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Labour Arbitration and Policy Conference

 
 
 
 

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Wednesday, November 20, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 1


Labour Arbitration Flashpoints: Update on current caselaw and legislation

9:10 AM - 10:30 AM

Panelists

Carmela Allevato
Union Counsel
Allevato Quail & Roy
Chris Buchanan
Union Counsel
Hastings Labour Law
Donald Jordan
Employer Counsel
Harris & Company
Andrea Zwack
Employer Counsel
Gall Grant Legge Zwack

Panel Summary

Experienced counsel will review the year's most important cases and legislative developments, including the revisions to the Labour Relations Code and the Employment Standards Act, and the latest word on family status accommodation. Final selection of topics will take place a few weeks before the conference, ensuring coverage of the year's latest and most important developments.

BREAK (with refreshments)

10:30 AM - 10:45 AM

Wednesday, November 20, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 2


Hush Money or Sound Labour Relations? Confidentiality after #MeToo and other contentious settlement issues

10:45 AM - 12:00 PM

Panelists

Arvin Asadi
Senior Legal Counsel, Legal Services and Strategic Labour Relations
Health Employers Association of BC
Jessica Derynck
Legal Counsel
Health Sciences Association of British Columbia
Lisa Southern
Arbitrator/Mediator/Workplace Investigator


Panel Summary

Parties settle grievances for a variety of reasons unrelated to liability or wrongdoing, reaching a compromise in order to avoid the expense and uncertainty of litigation. However, settlements have recently come under the spotlight, with the #MeToo movement charging that confidentiality provisions enable sexual harassers to continue their behaviour unchecked, while the inquest examining murders committed by nurse Elizabeth Wettlaufer raised concerns about the role that grievance settlements played in allowing her to continue working with vulnerable patients. In this session, seasoned counsel will provide insight into how they navigate some of the contentious issues that arise in grievance settlements, addressing issues such as the following:

  • Confidentiality and non-disclosure clauses: Are there certain types of conduct that raise concerns about the inclusion of a confidentiality provision in a settlement or release? What remedies have been awarded in cases in which one of the parties is found to be in violation of the confidentiality agreement? What factors do arbitrators consider when awarding remedies for breach of confidentiality provisions in settlements?
  • Substituting resignation for dismissal: What factors should parties consider in determining whether to characterize a dismissal for cause as a resignation as part of a settlement? Following the Elizabeth Wettlaufer inquiry, are employers more reluctant to agree to characterize a termination as a resignation as part of a settlement agreement? Are unions increasingly hesitant to request this as part of a settlement? How can unions balance their role as advocates for their members against concerns that settlements could endanger vulnerable members of the public, such as students or patients?
  • Providing references: Do employers who refuse to provide reference letters as part of a settlement open themselves to claims of violation of their duty of good faith and fair dealing? Can parties agree to restrict the information that would be provided in a reference letter? How should an employer respond if it is asked for additional information beyond what is set out in the reference letter or agreed upon by the parties?
  • Upholding settlements: Is a settlement always binding? What are some common grounds for overturning a settlement agreement (i.e. unconscionability, contracting out of human rights legislation, failing to meet minimum statutory entitlements, etc.)? What steps should unions take to protect against duty of fair representation complaints?

NETWORKING LUNCH

12:00 PM - 1:00 PM

Wednesday, November 20, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 3


Disability and Misconduct: Proving the connection

1:00 PM - 2:15 PM

Panelists

Richard Coleman
Arbitrator/Mediator

Cathy Knapp
Arbitrator/Mediator

TBA
Speaker TBA


Panel Summary

Medical evidence is crucial to the outcome of disciplinary grievances in cases in which a worker alleges that a disability caused or contributed to misconduct. However, caselaw shows that arbitrators, judges, and even medical experts can look at the same facts yet still disagree when asked whether a causal connection exists in a particular case. Working through a scenario drawn from real decisions, seasoned union and employer counsel will argue their "case" with the help of their respective medical experts, and leading arbitrators will explain how they assess the evidence to determine whether misconduct is linked to a disability.

