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Human Rights and Labour Law Conference

Ottawa • October 21 - 22, 2020
Virtual Event


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In support of efforts to prevent the spread of COVID-19, Lancaster House is moving the 2020 Ottawa Human Rights and Labour Law Conference online.

 

Wednesday, October 21, 2020


Registration 9:00 AM - 9:15 AM  
Introductory remarks by Co-Chairs 9:15 AM - 9:30 AM  


Panel 1


The COVID-19 Pandemic: Lessons learned, ongoing concerns

9:30 AM - 10:40 AM

David Griffin
Negotiator
Professional Institute of the
Public Service of Canada

Anne Lemay
Employer Counsel
Gowling WLG
Dr. Doug Manuel
Senior Scientist, Clinical Epidemiology Program, Ottawa Hospital Research Institute; Professor, Department of Family Medicine, University of Ottawa

Andrew Montague-Reinholdt
Union Counsel
Nelligan O'Brien Payne LLP
Amanda Sarginson
Senior Legal Counsel
NAV CANADA

Panel Summary

The COVID-19 pandemic has presented workplace parties with an unprecedented challenge. Employers and unions have had to adapt rapidly. What important lessons can be learned from their responses so far? What needs to be done to meet the challenges created by evolving public health measures? In this session, experienced labour relations professionals and a public health expert will discuss these questions as well as the following:

  • From a labour relations perspective, what are the most important lessons that employers, unions, and regulators have taken away from the response to the COVID-19 pandemic so far?
  • Was workplace health and safety appropriately addressed by employers, regulators, and unions?
  • How have unions and employers handled the need to quickly change workplace policies and practices? Was it necessary to "reopen" collective agreements? In what circumstances have unions and employers worked together to address emerging challenges? In what situations have unions and employers been unable to collaborate on solutions to new problems?
  • What does the pandemic "end game" look like? Should employers and unions be preparing for second or even third waves of infection? Is this a once-in-a-lifetime event, or are future pandemics likely? How should employers, unions, and workers prepare for future developments?
  • What are the most difficult challenges as employers, unions, and workers attempt to return workplaces to something close to normal? What legal concerns loom large? How can an appropriate balance be struck between worker privacy and the need to ensure safe and healthy workplaces? Do certain policies and practices used to resume normal operations discriminate against employees on the basis of prohibited grounds of discrimination?
  • How has the "machinery" of labour relations, i.e. union-management meetings, grievance procedures, mediation, arbitration, and bargaining, been adapted to allow for physical distancing? Are virtual meetings, hearings, and negotiation here to stay? Can they reduce delays in the grievance and arbitration processes?

BREAK

10:40 AM - 11:00 AM

Wednesday, October 21, 2020


Registration 9:00 AM - 9:15 AM  
Introductory remarks by Co-Chairs 9:15 AM - 9:30 AM  


Panel 2


Restructuring, Layoff, Severance: Collective agreement flashpoints in times of economic stress

11:00 AM - 12:00 PM

Liam McCarthy
Negotiations Coordinator
Public Service Alliance
of Canada

Dan Palayew
Employer Counsel
Borden Ladner
Gervais LLP


Panel Summary

The COVID-19 pandemic has resulted in dramatic economic changes that will profoundly alter employment and labour relations. Though the current situation is unprecedented, previous periods of economic stress and uncertainty have resulted in significant increases in certain types of disputes, such as those related to restructuring, layoffs, and changes to benefits. In this session, experts will identify emerging areas of contention and provide guidance on resolving economically driven disputes at the bargaining table and in the grievance process. Specific issues to be addressed include the following:

  • How were layoffs due to pandemic mitigation measures handled? Were employers and unions able to strike deals that protected employees' rights while meeting employers' need to reduce expenditures? What grievances have emerged in response to cost-cutting measures instituted in response to the COVID-19 crisis?
  • How is the post-pandemic economy likely to affect employment in the public and private sectors? Is the private sector on track to return to "business as usual," or are temporary layoffs becoming permanent? In the broader public sector, will there be new demands for reduced staffing, contracting out, restructuring, reduced hours, and wage cutbacks as the federal and provincial governments respond to deficits and debts created by their COVID-19 responses?
  • In the broader public sector, are pressures for layoffs or restructuring likely to be driven by economic necessity or political expediency? From the perspective of union and management negotiators, does it matter whether the pressures are economic or political?
  • In negotiating or implementing layoffs, do employers and unions have a duty under human rights legislation to ensure that particularly vulnerable workers are not disproportionately affected? For example, if laying off workers by seniority disproportionately affects women or racialized workers, can the layoff be challenged on human rights grounds?
  • Where an employer is attempting to reduce the workforce through attrition, does encouraging older workers to retire constitute age discrimination?
  • What can employers and unions do to improve the psychological well-being of employees, given mounting concerns about job security?

