SPRING 2015 THE steward NEWS AND INFORMATION FOR BCGEU STEWARDS Letter from the President he Supreme Court of Canada has explicitly recognized the constitutional right of workers, including public sector workers, to go on strike! Striking is a charter right under the freedom of association and it helps to place workers and employers on a Tmore equal footing during bargaining, the Court found in a January 30 decision. The importance of this court pronouncement can t be understated, especially given the challenging political context in which labour unions still find themselves at federal and provincial levels. The Supreme Court decision is the focus of the first article in this issue of The Steward. Another article re-introduces the basic concepts behind progressive discipline in the workplace, which is a useful resource or refresher for all stewards. Yet another article focuses on the risks of doubling up, i.e. when BCGEU members receive compensation twice for the same medical claim. In these situations, members may face an employer-filed grievance that seeks repayment for sometimes large sums of money. Stewards may be asked to help deal with benefit overpayment issues, and the article in this issue provides guidance. I trust that all the articles in this issue will be of use to our union stewards. I received great feedback on the previous issue. Through this publication, we want to provide you with useful resources and advice that you need as you fulfill your role as workplace leaders. If there are topics that you would like addressed or you have other suggestions, don t hesitate to give us a shout at steward@bcgeu.ca Last autumn, I promised that you would receive your dedicated publication twice a year. Welcome to the Spring 2015 issue of The Steward! In solidarity, Stephanie Smith BCGEU President PAGE 1
PAGE 1 Letter from the President Table of Contents PAGE 3 Supreme Court recognizes the constitutional right to strike PAGE 5 Progressive Discipline 101 PAGE 8 Benefit overpayments: Double Recovery of medical leave compensation benefits PAGE 10 Sexual misconduct off-duty can lead to discharge (Ghomeshi case) PAGE 12 Worker rights during probation PAGE 14 Honesty is the best policy during investigatory meetings PAGE 16 Report from the B.C. Human Rights Tribunal The role of a steward in a human rights complaint PAGE 18 Case Summary: Federal government s rollback of scheduled RCMP wage increases did not violate the Charter PAGE 19 Case Summary: The non-unionized association imposed on the RCMP violates the Charter PAGE 20 Case Summary: Worker credibility results in reinstatement order PAGE 21 Case Summary: Recent attendance management health care award confirms the importance of clarifying the mutual intention of the parties at bargaining PAGE 2
By J. Nason Co-op Student steward Supreme Court recognizes the constitutional right to strike n January 30, 2015, the Supreme Court of Canada explicitly recognized the constitutional Oright of workers, including public sector workers, to go on strike. The Court found that the right to strike is an essential part of a meaningful collective bargaining process that is protected by the fundamental right of freedom of association set out in section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter ). This is a very important win for labour unions in Canada. The case, Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, explicitly recognizes the importance of the ability to strike as a bargaining tool that can assist unions to remedy the inequality between workers and employers at the bargaining table. In 2007, the Saskatchewan government introduced legislation that prohibited public sector employees who were unilaterally designated as essential service employees from participating in any strike action against their employer. The legislation, the Public Service Essential Services Act ( PSESA ) and the Trade Union Amendment Act, also provided public employers with significant decisionmaking power in the event of a strike and did not provide for an alternative dispute resolution process to resolve bargaining impasses. Specifically, the PSESA allowed the public employer to unilaterally dictate whether and how essential services would be maintained during a strike, the classifications of workers required to continue working and the number and names of workers within each classification. For public employers other than the government, the PSESA outlined what essential service levels were to be maintained. The employer s decision regarding the number of workers required to continue working during a strike was the only area that could be reviewed by the Labour Relations Board. The Saskatchewan Federation of Labour challenged these two statutes, arguing they violated the freedom of association guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms and were therefore unconstitutional. The Supreme Court of Canada looked to international law and labour history and found that the union right to strike is essential for effective collective bargaining. Where legislation substantially interferes with the right to strike, a meaningful alternative dispute resolution mechanism, such as binding arbitration, must be provided. The PSESA failed to meet this test and was therefore found unconstitutional. The Trade Union Amendment Act, however, was not found to substantially interfere with freedom of association and was therefore constitutional. The Legislature was given one year to make changes to the essential service legislation so that it conforms with the Charter. PAGE 3
