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The articles listed below are intended to provide readers with general information. They should not be regarded or relied upon as legal advice or opinion.

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May 8, 2018 – Pilot’s Age Discrimination Claim Dismissed

May 11, 2018

TOP STORY Bagherinia v. Wal-Mart Canada Corp, 2018 HRTO 502 Human Rights – Age Discrimination – Commercial pilot applied for position flying corporate jet – When not awarded position, filed Human Rights complaint on the basis of age discrimination – Decision who to hire was based upon immediate ability to fly (i.e. no delay to obtain licensing etc.) – Dismissed   DECISIONS Judicial Review – Certification – Garda Security Screening Inc. v. General Teamsters, Local Union 979, 2018 FCA 71 Garda sought review of decision certifying Teamsters as bargaining unit for Check Point Managers and Quality Leads at YWG – Employees…

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Ontario government announces that public holiday pay calculations will change (again) effective July 1, 2018

May 8, 2018

Employers who have been grappling with the new public holiday pay formula introduced earlier this year through Bill 148, the Fair Workplaces, Better Jobs Act, 2017, may be relieved to know that the government has announced that it will be reverting to the old formula, at least temporarily. On May 7, 2018, the government filed a Regulation under the Employment Standards Act, 2000 (“ESA”) (Ontario Regulation 375/18), which will take effect on July 1, 2018. Under that Regulation, an employee’s public holiday pay will be equal to the total amount of the regular wages earned and vacation pay payable to…

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Ontario arbitrator finds employees entitled to short-term and long-term disability plans under collective agreement not entitled to Personal Emergency Leave

May 4, 2018

Focus readers will recall that recent changes to Personal Emergency Leave (PEL) under the Employment Standards Act (ESA) have given all employees two paid and eight unpaid PEL days. These changes have left many employers that provide additional paid leave (such as sick, bereavement, and other leaves) questioning whether they must now also provide the PEL under the ESA. A recent arbitral decision sheds some light on this issue. An arbitrator ruled that employees covered by a collective agreement that provides both short-term and long-term disability benefits are not entitled to an additional two paid PEL days under the ESA….

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April 27, 2018 – Court Upholds Manager Finding: S.240 Complaint Dismissed

April 27, 2018

TOP STORY Cicale v. Swiss International Air Lines Ltd., 2018 FC 389 Judicial Review – Constructive Dismissal – Adjudicator concluded applicant was a “manager” therefore not covered under CLC – Finding of adjudicator was reasonable – Not the place for Court to question credibility and documentary findings only examine reasonableness of outcome – Application dismissed (Lower Decision: Cicale and Swiss International Air Lines Ltd., Re, 2017 CarswellNat 1428) DECISIONS Motion – Amended Response – The Commissioner of Competition v. Vancouver Airport Authority, 2018 CACT 9 YVR motion to file Amended Response – Will not create delay – Allowed …

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Arbitrator upholds termination for sexual harassment but rejects “zero-tolerance” approach

April 20, 2018

A recent arbitration decision upheld the termination of an employee for violating the Employer’s workplace violence and harassment policy. In Re Metro Rideau Store v. UNIFOR Local 414 (March 2018), Arbitrator Baxter found that on a balance of probabilities the terminated employee had sexually harassed a female co-worker, and that the Company’s decision to terminate the employment was not excessive. The employee at the time of termination was 61 years old, with eight years service and no prior disciplinary record. The Employer in this case was successfully represented by Emond Harnden’s own J.D. Sharp. The facts giving rise to the…

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April 17, 2018 – Employee on “auto-pilot” Wins Unjust Dismissal Notice

April 18, 2018

TOP STORY Roy and Northern New Brunswick Airport Inc., Re, (Canada Adjudication) Application – Unjust Dismissal – Employee drove baggage tug while under orders not to drive any motorized vehicle during the temporary suspension of his driver’s license – Employee could not provide explanation and was terminated – Employee claimed unjust dismissal under Canada Labour Code – No application of progressive discipline, dismissal disproportionate – Reinstatement not recommended in light of employee’s disobedience, insubordination and lack of candor and honesty with Employer and during hearing – Claim for punitive damages denied – Employee awarded 10 months wages as compensation, 2…

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April 10, 2018 – Weed and the Workplace

April 10, 2018

TOP STORY Weed and the Workplace   DECISIONS Passenger Complaint – Delayed Baggage – Wajsfeld c. Air Canada, 2018 QCCQ 1386 Passenger claim of $5,333.65 for delayed baggage and failure to respond by airline – Airline offered $200 in compensation after baggage was delivered – Claimant could not produce proper receipt showing damages – Dismissed with costs Application – Certification – United Food and Commercial Workers International Union, Local 175 v. CLS Catering Services Ltd., 2018 CanLII 27857 Representation vote ordered – Bargaining unit comprised of: all employees working as Customer Service Representatives of CLS Catering Services Ltd., at Lester…

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April 4, 2018 – Harassment in the air

