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The Latest Word on Last Chance Agreements: How to draft them, when to use them, and whether arbitrators will enforce them

Thursday, July 26, 2018, 12:30 pm - 2:00 pm EDT



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Moderators


Douglas Ruck

Arbitrator/Mediator


Speakers


Tina-Marie Bradford

Legal Counsel
British Columbia Government and Service Employees' Union (BCGEU)
Jamie Eddy

Employer Counsel
Cox & Palmer
Dr. Charl Els

Psychiatrist; Clinical Professor, Department of Psychiatry, University of Alberta


Issues

Last chance agreements (LCAs) are often used when an employee has been, or is about to be discharged for reasons related to attendance or a substance use disorder. While arbitrators are reluctant to interfere with freely negotiated resolutions between workplace parties, they recognize that the terms of an LCA and any adverse action taken based on it must comply with the duty to accommodate under human rights legislation. In this session, seasoned labour lawyers and a medical expert will explore when LCAs may be appropriate, what terms may be included, and the circumstances in which LCAs will be set aside. Issues to be addressed include:

  • In what circumstances are LCAs appropriate?
  • Can/should LCAs deal with both culpable and non-culpable conduct?
  • What provisions are usually included in an LCA? How can/should the terms be individualized to address an employee's specific needs?
  • In cases involving substance use disorders, what terms should be included in an LCA? Are conditions requiring an employee to abstain from alcohol or drug use appropriate or helpful? Is it discriminatory not to allow for relapses? Is random drug/alcohol testing permitted? Is a requirement to undergo psychological assessment or an independent medical examination discriminatory? Can/should LCAs require an employee to undergo rehabilitation treatment? If so, what treatment options should be considered? What type of aftercare may be appropriate?
  • Are employers entitled to medical updates or other information about counseling or treatment?
  • Can/should an LCA require an employee to substantiate any absence with a doctor's note?
  • Can an LCA impose a requirement not imposed on other employees, such as requiring that the employee's attendance equal or surpass the departmental average?
  • Is it permissible for an LCA to limit an arbitrator's jurisdiction to determining whether its terms have been violated, and preclude the arbitrator from determining whether the employer has met its duty to accommodate?
  • How much weight is given to an LCA at arbitration?
  • In what circumstances will LCAs be upheld as consistent with the employer's duty to accommodate to the point of undue hardship, and when will they be found unenforceable? Will an LCA ever be set aside if it includes a term that the employer has reached the point of undue hardship?
  • Does post-termination evidence of rehabilitation carry significant weight at arbitration? When is such evidence admissible?
  • If an employee in a safety-sensitive position breaches an LCA, must the employer consider accommodation in a non-safety sensitive position?
  • If an employer imposes an LCA and it subsequently becomes aware that the employee has a disability, is the LCA enforceable?
  • In what circumstances will arbitrators impose LCAs as a condition of reinstatement?

Additional Information

MATERIALS
Valuable, up-to-date materials and case summaries will be available for downloading from our website. Each audio conference is accompanied by a PDF of concise summaries of the cases discussed.

AUDIO FILES
Audio conference MP3 files are available for $255. Those who have purchased the live audio conference may purchase the corresponding downloadable audio MP3 file for the discounted price of $155.

The recorded MP3 file and materials are available for download one business day after the live audio conference. After purchasing, you will receive an e-mail with instructions on how to access and download the audio conference MP3 file and materials by visiting My Account and selecting Order History. For audio file purchases for upcoming audio conferences, once the MP3 file is available through our site, registrants will receive an update e-mail informing them that the links are now ready.

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