In its reasoning, the Court identified work as a core component of a person s identity. The right to strike allows workers to participate in the regulation of their work environment and affirms their dignity and autonomy. The Court recognized the inherent inequality that characterizes the employer-employee relationship. Without the ability to strike, workers have no leverage to negotiate employment terms and the right to collectively bargain is a hollow one. When workers are able to strike, this can be used as a bargaining tool to move negotiations along and force the employer to seriously consider the proposals put forward by workers. The parties will then bargain on a more equal footing and will be more likely to reach a fair agreement. This decision is a very important victory. It says that section 2(d) of the Charter provides constitutional protection for the democratic and independent trade union movement. Labour unions have the constitutional right to engage in meaningful collective bargaining backed up by the right to strike or arbitration for essential service workers on behalf of their members. Strategically, labour unions across the country can use this reasoning at both the essential service designation stage of negotiations and as a pressure tactic at the bargaining table. There are numerous implications stemming from this decision. Looking ahead, labour unions may be able to rely on the reasoning in this case to argue that back-to-work legislation is unconstitutional. The B.C. Teachers Federation will likely use this decision to argue that provincial legislation declaring that education is an essential service is unconstitutional. The Court identified work as a core component of a person s identity. The right to strike allows workers to participate in the regulation of their work environment and affirms their dignity and autonomy. The Court recognized the inherent inequality that characterizes the employer-employee relationship. Without the ability to strike, workers have no leverage to negotiate employment terms and the right to collectively bargain is a hollow one. PAGE 4
By C. Sullivan Coordinator steward Progressive Discipline 101 he term progressive discipline is used in an employment or human resources context where an employer imposes escalating penalties when there are repeated breaches of Tworkplace rules by a worker. In theory, a progressive discipline system ensures that discipline is administered fairly and effectively. Workers should know the consequences of their behaviour in advance, and a fair system means discipline is applied to all workers in an unbiased, objective way. In reality, many employers, especially smaller unsophisticated ones or those with anti-union agendas, do impose penalties without regard to the principles of progressive discipline. The goal of imposing penalties is to correct the negative behaviour rather than to punish the worker and also to ensure the worker remains in the workplace as a respected and productive worker. Lesser penalties are imposed the first time the rules are broken and the penalties increase in severity up to the point of termination for repeat offences. The steps in progressive discipline outlined below are a guide only. There is no requirement and no language in a collective agreement that requires an employer to follow the same series of discipline steps. The disciplinary response in each case will depend on the circumstances. A more serious incident may warrant a more serious response and, in certain limited circumstances, can result in termination. Letter of expectation The first stage of progressive discipline in a workplace is usually a letter of expectation. If a worker is issued a letter of expectation, the content should be reviewed carefully to determine if it is a true letter of expectation. The test is whether the content of the letter could have been sent to any worker at that worksite and it should only reference the general rules and expectations for any worker. Many contracts contain language that specifically reference letters of expectation. For example, the Public Service Agreement specifically excludes letters of expectation as employer actions that can be grieved. They are considered non-disciplinary communication between the employer and workers. Some employers issue them on an annual basis to remind workers about the expectations of their positions. If the letter mentions any personal circumstances or facts specific only to that worker, the so-called letter of expectation may be a letter of discipline and should be grieved. Coaching or counselling Another informal non-disciplinary employer step is called counselling or coaching. Counselling is a term used to describe interactions between the employer and the worker where workplace concerns are identified and the employer offers support and assistance to help the worker meet the expectations of the job. Many employers offer support and assistance but don t formally call these interactions counselling. The employer usually asks the worker if there are any problems or skill deficiencies or may ask if there are any personal issues contributing to PAGE 5
the workplace concerns and may offer a referral to employee assistance services. The offer of assistance may be provided in a context that is non-supportive of the worker. Some employers ask in the middle of a disciplinary investigation if the member has issues or problems, for which they need help. Workers may be reluctant in these heated circumstances to acknowledge any personal problems. Stewards should follow up and encourage members to seek help if it is needed. However, be aware that a failure to acknowledge problems at an earlier opportunity may adversely affect the worker s later claim that they need accommodation for a problem that they did not disclose. Verbal warning Some employers take the first step towards progressive discipline by issuing a verbal warning. The worker is verbally told that they have broken a workplace rule or policy and they are told that a repeat of the same behaviour may result in further escalating discipline. Most collective agreements do not allow members to file grievances in response to a verbal warning. Again, the purpose of the warning it is to put the worker on notice that the employer is not happy with some aspect of their performance or a specific incident and wants to see improved employee performance. Letter of reprimand or letter of warning The first serious step down the path of progressive discipline is usually a letter of reprimand or a letter of warning. The employer sends a formal written notification to the worker that a workplace policy or workplace standard of conduct is not being met and the employer expects improvement. The letter is placed in the worker s personnel file and is considered disciplinary action. Most collective agreements