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Labour Studies
John Barkans

Labour Studies 3C03 th Wednesday, January 9 , 2013 Where do the labour laws come from? - Legislation - Government - Collective agreements - Individual bargaining – agreement made with employer - 3 modes that regulate employment law: common law contract of employment, statutory interventions (government – pass laws you can’t contract out of – ie. ESA), collective bargaining - In these 3 modes – who makes the law? Where does the law come from? – government – legislation - judiciary - When judges make and interpret law – how do they do it? – Hurley v. Eddingfield  plaintiff v. Defendant  Dr. Eddingfield – had a patient named Charlotte Burke who was pregnant (difficult pregnancy) – she sent a messenger to get Dr. Eddingfield to attend to her (was quite ill) – Dr was not busy but was not willing to do so for “no reason at all” – Charlotte Burke dies  executor of the estate suing on behalf of the deceased because the doctor was negligent – how do we know what the contract was? – interpret by exactly what was said – interpret based on the reasonable expectations of the parties - Protect the right of the doctor to enter into a contract and the rights to the patient - The Point: big cases are really just policy decisions that the courts have to make - Labour law – What laws apply to you? – it’s a constitutional issue – powers of government come from the constitution - Preamble of section 91: Powers of the government Review Nowhere in sections 91 and 92 is labour mentioned in the consititution..not clear who passed labour laws Industrial dispute regulation act Valid until 1925..then challenged the act Went to privy council in England: said was outside const of federal govt Postoffice..etc federal 1966 when feds have jurisdiction over banking , then they can pass legislation laws ie telephone Otherwise not But exclusive It’s federal or provincial not both Lec 2 Jan. 16 Consitution Act Section 91 +92 Toronto Election Commission vs Snider (1925 Privy Council) Reference re hours of labour (1925 SCC) Bell Telephone Case (1966 SCC) The common law (judge made law) contract of employment 3 regimes..modes to regulate labour laws 1. 2. 3. collective bargaining How employment contracts are interpreted by the courts What court will do in violation of breach of contract How to enforce employment contract/how is it regulated? If breached..go to court for breach of employment contract General principles of common law contract in employ Mindset of common law, judge made law Ie Christie (plaintiff) vs The York Corp. (not the employer) Hockey fan...york corp owned rest. Was refused service Can sue if contract is broken (breach of contract) or tort (civil wrongdoing) rest was instructed not to serve ppl of colour Christie lost..judge said rest could serve who they wanted..freedom of commerce, freedom of contract So judges will tend to think you should work according to the agreed upon’re free to enter it - mindset of the common are bound Thus need for statutory intervention Implications of this mindset: You didn’t have to enter into the contract Role of judge is to enforce what you agreed to ---------------------------------- Is the person an employee or not? Labour law only applies to employers and employees Need to be classified as an employee (not independent contractor/self employed) First assignment Interpret whether employee or contract Make logical agreement Who has control..who owns tools, is there a chance for profit or risk for loss Whose business is it? Are u in the business for yourself or part of another business? If not an employment, labour laws do not apply ----------------------------------- Case Study Polar Penny Blog about time in Nunavut Worked for tourism industry..tourism marketing officer. Garbage, degradation to environment Didn’t identify her employer Blogged in spare time Employers imply terms into contract “the duty of good faith and fidelity” common law implies this Can’t portray employer’s business in a bad light “the duty to obey” “the duty to exercise reasonable skill and care” The least onerous...laxist: “the duty to exercise skill and care”..difficult to prove incompetency But as long as you’re should be fine In boulet..he got many warnings and chances to improve himself If you portrayed yourself as having more skill than in actual...then it’s easier for employer to fire you Second “duty to obey” The most onerous duty “the duty of good faith and fidelity” Laws vs London Chronicle Case Worker had supervisor and bigger boss Got fired for not obeying bigger boss She won, then appeal was dismissed They did not think she broke duty to obey She was unsure who to follow..only working there 3 weeks Won ‘duty to obey’ – has to be reasonable, willfull willfull disobedience of a lawful order Laverty vs Cooper Plating Inc Case Sued for wrongful dismissal Commonlaw spouse opened plating business..she was fired Trade