule:

1. if an employee either deliberately attempts to deceive the employer with a false or misleading explanation, or

2. knowingly allows his or her silence to damage the legitimate business interests of the employer.

Such conduct may form the basis for the imposition of discipline.

In this case, the grievors’ refusal to answer questions impaired the employer’s interest in completing its investigation of the accident and issuing a report to the public. The arbitrator therefore found that the employer had just cause to impose the suspensions.

The union applied to the Labour Board for a review of the arbitrator’s decision. The Board upheld the arbitrator’s award, stating that it was reasonable for him to have concluded that knowingly allowing one’s silence to damage the employer’s business interests constitutes an exception to the general rule in Tober. The Board then summarily dismissed the union’s application for reconsideration of its decision.

The union sought judicial review of the original Board decision at the British Columbia Supreme Court. The union claimed that the Board had erred in applying the law, as set out in Tober, regarding exceptions to an employee’s right to remain silent.

The Court dismissed the union’s application. The Court stated that the union’s arguments were actually a challenge to the reasoning in Tober, and not to the arbitrator’s reasoning. Since the union had not argued that Tober should be modified before the Board, the Court refused to fault the Board for failing to address an argument that had not been made before it.

In upholding the Board’s decision and the arbitrator’s award, the B.C. Supreme Court confirmed that there are exceptions to an employee’s general right to silence. An employee’s refusal to answer questions may form grounds for discipline, as long as the employer can demonstrate that the employee knowingly allowed his or her refusal to speak to damage a legitimate interest of the employer.

Arbitrator Clarifies Meaning of Undue Hardship

In Stelco Inc. v. United Steelworkers, Local 1005 (Mansfield Grievance) (July 2, 2008), the arbitrator clarified the limits on an employer’s duty to accommodate, as well as the role that the costs of accommodation play in determining when the undue hardship threshold has been met.

Pursuant to an agreement with the union, the employer created special positions to accommodate disabled employees, rather than modifying existing jobs. The grievor was employed in one of these positions. When business declined, many employees, including the grievor, were laid off. While the grievor was recalled to a different position, economic conditions continued to worsen. The employer told the union that it was planning to eliminate the special positions and would instead accommodate disabled employees in regular jobs. This decision was based in part on the fact that many of the special positions were non-essential, and “make work” positions.

The grievor and other disabled employees were assessed individually by the employer to determine whether they could perform regular work, with or without accommodation. The company concluded that the grievor was medically unable to perform a regular job and he was laid off. However, when the company’s financial position eventually improved, the grievor was recalled to a new position.

The union grieved the lay-offs of the disabled employees, claiming that, because the eliminated positions were created specifically for disabled employees, their elimination constituted a prima facie case of discrimination. The union further submitted that the employer could only eliminate the jobs if it could demonstrate that keeping the positions would amount to undue hardship, and that the employer had failed to demonstrate that it would experience undue hardship in this case. The union asserted that the applicable standard for determining undue hardship was contained in the Ontario Human Rights Commissions’ Policy and Guidelines on Disability and the Duty to Accommodate. The Commission Policy states that the costs of accommodation will amount to undue hardship only if they are so substantial that they alter the essential nature of the employer’s enterprise or substantially affect the company’s viability.

The arbitrator concluded that the Commission Policy was not law and, since it was at variance with established jurisprudence, refused to apply it. According to the arbitrator, the threshold for undue hardship set out by the Commission and relied upon by the union is too stringent, and would render the concept of undue hardship meaningless. The arbitrator concluded that costs, even where they are not a threat to the very existence of the company, are critical to an assessment of whether an employer will suffer undue hardship as a result of accommodating a disabled employee.

The arbitrator went on to clarify that the duty to accommodate does not require employers to continue to have work performed that is not required, even when a disabled employee has been performing that work. However, eliminating a non-essential position must always be a “bona fide decision made for permissible reasons.” As the arbitrator stated, financial losses and even insolvency do not entitle an employer to ignore the Human Rights Code requirement to accommodate disabled employees to the point of undue hardship.

In this case, the arbitrator found that the employer had met its duty to accommodate. Given that the company was on the verge of bankruptcy, to have maintained the special positions when they were not required would have constituted undue hardship. Accordingly, the grievance was dismissed.

This case demonstrates that employers need not continue to staff positions that they no longer require, nor must they wait until the costs of accommodation threaten the very viability of their businesses before eliminating non-essential positions which are staffed with disabled employees. However, this case also shows that, in order to avoid running afoul of the Human Rights Code, the decision to eliminate jobs currently filled by disabled employees must be made on an individual basis. A blanket decision to eliminate all positions belonging to disabled employees would likely not have been upheld in this case, despite the employer’s near-insolvency.

Supreme Court: Civil Standard of Proof Does Not Vary with Seriousness of Allegations

In the recent decision of F.H. v. McDougall (October 2, 2008), the Supreme Court of Canada declared “once and for all” that there is only one standard of proof in civil cases: proof on a balance of probabilities.

F.H. claimed that he had been sexually assaulted by Ian McDougall, who supervised F.H. while he was attending a residential school in the 1960s. Despite the fact that F.H.’s testimony was inconsistent and conflicted with the testimony of other witnesses, the British Columbia Supreme Court found for F.H.

McDougall appealed the trial judge’s findings that he had sexually and physically assaulted F.H. The Court of Appeal dismissed his appeal on the finding that he had physically assaulted F.H., but allowed his appeal on the finding that he had sexually assaulted F.H. The Court of Appeal concluded that the trial judge had failed to scrutinize the evidence, including the serious inconsistencies in F.H.’s evidence, in a manner that was commensurate with the gravity of a sexual assault allegation, and had thereby erred in law. F.H. appealed to the Supreme Court, which allowed his appeal.

The Supreme Court of Canada ruled for the majority that there is only one civil standard of proof. While judges may, where appropriate, be mindful of the gravity of the allegations at issue, such considerations do not alter the applicable standard of proof. The Supreme Court further concluded that, in all cases, the evidence must be scrutinized with care by the trial judge, and must be sufficiently clear, cogent and convincing to satisfy the balance of probabilities test. In so finding, the Court overruled precedents that required a standard of proof commensurate with the seriousness of the allegations or stricter scrutiny of the evidence when criminal or morally blameworthy conduct was alleged.

In this case, the Supreme Court concluded that the Court of Appeal had erred in holding the trial judge to a standard of proof higher than the regular civil standard, and restored the trial judge’s decision.

This decision will have a significant impact on the way arbitrators and judges approach wrongful dismissal actions and grievance arbitrations that involve allegations of criminal or morally blameworthy conduct. Prior to the Supreme Court’s ruling, adjudicators would hold an employer to a stricter standard of proof when certain types of conduct, such as fraud, were alleged, and when the allegations would seriously harm the employee’s reputation. The Supreme Court’s decision puts an end to this practice. Now, in all civil proceedings, including arbitrations, the standard of proof to be applied is the balance of probabilities test, regardless of the seriousness of the allegations.