clearly state that letters of reprimand can be the subject of a grievance. At an arbitration hearing, the employer would have to prove the facts to establish that the worker has breached the policy or rules. The union would have the opportunity to challenge the facts and whether the penalty of a written reprimand was the appropriate response. Some collective agreements include a provision that removes a letter of reprimand from a worker s personnel file after 18 months (usually referred to as a sunset clause ) if there has been no further infraction. Suspension or demotion The next step in progressive discipline is usually a suspension or a demotion. A suspension is a serious penalty. It is a real punishment with financial consequences. It is intended to send a clear warning to a worker that their employment is in jeopardy and, without improvement, the employer s next response to a repeat incident or failure to improve may be a longer period of suspension or a move immediately to termination. Because of the significant impact of a suspension, the collective agreement language clearly states that the employer can only suspend for just cause. Notice of suspension must be in writing and must set out the reasons for the suspension. Suspension letters are subject to the grievance process. At an arbitration hearing, the employer would have to prove there was just cause for the suspension. In labour law and the unionized context, arbitrators apply the just cause standard to review the employer s conduct to determine if its disciplinary response was warranted or appropriate. The burden is on the employer to prove the events that led to that disciplinary response. The union will argue there was no just cause, and, if there was cause for a disciplinary response, that the penalty was excessive. Demotions can be a disciplinary or a non-disciplinary response. It is very important that the union forces the employer to identify what category of demotion it is issuing PAGE 6
to a worker. Disciplinary demotions are issued only for a limited period of time. Non-disciplinary demotions can be for a limited period of time or a permanent move. Both forms of demotion are grievable and subject to the just cause standard of review. Termination The last and final step in the progressive discipline system is termination. The same requirements in place for a suspension also apply to terminations. Notice must be in writing and the reasons must be communicated to the worker. The just-cause standard applies. The employer has to prove there is a well-established history of progressive discipline and a culminating incident must have occurred unless there was an extremely serious incident that would justify termination, such as theft or a criminal incident. Termination grievance hearings are conducted on a full arbitration basis, meaning the arbitrator s award is precedent setting and the outcome of the case can be referenced and relied on in other similar cases. The case law is clear that an employer must expressly tell a worker and provide notice every time they impose discipline about the employment consequence if positive changes do not occur. An employer is also required to respond promptly to incidents of misconduct. An employer who delays discipline can be seen to be condoning the problem or behaviour. The employer must document and clearly communicate to the worker any disciplinary action taken. The employer must explain the problem, the acceptable standard, the action taken to meet the standard, and the date by which change will be assessed. The employer must always ensure the discipline process is private and confidential. The role of a steward in disciplinary situations BCGEU members who are being disciplined by their employer should, as a first step, be encouraged to talk to their steward. Stewards need to gather factual information: the who, what, when, where and why of the disciplinary situation. It is very important to pay attention to grievance timelines and to clarify exactly when the incidents occurred. After establishing the facts of the case, the union steward should consider: whether the employer has followed the collective agreement language; whether the employer has followed the progressive discipline steps. It may be that misconduct has occurred but the penalty is excessive; and whether or not to file a grievance within the required time limits. It s very important for BCGEU stewards to review their collective agreement language on discipline. As mentioned, some agreements contain sunset clauses that wipe clean a discipline record if the member maintains good behaviour and there is no repeat of the prior misconduct within a certain period of time. In these circumstances, the union may be able to argue it was inappropriate for the employer to move to the next step of the discipline process. Whether the discipline response is the right one will depend on a number of factors that will include, amongst other considerations, collective agreement language, past practice between the parties, the severity of the behaviour/conduct, and the past discipline record of the member. PAGE 7
Benefit overpayments: Double Recovery of medical leave compensation benefits By C. Sullivan Coordinator CGEU members on medical leave may end up in a situation where they receive an excessive amount of compensation during their medical leave, leading to an employer Brequest for reimbursement. These situations occur when BCGEU members who are in receipt of (or received) short term or long-term disability benefits and also receive a large financial award, such as a WCB benefit claim or an ICBC settlement payment that is often awarded retroactively. BCGEU collective agreements and contract law operate to prevent situation where members may receive benefits twice for the same medical claim. In these doubling-up situations, BCGEU members in your worksite may have to face and answer an employer-filed grievance that seeks an order from an arbitrator directing them to pay a large sum of money back. Stewards may be asked to help deal with benefit overpayment issues. Double recovery/integration/subrogation Double recovery involves circumstances where a BCGEU member is receiving or has