secrets, conflict of interests, loss of clients Concern that she would hurt employers business “the duty of good faith and fidelity” No evidence that employer lost any business at all She lost .. to be in violation of the duty is the POTENTIAL to cause harm, whether intended or not You must not only be pure but seem to be pure – J. Caesar’s wife It doesn’t seem pure to have your commonlaw competing The duty of good faith and fidelity - contextual Polar Penny had difficulty due to things did at home in spare time Can still be applicable when employment has ended Fidelity – from feudal times..loyal servants Be loyal, promote, protect interests of your boss Sec 2 of charter of rights and freedoms Fundamental freedom of thought, freedom of expression So what did PP get fired? And what good is the charter then? Sec 32 Charter applies to everyone..kinda..but is directed to parliament, gov of Canada, ... Legislation designed to attack state action, govt power so does not apply to individuals/private entities Charter is directed at controlling gov actions Dismissals These duties are important because if they are broken you are in breach of contract If you are in breach of contract , employer has cause to fire you You’ve broken employment contract, violated fundamental term of contract.. Employer has to give notice or pay if not in fundamental breach Wrongful dismissal under the common law: you weren’t given appropriate notice or pay instead of notice If against the duties, no notice or pay is needed Lec 3 jan 23 Assignment 1: Define issue – what needs to be decided..tests, factors, apply facts..arrive to conclusion Review Implied duties in employment contracts: common law position: contract free and voluntary Duty to exercise reasonable skill, duty to obey, duty of good faith and fidelity Common law views employment contract as contract of service Servitude is core of employer/employee relationship Helps employer to better control labour process and protect their business interests due to control of labour process Employment contract is mutally agreed upon The three duties reflect servitude How can employment contract be legally terminated? Most contracts are of indefinite duration Vs fixed term contracts Three ways it can be ended Or by death of a party, or frustration ie earthquake, fire, or you can mutually agree to end it 3 most sign ways to legally end contract 1. Summary dismissal for cause Fundamental repudiation of employment contract Essential terms of e.c....could be implied If you wilfully disobey orders or not showing good faith or fidelity or exercise reasonable skill 2. Can be ended according to terms of contract Eg. if contract expires 3. With reasonable notice or pay in lieu of notice Even if you have done nothing wrong or contract is indefinite Under the judge made (common) law, employer does not need good cause to terminate You can be fired at any time, for any reason, for no reason, provided employer gives you reasonable notice or pay Wrongful dismissal: employer does not give adequate notice or pay in lieu of notice If an employer has cause, no notice needs to be given Common law employment contract=individual contract regime between employer and employee Was there just cause to terminate you without notice Case study cronk Did not get proper notice What is reasonable notice? How is it determined? What factors need to be looked at to determine reasonable notice? The black letter law, as seen in Cronk case How reasonable notice is determined p.58 para 18 four fold test 1. Character of the employment Position held (high or low level status employee, many responsibilities?) The higher the status the longer the notice 2. The length of service of employee The longer the loyalty, the longer notice 3. Age of servant The older the more notice you need (longer to find new job) 4. Availability of similar employment and skills of servant Employment market, limited skills mean limited market Relevant facts of Cronk case: 29 year employee (actually 35 yrs but raised kids for 7) 55 yr old Grade 12 education Company downsized Junior position Got the golden handshake with 9 months pay Suing for wrongful dismissal: whether 9 months was reasonable Usually give pay in lieu of notice to protect against animosity Lawsuit for wrongful dismissal Quick trial, no evidence called, agree on facts Judge agreed on 20 months Issue was character employment: low level status should she get same notice period as managers? Fewer higher status positions available so harder to find such position so they need more time to find job Stigma attached to mgr losing good job judge says this is bogus...not a good rationale 2 justification for giving higher status employees more notice Average time for mgrs is 9 months to get new job So why are we giving longer notice periods? So judge gives Cronk 20 months notice period Same period as mgrs They are given notice to find a new job to pay bills The owner appealed with The Ontario