Professional Misconduct

Posted by Johannes Schenk on September 28th, 2005 — Posted in Employment Law

Stuart v. British Columbia College of Teachers, 2005 BCSC 645, outlines an approach to challenging and defending the decision of a professional regulatory body to sanction one of its members for professional misconduct or conduct unbecoming.

In this case the sanctioned member had engaged in conduct at the work place that can only be described as erratic and completely inappropriate to the role of teacher. In reading the case it becomes apparent that there was an underlying mental health issue. The regulatory body held that the member’s mental health was irrelevant and failed to consider it as a possible defence or mitigating factor.

The following analysis is made on judicial review:

  • The standard of review to be applied to a finding of professional misconduct is reasonableness simpliciter.
  • The standard of review to be applied to a question of law is correctness: the determination that mental health status was irrelevant was a question of law.
  • The question of professional misconduct should be treated as a strict liability offence and not an absolute liability offence.
  • On the basis of treating the professional misconduct as a strict liability offence the Court did not find it necessary to consider Human Rights and Charter arguments.
  • The conclusion that mental health status was irrelevant was an error in law.
  • The Court, by agreement of counsel, went on to consider the merits of the matter and found that the teacher was incompetent rather than sanction him for professional misconduct.

    European Court of Human Rights

    Posted by Johannes Schenk on September 27th, 2005 — Posted in Human Rights Law

    I came across this site: European Court of Human Rights

    Take a look. They deal with some very interesting issues that our system would never see.

    Arbitrators: Concurrent or Exclusive Jurisdiction on Human Rights Complaints

    Posted by Johannes Schenk on September 25th, 2005 — Posted in Human Rights Law, Labour Law, Municipal Law

    A human rights issue arises in a unionized workplace. The parties find themselves in front of an arbitrator and at the same time papers are, or have been, filed with a corresponding human rights body. Alternatively, relief is sought in front of the human rights body, the arbitrator having been altogether bypassed. For strategic reasons, employers, employees and unions all have their own positions on the “right” way and place to decide these cases. But really what is the right route, and is this something that can be harnessed to meet the strategic needs presented by these disparate groups?

    The case of competing statutory regimes is not new and frequently arises between collective agreement arbitration and human rights tribunals. Where do you go to have that human rights matter decided: arbitrator or human rights statute? You would have thought that between Weber and Parry Sound and the long body of caselaw decided in that interval there would no longer be an issue. The fact of the matter is that this tension is alive and litigating human rights matters by “piece” is still a risk faced by employers and a possibility open to employees.

    A fascinating example of this dilemma is presented by two recent Alberta cases, ATU (Local No. 583) v. Calgary (City of), 2005 ABQB 228 and Calgary Health Region v. Alberta (Human Rights and Citizenship Commission), 2005 ABQB 384. In Calgary Health Region, Justice Erb finds that the arbitrator had an exclusive jurisdiction to rule on a dismissal based on a discrimination complaint and in, City of Calgary, Justice Hart finds that the arbitrator does not have exclusive jurisdiction to hear the human rights complaint.

    While the cases are factually different it is not open to explain these divergent outcomes on that basis. The difference appears to rest on two different approaches to fundamental legal issues. The resolution of these two cases by the Alberta Court of Appeal will hopefully shed light on the “right” way and place to hear these matters.

    Holiday Pay

    Posted by Johannes Schenk on September 24th, 2005 — Posted in Employment Law

    The issue of holiday pay entitlement is a constant source of arbitral dispute. Entitlement cases usually fall into two categories: cases that concern qualification criteria and cases centered on the employment relationship post qualification.

    The qualification cases generally examine whether the employee met the statutory and collective agreement requirements leading to holiday pay entitlement. The employment relationship cases arise where an employee is on layoff or is absent from the workplace for some other reason.

    The case law seems to suggest that some form of subsisting employment relationship is required to support a claim for holiday pay. Often, employee’s on layoff are entitled to holiday pay. Arbitrator’s generally will extend the concept of “employment relationship” before denying an employee a collective agreement benefit. Having said that, just how far does “employment relationship” go and when does an employee become a former employee for the purpose of denying entitlement? For instance, should an employee who has qualified for holiday pay receive that benefit if they retire before the holiday in question?

    What’s your take on holiday pay? I invite your comment.

    Accommodating Employees and Seniority

    Posted by Johannes Schenk on September 22nd, 2005 — Posted in Human Rights Law, Labour Law

    Accommodation of employees can be difficult to implement without contravening collective agreement seniority provisions. Employers face difficult decisions when planning a course of action to assist an emloyee without offending the collective agreement terms.

    In Canada Post Corp. v. Canadian Union of Postal Workers (Kalinowski Grievance), [2005] C.L.A.D. No. 289, a letter carrier had a physical disability and, by agreement of the union, was allowed a preferential route pick over and above what his senority level would ordinarily allow. Arbitrator Ponak held that the where the disabled employee had a choice of more than one route within his medical capabilities that employee should be limited to choosing the route that causes the least disruption to senority provisions in the collective agreement.

    This case presents a simple set of facts applied to a complex area of law. It illustrates that care should always be taken to plan accommodations with a view to minimizing disruption to the contract that could make the employer liable for more than the accommodation. The principle also has application to unions who may attract liability for their part in arranging the accommodation.