received income or benefits such as sick leave or long-term leave benefits from the employer or an insurance carrier. At the same time, that member also filed a WCB benefit claim or appeal or commenced a personal injury lawsuit seeking compensation for the same period of time they collected or are collecting sick leave benefits. If and when the member receives the WCB benefits (usually a retro lump sum of benefits for a significant period of time) or receives the ICBC settlement payment or judgement, the worker has to reconcile or repay the money that was initially paid to them by the employer or the benefit carrier. Otherwise the worker has been paid twice for the same period of time and is in a so-called double recovery situation. The law says that a worker cannot get both sick leave benefits and WCB benefits or an ICBC payout (that includes a claim for sick leave benefits) for the same period of time. When this occurs, the member has received double recovery benefits. The employer or the carrier seeking repayment will contact workers who don t pay back the excess benefits. If the repayment is not forthcoming within a reasonable period of time after the worker is advised of the debt, the employer may file a grievance seeking an order for recovery of the paid benefits. BCGEU collective agreements allow employers to file employer grievances. Most of our collective agreements and benefit plan provisions contain so-called subrogation or integration language. The language requires the integration of third party financial claims with the disability benefits paid under the collective agreement or the disability plan. The language says that benefits will be PAGE 8
reduced by all other disability income benefits that the disabled worker is entitled to receive to prevent a double recovery situation. The amount of the sick leave benefits paid by the employer (or the carrier) will be reduced by the amount of disability benefits that the worker was entitled to obtain from the third party for the same period of time. The integration can include Canada Pension Plan disability benefits, WCB benefits and ICBC settlement monies or litigation outcomes. The term subrogation is used in an insurance context where a worker has made a successful wage loss claim against an insurer. It means the substitution of one person or group by another in respect of a debt. It usually involves an ICBC claim. The subrogation occurs when ICBC pays an insured for a loss caused by a third party. The insurance company is then subrogated and steps into the shoes of the insured. In the past few years, more employers including the government, are filing grievances against members who received benefits both from the employer (or the insurance carrier) and later receive an ICBC benefit payout for the same period of time. The grievance seeks the recovery of the subrogated benefit amount and in the case of a WCB benefit payment, the employer seeks the recovery of the overpayment or integration amount. How do I help a member with an overpayment issue? The first step is prevention: we need to educate workers to avoid overpayment situations. Here s a likely scenario: you or a co-worker are involved in a car accident or other injury litigation and have commenced a civil claim. At the same time, you are collecting employer or carrier sick leave benefits. In this case, information about the benefits and the subrogation language in the collective agreement needs to be provided to the personal injury lawyer. Many personal injury trial lawyers are not familiar with labour law or the collective agreement language regarding subrogation or overpayments. Here s another plausible scenario: you or a co-worker are making a WCB claim or filing an appeal. You are also collecting sick leave benefits while awaiting WCB adjudication. If that claim or appeal is successful, you are required to integrate the benefits by notifying the employer or the carrier about the WCB money. Before the WCB cheque is cashed, that money needs to be reconciled with the sick leave or long term disability benefit monies the member already received. The reconciliation occurs by notifying the insurance carrier or the employer to determine if the money has to be repaid. Many BCGEU members are currently facing grievances where employers are seeking large sums of money. These members received double recovery payments and did not reconcile the sources of money. For these grievances, the employer is relying on the collective agreement language that says that members are precluded from receiving double recovery benefits and must integrate the separate benefit payments. This means they will likely have to repay any excess monies they received. Prior to an arbitration hearing, members will be asked to make arrangements for a re-payment plan and, if they refuse, employers are proceeding to arbitration hearings and asking for orders against members for the amount owing. These orders can potentially be registered in court against the member as a judgement. Members who remain on sick leave benefits are also seeing their monthly benefit amounts reduced to repay the money owed to the employer or the carrier. If you become aware of a member facing these circumstances, contact your BCGEU staff representative who will ensure the member gets the best advice from the union about their obligations and options. PAGE 9