court of Appeal on grounds of low level status employee Result of appeal: reduced to 12 months (three months more than employer gave) Justified by saying starry deciv..precedent was set, how dare to overthrow precedent p.67 we can’t change the law, ...smoke screen from now on low level employees are deserving as much notice as mgrs lawyers and everyone would be in disarray if we allow this decision to stand we can’t upset precedence...although happens all the time Di Tomaso Case 33 years of loyal service 62 yrs old..low level worker Based on Cronk case, he should get 12 months notice Di Tomaso got 22 months Employer appealed to Ontario court of appeal Appeal was dismissed, and changed to 22 months Same judge as in Cronk case who gave her 20 months but got turned his revenge Status of employment no longers matters in term of notice Wallace v. United Grain Growers S.C.C. *not in courseware Should a terminated employee get awarded for mental distress caused by dismissal? Wallace had 25yrs experience in web press sales with a competitor He was reluctant to jump ship ...senority, job security They gave assurances, really wanted him at Public Press (division of United Grain Growers) So he quit his job and jumped ship He was top sales person at Public Press After 14 yrs got commended with award for fine work Two weeks later was reason given at this time A week later was given a reason: incompetence and failure to perform duties satisfactorly So civil action..wallace sues for wrongful dismissal..not given proper notice UGG said they had cause to dismiss him with no notice Ongoing for 2 yrs and UGG maintains they had cause to summarily dismiss Wallace thus no notice Wallace can’t find job Because UGG said they had cause to dismiss him Rumours circulated...drinking problem, stealing...plausible reasons for dismissal Wallace becomes depressed and has therapy When trial comes, UGG concedes to no reason for dismissal If you give for damages to mental distress, every person laid off could claim What pay instead of notice should have been given? Mid level status, 14 yrs, age 57ish, only skill web sales, promise made: reliance factor Judge awarded 24 months – on the high end Only worked 14 yrs 24 months included compensation for mental distress Appealed then given 15 months Wallace appeals to supreme court, given 24 months again UGG callous, manner he was dismissed was a factor because it caused him damage Damaged reputation, mental distress Made it harder for him to get another job so awarded some extra months Issue raised in Cronk Duty to mitigate your damages Need to make reasonable efforts to find new job If you do nothing, court can reduce outcome Issue condemnation Forgiveness If you’re late 15 min for two yrs, and only then does your boss fire you, law says your boss condoned your behaviour through his silence, so he can’t terminate As boss you would need to document and write up.. Does employer need to give you a chance to improve before dismissing you? Does he need to provide progressive discipline? NO Well it Laverty who had conflict of interest or Boulet or Steward vs Whistler Need to give employee a chance to improve Notion of having to give warning is getting into the employment contract If you are wrongfully dismissed, you get damages Common law does not order that you be rehired, does not force employer to take you back Just get pay in lieu of notice reasons 1. Law wants to preserve mutuality between employee and employer Employee needs to give reasonable notice too But employer can’t show damages so won’t sue If were forced to go back to work: forced labour=slavery 2. Don’t want to question the judgment of the employer If you get job back, employer will look for reasons to get rid of you and either you quit or get fired Haldane case p.53 Told employer off Employer suspended pay Sued for wrongful dismissal Won In employment contract: i work and get paid for services rendered If employer suspends pay for three days, you have terminated work (her) Employer breached contract: can’t suspend work for three days Services are work for pay..not when we feel like it Second issue Constructive dismissal: when employer wants you to quit ...need not give reasonable notice Driven to quit..employer makes it uncomfortable Common law says that even if you quit, you can still sue for wrongful dismissal; employer cannot weasel out of obligation Labour Studies 3C03 th January 30 , 2013 - Employers can put in the contract that they can terminate you without notice – that way they don’t have to pay you or give you reasonable notice so you don’t slack off - Most employees won’t sign those contracts – if you have highly transferable skills and are seen as a valuable employee you can hold more leverage with what’s in the contract - Free market produced a lot of unfair labour practices - Invented standards – statutory minimum standards – statutory interventions - Many workers don’t know their rights – that’s why