TOP STORY Air Canada flight staff graded on appearance, sexually harassed by management, union alleges DECISIONS Application – Appointment of arbitrator – Overberg v Aerospace, 2018 ONSC 1720 Application to appoint sole arbitrator in dispute pursuant to Commercial Agent Agreement – Sole arbitrator originally agreed to by parties – Respondent later sought to appoint different arbitrator – Respondent argued no finalized Arbitration Agreement with chosen arbitrator – Respondent had repeatedly communicated its agreement to the chosen arbitrator – Allowed, sole arbitrator appointed Complaint – Jurisdiction Issue – Kufuor-Boakye and WestJet Operations Corp. (Federal Mediation and Conciliation Service), Re, 2018…

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Equal pay for equal work regardless of employment status provisions of Bill 148 coming into effect on April 1, 2018

March 29, 2018

The Employment Standards Act (ESA) currently prohibits employers from paying employees different rates of pay based on sex if they perform equal work. Effective April 1, 2018, there will be new provisions added to the ESA that will extend this equal pay requirement to employees whose employment status is different but who nevertheless perform substantially the same kind of work. A difference in employment status refers to a difference in the number of hours regularly worked (e.g., full-time vs. part-time) or a difference in the term of employment (e.g., permanent vs. temporary, casual or seasonal). This new equal pay requirement…

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March 27, 2018 – Medical Use of Marijuana Triggers Duty to Accommodate Ramp Employee

March 28, 2018

TOP STORY Airport Terminal Services Canadian Company v Unifor, Local 2002, 2018 CanLII 14518 Grievance – Termination – Ramp agent tested positive for marijuana after incident – Grievor refused specific conditions offered for continued employment under the Corporate Drug and Alcohol Policy – Employee’s marijuana use was medical, not recreational – No evidence of impairment – Post-incident drug testing was found to be reasonable despite flawed process – Employer knowledge of medical use of marijuana by employee triggered duty to accommodate – Grievor reinstated   DECISIONS Appeal – Bankruptcy – Syndic d’Aviation Flycie inc., 2018 QCCA 423 original decision: Syndic…

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Employer removes working from home – Court rules constructive dismissal

March 26, 2018

In Hagholm v. Coreio Inc. (December 2017), the Ontario Superior Court of Justice found that an employee’s ability to work from home was an essential term of her employment, such that when the Employer unilaterally took away this right, the employee was constructively dismissed. The Court awarded 20.5 months salary in lieu of notice. Ms. Hagholm was 59 years old and had worked for the Employer for 22 years (although she had also previously worked for the same employer before resigning for a period of time). Because Ms. Hagholm lived in the Waterloo Region, and the Employer’s office were located…

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March 20, 2018 – Time for More Oversight?

March 20, 2018

TOP STORY Airlines in Canada ‘on the precipice of something bad,’ say critics   DECISIONS Judicial Review – Security Clearance – Dhesi v. Canada (Attorney General), 2018 FC 283 Station Attendant at YVR denied security clearance due to associations with gangs and guns – Applicant given sufficient information on concerns and time to respond – Minister’s decision was reasonable and within the acceptable outcomes – Dismissed   CANADIAN TRANSPORTATION AGENCY DECISIONS Application – 161768 Canada Inc. c.o.b. as Decair – Determination No. A-2018-51 For cancellation of Licence Nos. 000085 and 000086 Application – Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines), on behalf of itself and Lufthansa CityLine GmbH – Determination…

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Bill 203 – Proposed new employee rights to information about compensation in the workplace

March 15, 2018

The Ontario government introduced Bill 203, the Pay Transparency Act, 2018 (the Act) on March 6, 2018. If passed, the Act will come into effect on January 1, 2019 and will establish requirements relating to the disclosure of information about compensation (salaries and benefits) of employees and potential employees. In particular, the proposed legislation will: ban employers from seeking information about previous compensation from a job applicant, whether personally or through an agent. A job applicant may voluntarily disclose such information to an employer; require employers to include information about the expected compensation or range of expected compensation on publicly…

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March 13, 2018 – TC Urged to Mandate Drug and Alcohol Testing and Accommodation for Pilots

March 13, 2018

TOP STORY Addressing substance abuse in the aftermath of tragedy   DECISIONS Judicial Review – Security Clearance – Byfield v. Canada (Attorney General), 2018 FC 216 Review of decision to deny security clearance to baggage handler based on previous criminal acts and associations – Applicant was given sufficient opportunity to respond to the Minister regarding questionable activities on Law Enforcement Records Check – Minister’s decision was within the realm of reasonable outcomes – Dismissed CIRB DECISIONS Bargaining Unit Certification – COPE – Canadian Helicopters Limited dba Canadian Helicopters Offshore, Order No.: 11231-U all Aircraft Maintenance Engineers and Apprentices working…

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March 6, 2018 – PSAC Union Decertified at Swissport’s YVR Location

March 6, 2018

TOP STORY Swissport Canada Fuel Services Inc., Order No.: 11230-U Revocation – Bargaining Unit – PSAC – all supervisors and administration employees of Swissport Canada Fuel Services Inc., working at the Vancouver International Airport, excluding the Payroll and Benefits Administrator, Facilities/Environmental Manager, Safety/Training Manager, Maintenance Manager, Operations Manager and Manager of Fuel Services – Certification revoked   DECISIONS Grievance – Lead Flight Attendant Pay Rate – Canadian Union of Public Employees, Air Canada Component v Air Canada Rouge, 2018 CanLII 7698 Whether Lead Flight Attendant (LFA) pay to be paid when Flight Attendant (FA) unable to work a scheduled flight…

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