BREAK (with refreshments)

2:15 PM - 2:30 PM

Wednesday, November 20, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 4


Off the Clock, On the Line: Discipline for off-duty conduct

2:30 PM - 3:45 PM

Panelists

Jodie Gauthier
Union Counsel
Koskie Glavin Gordon
Amanda Rogers
Arbitrator/Mediator

Marino Sveinson
Employer Counsel
Pulver Crawford Munroe

Panel Summary

The ubiquity of smartphones, widespread use of social media, and proliferation of various sorts of digital footprints is eroding the divide between employees' work and their personal lives. Employees' private activities can become public — intentionally or unintentionally — when video recording of those activities is posted online. Texts, e-mails, and social media posts may be shared with or without the consent of the employees who wrote them and end up in public forums or on a manager's desk. Off-duty conduct that crosses from the private into the public sphere in this way can adversely affect an employer's reputation and interfere in the functioning of the workplace, especially where discriminatory or harassing conduct is involved. In this session, experienced labour lawyers will explain how recent arbitral caselaw deals with off-duty conduct that adversely affects the employer, addressing the following questions:

  • What level of connection between an employee's off-duty conduct and an employer's legitimate interests is required in order to establish just cause for discipline? Do arbitrators require objective proof of harm to the employer's reputation or to the orderly functioning of the workplace? Does it matter whether the employee intended the conduct in question to be private or public?
  • In what circumstances, if any, can an employer justify a rule that will limit employees' freedom while off-duty? For example, will arbitrators and courts uphold discipline based on policies that require abstinence from cannabis during off-duty hours or for prolonged periods before an employee has to report to work?
  • Are employers allowed to discipline employees for private off-duty statements that come to their attention — through forwarded e-mails or recorded conversations, for example — or are employers limited to disciplining employees for public statements? How should an employer respond if an employee complains about a co-worker's conduct during after-hours union meetings or digital communications between off-duty bargaining unit members?
  • Is employees' off-duty public criticism of their employer always grounds for discipline? What if the criticism takes the form of a description of unsatisfactory working conditions? What if an employee makes a complaint about employer practices in the capacity of a concerned citizen, not as an employee?
  • Can an employer dismiss an employee for off-duty public expression of unpopular or distasteful political views on the basis that public association of those views with the employer would harm the employer's reputation? What if other employees refuse to work with the employee who has engaged in such activity? What if the distasteful views expressed off-duty are based on an employee's religious beliefs?
  • Where an employer becomes aware of certain opprobrious off-duty conduct, such as domestic violence, sexual harassment, or racial harassment, will the employer's desire to dissociate itself from the misconduct justify dismissal? What if there is relatively little risk to the employer's reputation because the conduct in issue has not been made public?
  • What factors do arbitrators take into account when determining the appropriate level of discipline for off-duty conduct?

CONFERENCE ENDS

3:45 PM

Keynote Speakers


Monday, November 18, 2019


Breakfast 8:00 AM - 9:00 AM  

Difficult Bargaining: Identifying and overcoming obstacles to agreement

9:00 AM - 4:00 PM

Workshop Leaders

Carmen Hamilton
Strategic Negotiations Lead
Health Employers Association of British Columbia
Trevor Sones
Mediator
British Columbia Labour Relations Board
Richard Tones
Staff Representative
BC Government and Service Employees' Union

Workshop Summary

Finding the common ground that makes negotiation of a collective agreement possible can be a difficult process at the best of times. However, when external factors such as funding cuts and government-imposed mandates seriously limit the options available to unions and employers, a normally difficult process can become nearly impossible. Is there a way to make the process easier, or to prevent parties from becoming so entrenched in their own positions — and their own views of the other side — that agreement is impossible?

In this interactive full-day workshop, experienced negotiators from both sides of the table will provide guidance on effectively using interest-based and other approaches to bargaining.

Participants will learn to:

  • Use more productive strategies when engaged in positional bargaining;
  • Identify situations in which interest-based bargaining can be used effectively;
  • Communicate effectively to identify needs and interests underlying demands;
  • Generate creative options to solve tough problems; and
  • Build and preserve productive union-management relationships through bargaining.

VIEW THE WORKSHOP AGENDA



Thursday, November 21, 2019


Breakfast 8:00 AM - 9:00 AM  

Arbitration Advocacy: A masterclass on fundamental skills and expedited procedures

9:00 AM - 4:00 PM

Workshop Leaders

Jessica Gregory
Arbitrator/Mediator

Wayne Moore
Arbitrator/Mediator

TBA 
Workshop Speakers TBA


Workshop Summary

Whether you are new to arbitration or a seasoned pro, you will benefit from the expert guidance and feedback offered in this workshop. During this full-day interactive session, experienced arbitrators and union and management counsel will provide practical advice on effective arbitration advocacy and give feedback to participants as they practise their advocacy skills by working through simulation exercises.

Workshop leaders will also explain how you can adjust your advocacy strategies and techniques to win expedited arbitrations conducted according to the new rules in section 104 of the Labour Relations Code.

Participants will practise the following skills:

  • Identifying the key issues, strengths, and weaknesses of a case
  • Making persuasive opening and closing statements
  • Preparing, examining, and cross-examining witnesses
  • Effectively gathering and presenting evidence and caselaw
  • Adapting arguments and use of evidence for arbitrations conducted according to the Labour Relations Code's new rules for expedited arbitration

VIEW THE WORKSHOP AGENDA



CPD


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