they won’t take action when they are wrongfully dismissed Case: Re Becker Milk Company - Worker’s were seen as independent contractor by employee but they were entitled to overtime and they wanted to be considered under the ESA - If you are not an employee you won’t be considered under the ESA – have to establish employee status - Judge established that they were employees - Fourfold test - Second issue – whether they were managers or not – managers don’t get paid overtime – act excludes management from a lot of sections of the ESA - ESAis full of exceptions Who the act applies to – section 3 of ESA 3. (1) Subject to subsections (2) to (5), the employment standards set out in this Act apply with respect to an employee and his or her employer if, (a) the employee’s work is to be performed in Ontario; or (b) the employee’s work is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of work performed in Ontario. 2000, c. 41, s. 3 (1). - Section 3(2)(3)(4)(5) – exceptions - Section 3.2 federal employees - 3.3 diplomatic immunity - 3.4 employees of the crown 3.5 Other exceptions (5) ThisAct does not apply with respect to the following individuals and any person for whom such an individual performs work or from whom such an individual receives compensation: 1. Asecondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled. 2. An individual who performs work under a program approved by a college of applied arts and technology or a university. 3. Aparticipant in community participation under the Ontario Works Act, 1997. 4. An individual who is an inmate of a correctional institution within the meaning of the Ministry of Correctional Services Act, is an inmate of a penitentiary, is being held in a detention facility within the meaning of the Police Services Act or is being held in a place of temporary detention or youth custody facility under the Youth Criminal Justice Act (Canada), if the individual participates inside or outside the institution, penitentiary, place or facility in a work project or rehabilitation program. 5. An individual who performs work under an order or sentence of a court or as part of an extrajudicial measure under the Youth Criminal Justice Act (Canada). 6. An individual who performs work in a simulated job or working environment if the primary purpose in placing the individual in the job or environment is his or her rehabilitation. 7. Aholder of political, religious or judicial office. 8. Amember of a quasi-judicial tribunal. 9. Aholder of elected office in an organization, including a trade union. 10. Apolice officer, except as provided in Part XVI (Lie Detectors). 11. Adirector of a corporation, except as provided in Part XX (Liability of Directors), Part XXI (Who Enforces thisAct and What They Can Do), Part XXII (Complaints and Enforcement), Part XXIII (Reviews by the Board), Part XXIV (Collection), Part XXV (Offences and Prosecutions), Part XXVI (Miscellaneous Evidentiary Provisions), Part XXVII (Regulations) and Part XXVIII (Transition,Amendment, Repeals, Commencement and Short Title). 12. Any prescribed individuals. 2000, c. 41, s. 3 (5); 2006, c. 19, Sched. D, s. 7. - 3.5 #12  prescribed by regulation - Ont Reg 285/01 section 2- architects, lawyers, engineers, doctors, accountants, etc – prevent exploitation doesn’t really apply to them they don’t get exploited – they have their own regulatory acts that protect them - On reg 285/01 section 2.2 – agricultural workers are excluded from the ESA - ESAofficer will not investigate complaint unless you’ve taken certain steps specified by director of employment standards - Bill 68 – open for business act – open for business by amending or appealing certain acts - trouble for workers - 6 basic powers employment standards officer has – section 102 – can compel production of records to further investigation of complaint - Section 103 – order to pay wages – wages – any employment standard that you’re required to be paid - Section 111 – limitation period – period you have to make complaint within or you lose your right to complain – under ESA6 months - Extended limitation period of 1 year if you have repeat violations for the same kind of thing – as long as one of them was within the last 6 months - Maximum entitlement under 103 – 10,000 dollars - Section 104 – order for compensation or reinstatement or both - Don’t get reinstated under common law - No 10,000 limit in the common law - Section 104 will only apply in very limited circumstances – must fall within the limited situations set out in section 104 - Violation of leave of absence – violation of lie detector section – you have the right to refuse the lie detector test - Violation of retail business establishment act - right to refuse work on public holidays and Sundays - Reprisal – employer reprisal – intimidation after inquiring about your rights and exercising your rights - Section 108 – order the company to cease what they are doing, etc - Injunction – court order - Compliance order - 112 – employee and employer may settle the complaint then it becomes binding - Section 113 – notice of intervention – charging offending party with an offense - Civil rights vs. ESArights  can’t go below the minimum standards – null and void - Section 8.1 of the ESA– doesn’t affect your civil rights – you have the right to file a law suit it’s your civil right Mediclean Case - Constructively dismissed - They find reprisal within section 104 Labour Studies 3C03 th February 6 , 2013 - Grievance procedures - union can accept or reject grievances – have a duty to act fairly - ESAsays employment of an employee is bound by the union - If you can show that there’s been a bias towards your grievance then the director may allow you to file an ESA claim – you have to have a pretty good evidence of bias - Section 100 – ESA– when a grievance gets to the arbitrator the arbitrator is given all the powers that an ESA officer would have – except: can’t charge the employer for an offense - As a minimum standard – what’s required when your employment ends? What entitlements do you have? - Three possible entitlements: 1) Termination notice/termination pay 2) mass termination notice/mass termination pay 3) severance pay - You may be entitle to 2 of those – never 3 though - Mass termination notice/pay – is better than termination notice/pay – can’t have them both - Possibly also entitled to severance Bring a complaint to the ESA– termination notice/pay  what is meant by termination? – section 56 of ESA What constitutes termination 56. (1) An employer terminates the employment of an employee for purposes of section 54 if, (a) the employer dismisses the employee or otherwise refuses or is unable to continue employing him or her; (b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period; or (c) the employer lays the employee off for a period longer than the period of a temporary lay-off. 2000, c. 41, s. 56 (1). - Section 54 -No termination without notice 54. No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer, (a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or (b) has complied with section 61. 2000, c. 41, s. 54. - Section 55 - Prescribed employees not entitled 55. Prescribed employees are not entitled to notice of termination or termination pay under this Part. 2000, c. 41, s. 55. - Look at the regulations – 288/01 - Section 2 of that regulation – ex. People like contract employees, construction employee – seasonal - Section 3 – an employee who has neglected conduct – ex. Essentially been a bad employee – Polar Penny – Oosterboosch Case - Does it make any sense that you can be entitle to summarily dismiss someone? Mass Termination Notice/Pay Section 58 - Notice, 50 or more employees 58. (1) Despite section 57, the employer shall give notice of termination in the prescribed manner and for the prescribed period if the employer terminates the employment of 50 or more employees at the employer’s establishment in the same four- week period. 2000, c. 41, s. 58 (1). - Section 3 of regulation – amount of notice required depends on number of employees being terminated – 8 weeks notice - Mass termination – usually companies just give notice - Regulation section 3.4 – mass termination notice requirements do not imply if 10% or less are being let go – caused by permanent discontinuance as part of the business – ex. Factory stoppages Severance - Longer term employees – ex. Edna Cronk - To qualify for severance – 5 years or more at place of work - Or either 50 or more had employment severed because permanent discontinuance - Employer has a payroll of 2.5 million or more - Section 65 says the amount – basically number of years* wages – up to a maximum of 26 weeks - Prescribed employees – not entitled - What would Edna Cronk be entitled to? – 8 weeks termination pay – plus 26 weeks severance = 34 weeks pay - - - 94% of the time businesses are violating the ESA - Section 103 and 104 order of compensation or reinstatement or both - Section 74 – reprisals – for people currently employed - Now you have to notify your employer that you want to file an ESAclaim - People that have had employment relationships severed make inquiries - People are fearful to file a complaint with ESAif still employed - Statutory interventions – speedy, inexpensive - How long does it take for the investigation and for an ESAofficer to make a decision? – average – 9-10 months - How effective is it? – 2009/10 fiscal year – 48% of employees who filed complaints never collect the payment - 19,000 owed to employees only 10,000 collected Feb 13 Human Rights Code Seneca college v Bhadauria Discrimination Had phd and many years experience, applied 7 times to Seneca college but never got an interview She lost the trial Won the appeal at Ontario court of appeal College appealed Then she lost but not because she couldn’t prove it She was seeking reparations under human rights code Compensation for damages for discrimination through civil