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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Voting time: Employers’ obligations on election day

May 31, 2018

An Ontario provincial election has been called for June 7, 2018. Employers should be aware that, under the Ontario Election Act, they must provide employees time off to serve or to vote at the election. Serving at election All employees acting as returning officers or who have been appointed by a returning officer to be poll officials are entitled to an unpaid leave of absence to perform their election duties. A leave shall be granted where an employer is provided with at least seven days notice of the employee’s intention to take a leave. An employer shall not dismiss or…

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May 29, 2018 – ALPA & Westjet Agree to Settlement Process

May 29, 2018

TOP STORY Settlement Process Reached Between WestJet Pilots and WestJet   DECISIONS Grievance – Meal Allowance – Canadian Union of Public Employees, Air Canada Component v Air Canada Rouge, 2018 CanLII 44930 Grievance regarding failure to pay meal allowance during mandatory training periods – Review of collective agreement language clearly connected meal allowance to duty on flights, not non-flight duty – Dismissed Preliminary Objection – Unjust Dismissal – Hogan and Air Spray (1967) Ltd., Re, 2018 CarswellNat 2154 Pilot complaint for unjust dismissal – Employer contended pilot was laid off and that lay-off was due to 25% reduction in provincial…

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May 24, 2018 – More Labour Turbulence as UNIFOR Votes for Strike Action at Flair

May 24, 2018

TOP STORY Members at Flair Airlines Have Spoken   DECISIONS Judicial Review – Regulations – Canadian Union of Public Employees v. Canada (Attorney General), 2018 FC 518 CUPE challenge of new Regulations stating how many flight attendants are required on passenger airplanes in proportion to passenger seats – CUPE alleged that Regulations were contrary to basic norms of procedural fairness and breached CUPE’s legitimate expectation to be meaningfully consulted – CUPE had the opportunity to participate in focused consultations regarding the challenged regulations and its input was acknowledged – No duty of procedural fairness owed by the Governor in Council…

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May 18, 2018 – WestJet Pilots Vote to Strike

May 18, 2018

TOP STORY WestJet Pilots Vote to Strike if Negotiations Break Down   DECISIONS Grievance – Pre/post-flight time – Syndicat canadien de la fonction publique, section locale 4041 v transat A.T. inc., 2018 CanLII 41770 Flight Directors grieved failure to pay 30 minute premium for duties performed as per collective agreement – Employer split premium into two parts of 15 minutes – Grievance turned on meaning of “flight” and other terms contained in agreement – Grievance allowed Appeal – Compensation Exclusions – Lukács v. Canada (Canadian Transportation Agency), 2018 FCA 92 Appeal of exclusions for eligibility for compensation if bumped from…

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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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