Labour Arbitration Bias

Posted by Johannes Schenk on January 18th, 2006 — Posted in Labour Law

The labour and administrative law landscape in Alberta is a little different from many of the other provinces, certainly BC. The use of three member arbitration panels (as opposed to one person), the judicial review route (no labour board sraight to a judge), the determination of standards of review (no Administrative Tribunals Act and on a case by case basis), are but some of the differences that result in Judge made law on very interesting substantive and procedural legal issues.

John Gescher, a very excellent and experienced lawyer from Calgary, brought this case to my attention: Waiward Steel Fabricators Ltd. v. IABSRI (Shopmen’s Local Union No. 805), 2005 ABQB 269 (CanLII).

The case involves the eligibility of a union nominee to sit on an three member arbitration panel where that person was employed by a parent union not party to the collective agreement. The Court reviewed the bias provisions of section 139 of the Alberta Labour Relations Code and held that in addition to the express bias criteria stated in the Act, disqualification would also be based on a reasonable apprehension of bias:

[14] Bethany and Foothills, (supra) both recognize the practice of partiality in appointing nominees to an arbitration panel, but have drawn the line where a nominee is not intellectually objectively impartial. The award framed the issue in this fashion:

The issue is whether there remains an overriding requirement for independence of a nominee to an arbitration board award (page 9).

[15] The award then went on to hold at page 13:

The Court of Appeal in Bethany and Foothills were wrong to import concepts of reasonable apprehension of bias on a lack of independence to nominees in labour arbitration proceedings.

[16] With respect I disagree that the courts have imported the concept of apprehension of bias into labour arbitration proceedings. The concept of a fair hearing has long been a part of administrative law and continues to be so. The concept of a fair hearing includes the concept of of an apprehension of bias. It would be very difficult to set legislative parameters on what constitutes a reasonable apprehension of bias as there are many forms of such. The determination of a reasonable apprehension of bias is best left to the tribunals and courts to determine based on facts presented.

[17] The award in this matter held that the only basis for disqualification are the two reasons set out in s.139 of the Labour Relations Code.

[18] Under the circumstances I must respectfully disagree for in my view disqualification can arise from a bias grounded in, for example, a lack of objective impartiality. In my view the law is well settled in this area and since the nominee Mr. Mike Clarke was an employee of the parent union even though the parent union was not a party to the collective agreement in question, it is my view that a reasonable person apprised of all the circumstances would have a reasonable apprehension of a biased assessment relating to the issue before the arbitration panel.

The underlying award was quashed and sent back to a new panel for re-hearing.

The case is a useful reminder of the principles underlying bias in administrative law proceedings. Very simply, if it looks like someone shouldn’t be making a decision in a matter due to their involvement in the matter or another related matter, they probably shouldn’t be making that decision.

New York City Monitoring Diabetics

Posted by Johannes Schenk on January 11th, 2006 — Posted in Human Rights Law, Municipal Law

Wow. According to the Washington Post, New York City health labs will be required to report blood sugar test results to the city health department. The results will be monitored for the purpose of tracking the disease and patients and physicians will be prodded when sugar levels look too high. Wow.

I suppose you could say that the City is taking the bull by the horns and dealing with a health issue that is prevalent and often poorly managed. It is, however, just this side of Orwellian and makes me think of Patrick McGoohan (number 6) evading big white balls in the village.

The privacy implications for this kind of monitoring are staggering and highlight the importance of the evolving state of Canadian privacy law.

Sikh Religion and Hard Hats

Posted by Johannes Schenk on January 11th, 2006 — Posted in Employment Law, Human Rights Law, Labour Law

The matter of hard hats and Sikh workers appeared to be settled by the Bhinder case. Of course plenty has changed on the human rights front since 1985 and the reasoning used in that case.

The hard hat issue has arisen again on several fronts that you might take note of:

West Coast Longshore

CP Rail

The outcome of these two matters will no doubt be of interest to a number of industries that employ membes of the Sikh faith.

Injunctions and Employment Non-Competition Agreements

Posted by Johannes Schenk on January 9th, 2006 — Posted in Employment Law

Hair today gone tommorrow. I couldn’t resist.

Raymond Salons Ltd. v. Janmohamed, 2005 BCSC 1809, concerns a hair dresser who starts up a salon business contrary to the language of a non-competition agreement signed with the former employer.

The non-competition clause stated that the employee should not compete with the employer within a 2 mile radius of the employer’s business for a one year period after the employee resigned.

The employee resigned and opened a hair salon 1.8 miles away from the employer’s business.

The Court denied the employer’s injunction application: the harm inflicted on the employer by the employee’s activity was minimal compared to the harm that would occur to the employee on granting the injunction.

Remember when obtaining an injunction on non-competition covenants: don’t quantify your damages, do show some form of significant harm, don’t ask for the injunction just for the sake of making a point, make sure that the restrictive covenant is geographically and temporally reasonable, and don’t prevent someone from earning a livelihood.

Accommodation and Seniority Rights

Posted by Johannes Schenk on January 8th, 2006 — Posted in Employment Law, Human Rights Law, Labour Law

The issue of union co-operation in an employer’s accommodation of a disabled employee arises time and again. In BC Rail and IWA Canada, Local 1-424 (Lepage Arbitration), [2004] B.C.C.A.A.A. No. 206, this issue is examined in the context of a disabled junior employee and bumping by more senior employees. Do the senior employees get to bump the junior disabled employee, according to the collective agreement, where that position is the only accomodation for that junior employee? Did the employer fail to accommodate the junior disabled employee where the union insisted that the senior employees bump into that position?

Arbitrator Hope took the position that the union and the senior employees had to co-operate with the employer to the point of undue hardship to accommodate the disabled employee:

¶ 40 When the Railway was confronted with an assertion that it could not remove the Grievor’s position from the displacement list process, it was left without a position in which to place him. Its explanation with respect to the unavailability of positions suitable for modification were challenged but not countered by the Union. No position was identified into which the Grievor could have been placed. The availability of positions outside the IWA component of the bargaining unit was addressed by the Railway and its responses supported the conclusion that no position could have been made available. Similarly, the tasks the Union saw as having potential to create a position were also addressed by the Railway and its explanation was consistent with its assertion that no assignment of tasks could be made without a significant compromise of its budgetary and work scheduling requirements.

¶ 50 Absent from the evidence were facts which would support a conclusion that the Railway failed to pursue all opportunities available to meet the needs of the Grievor within the terms contemplated in the authorities. The conclusion invited by the facts is that the refusal of the Union to acknowledge an obligation to cooperate in the fashioning of a position that fell outside the displacement provisions of the collective agreement inhibited the Railway’s ability to accommodate the Grievor.

¶ 51 I note in that regard that neither the facts nor the issues raised invite a finding with respect to whether cooperation by the Union would have resulted in an accommodation of the Grievor. However, the failure to cooperate is a factor to be weighed in the Railway’s favour in its assertion that it had pursued the accommodation of the Grievor’s disability to the point of undue hardship. The measure of inflexibility inherent in the Union’s position restricted the choices available to the Railway.

The union’s insistence that the position at issue remain subject to the collective agreement bumping provisions put the employer in the position of being able to say that it had exhausted its accommodation efforts to the point of undue hardship.