court She was seeking to sue in court for discrimination but she ultimately lost REASON SHE LOST: Demurrer under Ontario rule 126 A claim (objection) that Seneca college throughout proceeding said she has no case even if they were to take what she said to be true Seneca took allegations to be true, but Seneca still doesn’t need to give defense as Seneca says she has no case No law against discrimination Discrimination is not a civil wrong How to enforce claim against unlawful discrimination YOU HAVE TO go to Ontario human rights commission not civil court because in common law its not a law.. Small amendment to human rights code Sec. 46.1 sub 1 If you are in court and they find the human right code has been infringed, it can be taken into account Sec. 46.1 sub 2 You cant just have a human rights violation in court Ie if you got dismissed, action for wrongful dismissal, seeking reasonable notices, damages So now u bring a wrongful dismissal action but when it out that discrimination took place then you can fight for that too But if u only are seeking a human rights code violation you are out of wrong court Why did she start lawsuit instead of human rights code Limitation period: For ESA 6 months For human rights one yr Civil suit now 2 back then 6 yrs She was out of time .... Human Rights Code Part 1 sec 1-9 Sets out your rights to be free from discrimination 34 (1) complaint based system Seeking sec 45.2 order What the tribunal can order if there has been an infringment You could get your job back If you seek to use the human rights code, you don’t have to establish employee status Hrc is very broad – all types of discrimination in all areas of life ie tenant, contracts Encompasses not just employees For common law and esa, you need to establish employee status Sec 5 freedom from discrimination in employment Establish yourself as employee (if employee, otherwise use other sec.) If you have been discriminated against Two basic issues/questions to consider to determine whether the employer has discriminated against you Ie employer wont hire you because you have body piercings Ie 2 employer fires you for shaving your head Ie 3 employer will not promote you for personal reasons Ie 4 employer will not hire you, too small breasts All are not human rights violations The code does not cover physical appearance You can discriminate on basis of physical appearance Only prohibits discrimination on the grounds set out in the act and thats it 1. Does the employer practices discriminate on one of the numerative prohibited grounds in the human rights code 2. Even if it amounts to discrimination on one of the prohibited grounds, is the discrimination allowed or is it an exception built into the human rights code The discrimination may be permitted/exempted by special rule in HRC 7 key exceptions 1. sec 11 of HRC direct discrimination is not allowed but indirect isn’t allowed either bc firefighter case she was fired because of new fitness test and failed discrimination against those unfit but nothing more (sec 5) sec 11 even though its not discrimination on a prohibitive ground..anyone can be a firefighter, they just need to be fit exclusion of women...cant train and get same results as men the effect is exclusion of women and gender is one of the prohibitive grounds sec 11 (2) Exception: BFORQ – bona fide occupational requirement And you have duty to accommodate to undue hardship Sec 11 (1) excludes women indirectly Sec 11 (2) if employer can establish the fitness test is a BFORQ, then the discrimination can stand Bottom line of case Ultimately went to supreme court and found there was no BFORQ, so she was justified and won 3 steps to find out if bona fide occupational requirement 1 is the general purpose related to performance of job yes, fitness is needed for job 2 was the qualification requirements introduced honestly and in good faith consulted with union, researched studies, consulted seeked to improve quality of service 3 is the specific standards reasonable necessary to achieve job purpose was the requirement to run in three min necessary to achieve their goals theres no evidence that showed if you cant do this, you would be in danger to yourself or your team or to the public : BFORQ – bona fide occupational requirement And you have duty to accommodate to undue hardship Ie You apply to be a custodian in a school board Part of duties is to work Friday nights Job qualification But due to religious reasons you cant work it Sec 11 adverse affect on you...requirement has effect of excluding you Indirect discrimination on one of the grounds Does it fall under BFORQ 1 is it generally necessary for the job is it a reasonable qualification yes 4 was the qualification requirements introduced honestly and in good faith yes 5 is the specific standards reasonable necessary to achieve job purpose yes, and can reasonably accommodate custodian not reasonably necessary because you can make accommodations ie employer