By K. Mooney Staff Representative Sexual misconduct off-duty can lead to discharge (Ghomeshi case) Workers generally have a right to privacy that is beyond the reach and interest of their employer once they leave their workplace. In certain situations, however, a worker s off-duty behaviour can lead to disciplinary measures up to and including discharge. The recent firing of former CBC radio host Jian Ghomeshi offers a much-publicized example of how and when off-duty conduct can place one s employment in jeopardy. While being investigated by the Toronto Star for engaging in non-consensual rough sex with a former girlfriend, Ghomeshi informed his employer that the allegations were untrue. However, on October 26, 2014, Ghomeshi was fired by the CBC after it came into possession of graphic evidence showing that Jian had caused physical injury to a woman which appeared to contradict his earlier statement. CBC fired him because of a fundamental breach of CBC s standard of acceptable conduct for any employee Jian s conduct in causing injury to a woman was inconsistent with the character of the public broadcaster, was fundamentally unacceptable for any employee, was likely to bring the reputation of his fellow employees and CBC into disrepute and could not be defended by the CBC. Following his discharge, Ghomeshi was criminally charged with seven counts of sexual assault and one charge of overcoming resistance by choking. As a result of the ensuing media furor, many in the court of public opinion have already convicted Ghomeshi even though he has yet to be convicted of any crime. In respect of his employment, a grievance was filed at his request by his union, the Canadian Media Guild. Millhaven Fibres Ltd. V Oil, Chemical and Atomic Workers International Union Local 9-670 (Mattis Grievance) [1967] OLAA No 4 is an important case on the issue of discipline for off-duty conduct. The arbitrator held that an employer s right to discharge a worker for conduct that occurs outside the workplace depends on the effect of that conduct on the employer s operation. According to Millhaven, discharge will be justified only if the employer can show that: (1) the grievor s conduct harms the Company s reputation or product; (2) or the grievor s behaviour renders the worker unable to perform his duties satisfactorily; (3) or the grievor s behaviour leads to the refusal, reluctance or inability of other co-workers to work with him; (4) or the grievor is guilty of a serious breach of the Criminal Code, rendering his conduct injurious to the general reputation of the Company and its employees; or PAGE 10
(5) the grievor s conduct makes it difficult for the Company to efficiently manage its work operation and efficiently direct its working forces. The test set out in Millhaven has been applied in cases involving Facebook postings, criminal convictions, incarcerations and a variety of other situations. It will also be applied when the Media Guild assesses the facts and circumstances surrounding Ghomeshi s discharge. The Canadian Media Guild has conduct of this grievance as the exclusive bargaining agent under the Canada Labour Code. It will assess the likelihood of success at a hearing and reinstatement after considering the evidence of the potential or actual damage to CBC s brand, reputation and integrity of its operation. Significant consideration will also be given to the ramifications that Ghomeshi s potential reinstatement might have on other CBC workers. All of these factors will be influenced by the extent to which the original allegations of sexual misconduct are found to be true. In the event the Media Guild decides to proceed to an arbitration hearing, Ghomeshi s fate at CBC will be determined under the civil standard of just cause. The standard was defined by the Supreme Court of Canada in F.H. v McDougall [2008] SCJ No 54 as requiring an arbitrator to determine whether it is more likely than not that the off-duty conduct relied upon by the CBC in imposing discharge was sufficiently egregious in nature so as to support a conclusion regarding the incompatibility of his ongoing employment. Another relevant consideration will be the outcome of the criminal process. If he is convicted, the fact of the conviction can be entered as evidence at the arbitration hearing and the arbitrator must accept the facts from the criminal case as true and proven because the criminal standard of proof is much higher than the civil one. In certain situations, however, a worker s off-duty behaviour can lead to disciplinary measures up to and including discharge. PAGE 11
By K. Curry Staff Counsel W Worker rights during probation hat rights do workers have if they are rejected during their probationary period? A recent arbitration decision dealt with a collective agreement provision that stated that probationary workers have no seniority rights and they may be discharged at the employer s discretion. (Tech Highland Valley Copper v United Steelworkers, Local 7619, [2014] BCCAAA No 146). Despite the bleak language strongly favouring the employer, the arbitrator reinstated the probationary worker. The arbitrator held that an employer must communicate the standards that the probationary worker is required to meet and give the probationary worker a fair opportunity to meet those standards. In the Tech Highland case, the probationary worker received her first probationary report after two weeks work. She was found to be below average in job performance, job productivity, job understanding and safety. However, the supervisor recommended that she be retained until at least the next probationary report. After receiving that initial report, she worked an additional 10 shifts prior to being terminated. The probationary worker was not given any additional feedback following the first report. There were no incidents prior to the termination that the employer relied on to justify the termination. The arbitrator noted that the difficulty for the employer on these facts was whether the worker on probation was given a fair opportunity to show and be assessed for improvements after the first report. The arbitrator concluded that the probationary employee knew that she had to improve following the first report after two weeks work, but the employer did not provide a fair and reasonable assessment of whether her performance had reached an acceptable standard after the initial report. Accordingly, the grievance succeeded and the member was reinstated. B.C. s Public Service and many other BCGEU collective agreements set out a different standard for rejecting workers on probation. Workers can be rejected on probation on the basis that they are not suitable for the position. The union has successfully arbitrated rejection on probation cases that involved the suitability language. In British Columbia v B.C. Government Employees Union, [1992] BCCAAA No 62, the arbitrator under the Public Service agreement held that the employer must prove that the requisite standard has been defined and that the probationary worker has been given an opportunity to meet the standard. The arbitrator said that defining the standard includes a communication of any deficiencies in performance perceived by the employer and a clear statement of the consequences of a continued failure to repair those deficiencies. It is only when the employer has made clear the consequences of a failure to meet the PAGE 12
