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Labour Arbitration and Policy Conference

 
 
 
 

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Wednesday, December 4, 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 to be announced

Panel Summary

In this session, seasoned advocates will review the year's most important cases and legislative developments, including recent developments relating to harassment, the latest privacy decisions, and the significant changes introduced by Premier Doug Ford's government. Final selection of topics will take place in the weeks leading up to the conference, ensuring coverage of the latest and most important developments.

BREAK (with refreshments)

10:30 AM - 10:45 AM

Wednesday, December 4, 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 to be announced

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, December 4, 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 to be announced

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, December 4, 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 to be announced

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, December 2, 2019


Breakfast 8:00 AM - 9:00 AM  

Difficult Bargaining: Identifying and overcoming obstacles to agreement

9:00 AM - 4:00 PM

* Workshop leaders to be announced

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, December 5, 2019


Breakfast 8:00 AM - 9:00 AM  

Mending Fences: Restoring the workplace after a harassment investigation

9:00 AM - 4:00 PM

* Workshop leaders to be announced

Workshop Summary

In the #MeToo era, employers and unions have become familiar with the duty to investigate allegations of workplace harassment. But what happens once the investigation is complete? Harassment investigations often have unintended negative effects within the workplace: they can damage relationships, lower productivity, exacerbate underlying conflicts, and jeopardize psychological health and safety. Workplace parties have consequently become increasingly aware of the need to address restoration following a harassment investigation. In this interactive workshop, participants will explore the role of restoration in responding to workplace harassment, with a focus on the following:

  • How restoration benefits the workplace;
  • When restoration is appropriate;
  • How employers, unions, and employees can prepare for a restoration process;
  • The different types of interventions used in restoration; and
  • The ways in which workplace parties can support and contribute to restorative efforts in their workplaces.

VIEW THE WORKSHOP AGENDA



Thursday, December 5, 2019


Breakfast 8:00 AM - 9:00 AM  

Family Support from Hiring to Retiring: Applying leave and accommodation policies throughout the career cycle

9:00 AM - 4:00 PM

* Workshop leaders to be announced

Workshop Summary

At various points throughout their careers, many employees will seek leave or accommodation to fulfill their family obligations. As more Canadian workers find themselves in the "sandwich generation," squeezed between caring for their children and caring for their elderly parents, employers and unions will increasingly face accommodation requests from employees in need of family support. In this interactive workshop, experienced labour relations practitioners will explore leave and accommodation in the context of family-related milestones and responsibilities, including pregnancy, childcare, and eldercare. Participants will gain the knowledge necessary to:

  • Understand when the duty to accommodate arises in relation to employees with family obligations;
  • Recognize and avoid workplace discrimination against employees on the basis of pregnancy or family status;
  • Ensure fair treatment of employees returning to work from pregnancy or parental leave;
  • Distinguish between the roles and responsibilities of the employer, union, and employee in family status accommodation; and
  • Craft effective workplace policies that address family-related leave and accommodation.

VIEW THE WORKSHOP AGENDA



CPD


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