tells you to shave your beard analysis do we have human rights issue is it on one of the numerated prohibitive grounds yes, potential human rights issue employer has to prove BFORQ Does it fall under BFORQ 2 is it generally necessary for the job yes no one wants hair in food 6 was the qualification requirements introduced honestly and in good faith yes, due to complaints 7 is the specific standards reasonable necessary to achieve job purpose no, he could wear a beard net so employee wins if you can find numerate prohibitive grounds bfork sec 11 constructive discrimination sec. 14 special programs ... this allows special programs as exception employers can give special advantage to minorities, aborgingals, gender,race etc to those who are disadvantaged (still needs to gets preapproved by govt by it is allowed) sec.17 disability it is not discrimination if they cant perform duties of job..unless you can accommodate without due hardship sec 24 (1) special employment a) exception (discrimination allowed as exception)-ok to hire catholic teachers in catholic school b) cant discriminate on basis of record of offence - provincial ie speeding, littering etc can’t ask u if you have been convicted of an offence? Do you have a record? You don’t if you’ve been pardoned Ie your a bus driver with many provincial driving offenses Normally the employer can’t ask you but because of b) its exempt, bona fide c) the adolf hitler exception right to discriminate for care of personal needs d) neptosim allowed to give preference to family members over others --- Remember on assigns and exam Do not assume any facts Barney – employee Labour Studies 3C03 February 27 , 2013 - Rights of Labour Act – Act 2 – Trade unions – fundamental principle of common law and what unions are about  contradiction of restraint of trade – trade unions deemed illegal conspiracies in restraint of trade - Protecting trade unions from being chastised by the courts is unlawful conspiracies in restraint of trade - Section 3 – acts done by two or more members – not actionable  can bring a civil action against 2 or more members of a trade union - if you do something not actionable individually they can bring a civil suit – protected with more than one person - Section 3.2 – “a trade union shall not be made a party to any action in any court unless it may be so made a party irrespective of this Act or the Labour Relations Act” – trade unions cannot sue or be sued – UNLESS irrespective of the Act or of the Labour Relations Act - 3.3 You cannot sue because a collective bargaining agreement has been broken – you have to file grievance and if not solved with grievance then arbitration - 3.4  prevents members and union from being sued – go through the labour board - Long standing history from courts attacking trade unions – this is why this act was created - Sometimes in the past people could have been arrested for being in a trade union - Indictable offence – with juries - Master and Servant Act – act before the employment standards act - PC1003 – Wartime Emergency Measures Act 1944 – becomes the model for current labour relations act - Key features of PC1003 that remain today – Mandatory recognition (compulsory bargaining) – compulsory conciliation – and compulsory grievance and arbitration procedure - Compulsory bargaining  procedure to be followed for a union to become certified – if you successfully follow the procedure the employer is forced to recognize the union and recognize all employers within the union – can’t discriminate people supporting the trade union - Compulsory conciliation  meet with a conciliator –cooling off period before you can engage in industrial warfare – need to go through conciliation before you can strike or lock out – limits when you can strike or lock out – if your strike before the conciliation there’s unfair labour practices - Compulsory Grievance and Arbitration  grievance and arbitration without any interruptions (strikes, etc) - Ontario Labour Relations Act – labour law – have to be able to classify yourself as an employee – definition of employee: includes independent contractor – definition of employee under the OLRA is broader than the common law definition and the ESA definition - if you are an employee under the OLRA you might still be excluded - Non-application - 3. This Act does not apply, - (a) to a domestic employed in a private home; - (b) to a person employed in hunting or trapping; - (b.1) to an employee within the meaning of the Agricultural Employees Protection Act, 2002; - (c) to a person, other than an employee of a municipality or a person employed in silviculture, who is employed in horticulture by an employer whose primary business is agriculture or horticulture; - (d) to a member of a police force within the meaning of the Police Services Act; - (e) except as provided in Part IX of the Fire Protection and Prevention Act, 1997, to a person who is a firefighter within the meaning of subsection 41 (1) of that Act; - (f) to a member of a teachers’ bargaining unit established by Part X.1 of the Education Act, except as provided by that Part, or to a supervisory officer, a principal or a vice-principal; - (g) Repealed: 2006, c. 35, Sched. C, s. 57 (2). - (h) to an employee of a college of applied arts and technology; - (i) to a provincial judge; or - (j) to a person employed as a labour mediator or labour conciliator. 