requisite standard that an arbitrator can conclude that the worker is incapable of meeting and maintaining it, the arbitrator said. While the probationary worker received complaints about one part of his job, the grievor was not put on notice about the seriousness with which the employer viewed those complaints. He was also not cautioned that a failure to address them could result in his removal from his probationary position. The grievor was taken by surprise when he was removed from his position. The arbitrator concluded the employer had not established that it had cause to remove the probationary worker from his position because of its failure to put the grievor on notice that his performance was unacceptable and that he faced removal from his position if he did not improve. The question of whether the probationary worker was capable of meeting and maintaining a satisfactory standard was left unanswered. As a result, the grievance was granted. BCGEU stewards assisting workers rejected on probation should consider: Whether the standards of the work performance were properly communicated to the worker, Whether the worker was put on notice their job was in jeopardy and, Whether the worker was given a fair opportunity to meet the standard. PAGE 13
Honesty is the best policy during investigatory meetings By A. Davis Staff Representative CGEU members called in for investigatory meetings have an obligation to respond honestly to the employer s questions, even in circumstances where the basis for the investigation is relatively minor in nature. BIf a member makes a deliberate attempt to deceive the employer by a false or misleading explanation, the worker s dishonesty creates a separate employment offence and is a basis for further discipline, arbitrators have found in these decisions: FortisBC Energy Inc. v International Brotherhood of Electrical Workers, Local 213, [2011] BCCAAA No 145; Teck Coal Ltd. (Fording River Operations) v United Steelworkers Local 7884 [2014] BCCAAA No 124. Falsehoods stated or made during the investigatory stage are inevitably uncovered later through the evidence of other witnesses and documents. Objective evidence that is not in harmony with a member s history of events will likely lead to a rejection of the member s evidence at an arbitration hearing. The case most often referenced by the courts and arbitrators when deciding whether the evidence of a witness is credible or believable is Faryna v Chorny, [1951] BCJ No 152 (CA). Unfortunately, many BCGEU members are terminated for reasons that include allegations of being untruthful during investigation meetings or interviews. Some workers panic when they realize the jeopardy of their situation and they resort to lying, thinking that the employer may not yet know all of the details of what actually happened. While a member can invoke the right to silence during an investigatory meeting, that response in some circumstances may be viewed as insubordination, for example when there are exigent safety issues or ongoing damage to the employer s legitimate business interests as a result of the silence. The silence or refusal to answer questions may also be viewed as a separate employment offence and a basis for further discipline. On this point, refer to the case of Tober Enterprises Ltd. v UFCW, Local 1518 [1990] BCLRBD No 51. In other situations, a member s silence may compel the employer to make decisions about their employment based on the information they have in front of them, without the benefit of the member s response or explanation. As long as the employer s response is reasonable in the circumstances, they will not be faulted for taking reasonable action including the disciplinary response based on the information available to them at the time they made the decision. In preparation for an investigation disciplinary meeting, BCGEU stewards should tell union members that honesty is the best policy. To prepare, ensure you are aware of the basis for the interview and that you have had an opportunity to discuss the issue with the member before the meeting. The employer may only be willing to give you a general idea about the purpose of the meeting ahead of time, but the member generally knows why they are in trouble and should be able to give you enough details for you to be prepared for the interview. BCGEU stewards should always advise members to tell the truth. Members should only be invoking their right to silence in circumstances where the allegations are serious PAGE 14
and the alleged conduct could lead to criminal charges. If a member wants to remain silent, such as in allegations of theft, it is recommended that you consult with a staff representative. The consequences for the member are very serious both in the labour relations and the criminal context. The disciplinary consequence could be termination and the theft or other serious misconduct allegations could lead to criminal charges and a court process. Part of a steward s role is to speak up when the employer is moving the discussion beyond the purpose of the meeting. The investigation is not a fishing expedition for the employer to try to find other evidence of misconduct. If the meeting is being taped, speak up on the record and object if the employer is moving the discussion to areas where you have not had time or the opportunity to review the information with the member. If it becomes apparent in the course of a meeting that you need to caucus with the member, ask for a break. During the break, provide guidance to the member to assist them to protect themselves from any discipline for dishonesty. When an arbitrator reviews a misconduct allegation, they consider many factors including the grievor s candour, whether they made a timely admission of wrongdoing, whether they made a timely acknowledgement of responsibility or apology and whether the member