LUNCH

12:00 PM - 1:15 PM

Wednesday, October 21, 2020


Registration 9:00 AM - 9:15 AM  
Introductory remarks by Co-Chairs 9:15 AM - 9:30 AM  


Panel 3


Best Practices for Workplace Investigations: Trauma-informed approaches and other forward-looking strategies

1:15 PM - 2:15 PM

Katherine Cotton
Lawyer and Workplace Investigator

Nihan Keser
National Manager, Human Rights, Employment Equity – Workplace Violence (Coordinator and Investigator)
Canada Post
Samantha Lamb
Union Counsel
Jewitt McLuckie & Associates LLP

Panel Summary

Following allegations of workplace misconduct, conducting a fair and effective investigation is vital. As a flawed investigation can result in irreparable harm and significant liability, it is essential for workplace parties to understand and fulfill their legal obligations and to implement strategies to minimize disruption and support employees who have been affected by trauma. In this session, experts will review recent workplace investigation caselaw, discuss best practices for workplace investigations, and explore the nature and effectiveness of trauma-informed approaches in this context.

  • What lessons can be drawn from recent cases about an employer's duty to investigate misconduct and the essential elements of fair, adequate, and effective investigations?
  • What are the legislative requirements for investigating complaints of workplace violence and harassment?
  • What is the role of the union in an investigation? When is an employee accused of misconduct entitled to union representation? Are other employees who are interviewed as part of an investigation entitled to union representation?
  • Who should conduct the investigation? When should an external investigator be retained? Do the answers to these questions change if the investigation concerns violence or harassment?
  • What are trauma-informed approaches, and why are they important in the context of workplace investigations? What are the key characteristics and benefits of trauma-informed investigations, and how do they ensure procedural fairness for individuals coping with trauma?
  • How does trauma affect memory? What challenges might an investigator encounter in assessing the credibility of a witness who has experienced trauma?
  • What considerations and techniques are important for trauma-informed interviewing?
  • What are some general best practices for interviewing witnesses? Can witnesses be guaranteed confidentiality? If not, what should be done to protect them against reprisal?
  • What is the extent of an employee's duty to cooperate with an employer's investigation?
  • How should workplace parties proceed if the employee under investigation or key witnesses take disability or sick leave while the investigation is ongoing? Should the investigation continue in their absence?
  • What steps can employers and unions take to minimize the disruptive effects of investigations on the workplace?

BREAK

2:15 PM - 2:30 PM

Wednesday, October 21, 2020


Registration 9:00 AM - 9:15 AM  
Introductory remarks by Co-Chairs 9:15 AM - 9:30 AM  


Panel 4


Post-Investigation Problems: Assessing discipline, dealing with stress leave, repairing relationships

2:30 PM - 3:30 PM

Roger Beaudry
Arbitrator/Mediator and
Dispute Prevention/Resolution Consultant


Christal Côté
Director / Senior Grievance & Arbitration Officer
Carleton University Academic Staff Association
Meg Steele
Senior Legal Counsel
City of Ottawa

Panel Summary

The investigation is over — what now? Deciding what to do after an investigation can be complex, and workplace parties often encounter challenges in handling the investigation report, assessing discipline, and repairing damaged relationships. In this session, experts will provide practical guidance on addressing the issues that arise in the wake of an investigation.

  • How and to whom should an employer communicate the results of an investigation? What are an employer's obligations to disclose or withhold the investigation report, witness statements, or other documents that form part of an investigation?
  • In what circumstances will adjudicators order that investigation reports be disclosed during litigation? Can an employer claim that an investigation report is subject to solicitor-client privilege if the investigation was conducted by a lawyer?
  • Can an employer rely solely on a third party's investigation report as the basis for discipline?
  • What factors should an employer consider in assessing discipline? How will an employee's honesty — or lack thereof — during an investigation affect discipline or reinstatement?
  • Before imposing discipline, is an employer obliged to investigate whether disability played a role in an employee's misconduct?
  • If the employee under investigation takes disability or sick leave but is then found to have committed misconduct, how should the employer proceed with the discipline process?
  • Is discipline always the best response to misconduct? What other actions can employers and unions take to address misconduct, especially if an investigation reveals systemic issues?
  • What measures should workplace parties take if an investigation finds that no misconduct has occurred?
  • What types of negative effects might an investigation have on the workplace, and what can employers and unions do to mitigate them?
  • What are examples of restorative processes or interventions that may help to repair workplace relationships following an investigation?

END OF DAY ONE

3:30 PM

Thursday, October 22, 2020


Registration 9:20 AM - 9:35 AM  
Introductory remarks by Co-Chairs 9:35 AM - 9:45 AM  


Panel 5


2020 Vision: Key precedents from an unprecedented year

9:45 AM - 10:45 AM

Denyse Boulet
Employer Counsel
Norton Rose Fulbright LLP
Sean McGee
Union Counsel
Raven, Cameron, Ballantyne &
Yazbeck LLP


Panel Summary

Although COVID-19 has dominated the headlines, 2020 has seen many other significant developments in human rights and labour law. In this session, an arbitrator and top advocates will review the most important cases and legislative enactments from the past year and flag key anticipated changes on the horizon. Final selection of topics will take place a few weeks before the conference, ensuring up-to-date coverage of the most consequential developments.