1995, c. 1, Sched. A, s. 3; 1997, c. 4, s. 83; 1997, c. 31, s. 151; 2002, c. 16, s. 20; 2006, c. 35, Sched. C, s. 57 (2). - Excluded because they have their own special collective bargaining acts - Agricultural Employees – where migrant workers can’t unionize because they are often employed in agriculture – covered under agriculture act - Managerial functions are excluded (employees in these positions) - Employees in confidential capacities in relation to labour relations – ex. HR – aren’t covered - Section 96 complaint – hearing before labour board - Inquiry, alleged contravention - 96. (1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act. 1995, c. 1, Sched. A, s. 96 (1). - Duties - (2) The labour relations officer shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of. 1995, c. 1, Sched. A, s. 96 (2). - Report - (3) The labour relations officer shall report the results of his or her inquiry and endeavours to the Board. 1995, c. 1, Sched. A, s. 96 (3). - 96.4 sets up powers of labour board to grant a remedy - Remedy for discrimination - (4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers’ organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers’ organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of, - (a) an order directing the employer, employers’ organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of; - (b) an order directing the employer, employers’ organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or - (c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers’ organization, trade union, council of trade unions, employee or other person jointly or severally. 1995, c. 1, Sched. A, s. 96 (4). - Usually remedy in a labour board act is reinstatement - Decision of the board is final and conclusive March 6, 2013 review Rights of labour act How trade unions were treated by courts Pc 1003 in 1994? Sign: those three key features are still core features of modern bargaining act OLRA who is employee? Dependent contractors are employees Excluded employees: mgrs, agri workers .. How to bring complaint under OLRA ..sec 96 96 (4) broad powers given to lr board In hearing who has standard of proof? Criminal standard of proof – have to prove beyond reasonable doubt Civil standard of proof – have to prove beyond the bounds of probability ie 50.001 vs 49.8% Bounds of prob: your allegatioin is slightly more likely than other side Who has the burden of proof – the party bringing the complaint, the lawsuit But 96(5) imp amendment: changed who has the burden of proof Barrie examiner case deals with 96(5) – sec 79 Back then P.179 First major case that dealt with new section 4 major pts 96.5 reverses burden of proof onto the employer 1. When employer got unfairly dismissed or work conditions altered becomes employers burden to prove otherwise 2. the reasons an employer may give for discharging an employee, refusing to hire, refusing to promote, altering work conditions, the board must find it to be the only reasons for the employers actions Ie employee got fired because he was union organizer..employer says no, was because he was always late. 3. those other reasons the employer gives must not be tainted with an anti union motive 4. employer must establish two of three..civil burden Employer must establish that there are other reasons for firing that aren’t against union In barrie examiner case, employee won complaint to board for unfair labour practice Employee was fired, brought to labour board, was successful Then got reinstated with lost wages, senority etc Powers of the board 96.5 Lougheed case p. 145 BC case that deals with reverse burden of proof 96.5 but different result in this case Onus was on employer to show otherwise and employer was successful 96.5 does not apply to every complaint made to board Burden of proof (5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to thisAct as to the person’s employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers’ organization did not act contrary to thisAct lies upon the employer or employers’organization. When an indiv has been discriminated against, didn’t get job, didn’t get promoted..due to unfair labour practice Other complaints that can be brought to board: trade unions – 96.5 does not apply!! Who brings complaint to l.board Union on behalf of individual employee, or indiv employee Reversal burden of proof p.145 lougheed scott was insubordinate, pissed off at employer Board was on the fence..coulnd decide whether he got axed becau
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