expressed remorse. The review of these factors assists the arbitrator in determining if the grievor has rehabilitative potential : reference Kamloops (City) v CUPE, Local 900 [2014] BC- CAAA No 32. Admissions of dishonesty, apologies and remorse demonstrated after the fact are viewed skeptically, are seen as self-serving and may preclude a reduction in discipline. So, the bottom line for stewards advising members about what to say in the investigation meeting? Honesty really is the best policy in life and in investigatory meetings. A recent case illustrates the importance of honesty and how members can, by their own actions, unwittingly provide the best evidence for the employer s case against them. In Telus v TWU (2014) ABCA 199, a five-year service technician requested a day off work on July 3, 2011 to play in a slo-pitch tournament. The employer denied the request due to the summer vacation schedule, as there were no other technicians available to replace him. On July 3, 2011, the technician sent an email to his boss saying he was sick and wouldn t be at work that day. His suspicious manager went to the ballpark and observed the unsuspecting technician pitching at the tournament. The next day, the employer called the member to a meeting and asked questions about his previous day s activities. The member told the employer he was sick in the morning but felt well enough to go to the park after resting. Twice he told the employer he had gone to the park only to watch the game but not to pitch. Finally, the member was confronted with the evidence that he was seen pitching. The member acknowledged that he had pitched but said he had not taken a turn at bat. The employer terminated the worker s employment on the basis of his dishonesty in the investigatory meeting and calling in sick when he wasn t. The union was successful in getting an order for reinstatement at the arbitration hearing. However, the Alberta Court of Queen s Bench overturned the arbitration. The union appealed the court decision to the Alberta Court of Appeal that confirmed the arbitration award should be overturned and the termination was justified. The Court said the technician had falsely called in sick in order to play slo-pitch. Further he had repeatedly lied to the employer during the investigatory meeting and the trust relationship could not be repaired. Unfortunately, many BCGEU members are terminated for reasons that include allegations of being untruthful during investigation meetings or interviews. BCGEU stewards should always advise members to tell the truth. PAGE 15
Report from the B.C. Human Rights Tribunal The role of a steward in a human rights complaint By C. Sullivan Coordinator he B.C. Human Rights Tribunal submitted its annual report to the Minister of Justice in July 2014. The report provided some interesting statistics and some reflections on the state of human rights protection in British Columbia. TBetween April 2013 and March 2014, 1102 new human rights complaints were filed with the Tribunal. Of those numbers, 26 percent were rejected at the initial screening level. Of the 801 cases accepted for processing: 555 complaints were eventually settled; There were 233 applications to dismiss of which 127 were dismissed and 29 were partially successful. The Tribunal denied 77 applications to dismiss; The Tribunal made 36 final decisions after a hearing (compared to 51 in the previous year). Of these cases, 58 percent were dismissed and 42 percent were found justified. British Columbians should be concerned by the fact that most complainants who proceed to final hearings are now self-represented. The B.C. government eliminated legal aid assistance for human rights complainants in 2002. Prior to the removal of the legal aid tariff, all complainants could obtain legal assistance and representation if the complaint was referred for hearing to the then B.C. Human Rights Board of Inquiry. Since 2002, the government has funded a legal clinic at the Community Legal Assistance Society in Vancouver. The clinic is chronically underfunded and cannot accept most referrals or requests for assistance. As a result, the number of unrepresented complainants has increased from previous years. Complainants had counsel in only 12 of the 36 most recent cases that proceeded to a Tribunal hearing, even though respondents had a lawyer in 24 cases. Historically, there has been a correlation between legal representation and success for complainants although this year appears to be an exception: complainants with counsel succeeded in only four of 12 cases. In the 22 cases where the complainant appeared without a lawyer, they succeeded in 11 hearings, including three cases where no respondent appeared. Most common grounds for complaints to B.C. Human Rights Tribunal 2013-2014 1. Discrimination on the basis of disability 43 percent of complaints filed 2. Sex 13 percent of complaints filed 3. Family and marital status complaints 9 percent of complaints. PAGE 16
Most claims involved discrimination complaints in employment (61 percent). Human rights complaints alleging the denial of services or benefits in accommodation, service or facilities customarily available to the public were filed in 19% of cases. There were no final decisions for cases involving claims of discrimination regarding membership in a union. All workers in B.C. have the option to file human rights complaints to the BC Human Rights Tribunal. Unionized workers, including BCGEU members, also have the option to file internal grievances or complaints under the relevant collective agreement language alleging discrimination in employment. The courts, including the Supreme Court of Canada, have confirmed that arbitrators have jurisdiction to interpret and apply the relevant human rights legislation. Some workers choose to file both an outside human rights complaint and an internal grievance or discrimination complaint. Most, if not all collective agreements contain language that states a worker is not entitled to a duplication of process. The worker therefore has to elect which process they will pursue. The submissions provided to the BC Human Rights Tribunal by unrepresented BCGEU members can adversely affect the union s ability to assist them with their grievance/internal complaint on human rights issues. Many employers and some lawyers assisting unionized workers with human rights issues do not have a good understanding of labour law, labour relations and the unionized workplace. In the area of accommodation, it is crucial that unions be present and participating in workplace solutions. The role of a steward in human rights complaints If a member asks you for advice about issues or incidents that they believe could meet the test for discrimination under human rights legislation, the first step in your investigation will be to obtain the relevant facts to determine if discriminatory treatment may have occurred. The legal test is strict and includes a requirement that a complainant must prove a prima facie case. This means that the complainant must be able to prove or establish facts from which it can be inferred that the adverse treatment in the workplace was linked to a personal characteristic of the member. Stewards need to gather factual information: the who, what, when, where and why of what happened. It is very important to pay attention to timelines and to clarify exactly when the incidents occurred. Most collective agreements contain strict timelines for filing human rights complaints through the grievance or internal complaint process. The B.C. Human Rights Tribunal has a six-month time limit for filing. As a steward, you need to be clear about your role and responsibility in the investigation to determine if the member experienced discrimination. Most human rights complaints are not resolved at an early stage. Union stewards need to ensure they have collected a full record about what happened. This information will be provided to the advocate who will assist the member to resolve their claim or prepare and present the case at an adjudication hearing. If a member asks you for advice about whether they should file an outside human rights complaint, the BC- GEU encourages members to use the internal processes including the complaint and grievance processes where members will be represented by the union and will have access to our servicing resources including staff with skills in both human rights and labour law. PAGE 17
Case summary Federal government s rollback of scheduled RCMP wage increases did not violate the Charter By J. Nason Co-op Student n December 2008, in response to the global financial crisis, the federal government unilaterally reduced previously approved wage increases for RCMP members for the Iyears 2008-2010. In March 2009, Parliament enacted legislation, the Expenditure Restraint Act ( ERA ), which provided the legislative mandate for the government s unilateral actions. The ERA applied to all public sector wage increases including the wage increases for the RCMP. Robert Meredith brought a constitutional challenge on behalf of all RCMP staff, arguing that the December 2008 decision and the ERA legislation violated the RCMP staff members rights to collective bargaining protected by section 2(d) of the Canadian Charter of Rights and Freedoms, since the wage increases were reduced without any consultation with them. On January 16, 2015 the Supreme Court of Canada held in Meredith v Canada (Attorney General), 2015 SCC 2 that the ERA legislation and the government s December 2008 decision did not violate the Charter. The wage increase limits set out in the ERA applied to all public employees and were consistent with the wage increase rates bargained for in other public sector agreements. The court noted that the wage increase limits applied only for the period of time from 2008-2010. The court found the ERA legislation did not prevent negotiations on other compensation-related issues for the RCMP staff and lastly the ERA legislation and the December 2008 decision did not substantially interfere with the RCMP staff s right to collectively pursue workplace goals. PAGE 18
Case summary By J. Nason Co-op Student T The non-unionized association imposed on the RCMP violates the Charter he association structure imposed on the RCMP by the federal government violates the Charter, the Supreme Court of Canada found in the recent decision Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1. The federal Public Service Labour Relations Act ( PSLRA ) currently excludes RCMP staff from the labour relations structure for workers in the federal public service. Instead, other federal legislation mandates a non-unionized labour relations system for RCMP staff that only allows Mounties to raise labour issues through a Staff Relations Representative Program ( SRRP ). SRRP representatives and management consult on labour relations issues, but the final decision on all issues stays with management. The Mounted Police Association of Ontario filed a constitutional challenge regarding the legislated exclusion of RCMP members from the PSLRA and the imposition of the SRRP labour relations scheme arguing that the combined effect of the legislation violates RCMP staff members freedom of association rights protected by section 2(d) of the Charter. On January 16, 2015 the Supreme Court of Canada agreed with the Mounted Police Association of Ontario. The Court reasoned that section 2(d) protects a meaningful process of collective bargaining that provides workers with a level of choice and independence to allow them to determine and pursue their collective workplace goals. The imposition of the SRRP labour relations regime denies RCMP staff that choice. An employee association must be accountable to its members and independent from management in order to meet Charter requirements. The SRRP was not chosen or controlled by RCMP employees and lacked independence from management as it was imposed on workers. The SRRP failed to equalize the power imbalance inherent in the employee-employer relationship, which had the effect of leaving RCMP staff members vulnerable, and disadvantaged. However, the Court clarified this decision does not require Parliament to include the RCMP in the PSLRA scheme. It does require that any future labour relations model established for RCMP staff must comply with the freedom of association guarantees outlined in section 2(d) of the Charter. PAGE 19