BREAK

10:45 AM - 11:00 AM

Thursday, October 22, 2020


Registration 9:20 AM - 9:35 AM  
Introductory remarks by Co-Chairs 9:35 AM - 9:45 AM  


Panel 6


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

11:00 AM - 12:00 PM

Ian Mackenzie
Arbitrator/Mediator

Nicole Butt
Legal Counsel
Ontario Nurses’ Association
Raquel Chisholm
Employer Counsel
Emond Harnden LLP

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. In this session, an experienced arbitrator and 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?
  • 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 (e.g. unconscionability, contracting out of human rights legislation, failing to meet minimum statutory entitlements)? What steps should unions take to protect against duty of fair representation complaints?

LUNCH

12:00 PM - 1:00 PM

Thursday, October 22, 2020


Registration 9:20 AM - 9:35 AM  
Introductory remarks by Co-Chairs 9:35 AM - 9:45 AM  


Panel 7


Brave New World: Remote work in the wake of COVID-19

1:00 PM - 2:00 PM

Amarkai Laryea
Acting Director, Representation
and Legal Services Branch

Public Service Alliance of Canada
Grace H. Skowronski
Legal Counsel
Canada Post

Panel Summary

While working from home was a growing trend before the COVID-19 pandemic, government directives ordering the closure of non-essential workplaces prompted many hesitant employers to make the leap in order to keep their businesses running. However, while some are enjoying the experience, it hasn't been smooth for everyone. Workplaces that were already prepared with remote work policies and technology faced difficulties scaling up off-site work to accommodate an unprecedented number of employees, while others had to adapt nearly overnight without any of this groundwork in place. What lessons emerge from "the world's largest work-from-home experiment"? Is remote work here to stay after the pandemic?

In this session, leading experts will discuss remote work in the wake of COVID-19, addressing issues such as the following:

  • What elements should be included in a remote work policy to address key employer, union, and employee concerns? How should the following be addressed: the type of work that may be done via telework; who is permitted to work from home; performance, productivity, and supervision; health and safety; costs, ownership, maintenance, and use of necessary equipment; termination of arrangements?
  • How should policies address concerns about the isolating effect of telework? What can be done to promote positive interaction with co-workers and supervisors, foster a sense of connection, and promote effective teamwork? What provisions should be made for union communication with individuals working from home?
  • What measures can employers put in place to supervise employees who work remotely? Can an employer require periodic check-ins with managers? Can an employer use surveillance measures such as cameras or screenshots? Monitor keystrokes? Use productivity or time-tracking software?
  • Are there any measures that workplace parties should consider to help employees manage competing obligations that may arise as a result of working from home? Should the "right to disconnect" be part of work-from-home policies? How flexible should schedules be? How should childcare or eldercare obligations be addressed?
  • Are there any precautions that parties should put in place to safeguard information? Can employees be required to download privacy software or productivity-monitoring programs if they are working on their personal or family devices?

BREAK

2:00 PM - 2:15 PM

Thursday, October 22, 2020


Registration 9:20 AM - 9:35 AM  
Introductory remarks by Co-Chairs 9:35 AM - 9:45 AM  


Panel 8


Difficult Accommodations: Responding to denial, defensiveness, and personality disorders

2:15 PM - 3:15 PM

Jenny Bolduc
Division Lead, Employee Wellness and Disability Management
Ottawa-Carleton District School Board
Marjorie Savoie
National Representative
Canadian Union of
Public Employees

Dr. Ken Suddaby
Psychiatrist
Mynkala Inc.

Panel Summary

Mental health disabilities can affect workers' judgment, ability to cooperate, and perceptions of others, all of which will likely interfere in the accommodation process. In this session, a mental health expert together with experienced labour lawyers will provide practical guidance in dealing with situations in which the employee in need of accommodation seems to be either unwilling or unable to participate in the accommodation process. Specific issues to be addressed include the following:

  • When faced with a "difficult employee," should employers adopt a supportive or rehabilitative approach? Must employers always inquire as to whether disruptive workplace behaviours are related to a mental disability before applying progressive discipline?
  • Can "difficult people" change if given a chance? Does the answer depend on whether the difficult behaviour is the result of a common mental health disability, a personality disorder, or simply a "bad attitude"?
  • Why might employees react defensively to suggestions that they may require accommodation due to a mental health disability? What, if anything, can be done to minimize the possibility of such a reaction? What course should be followed if an employee does not acknowledge a disability?
  • Do employers or unions dealing with workers in fragile emotional states have a duty to act with greater sensitivity than would normally be necessary?
  • Are employees with certain mental health disabilities more likely than others to behave in ways that disrupt the accommodation process? In what ways have adjudicators recognized that a mental illness may interfere with an employee's ability to fully meet obligations in the accommodation process?
  • What, if anything, can employers and unions do to overcome an employee's reluctance or refusal to cooperate in the accommodation process? What steps must employers take in order to fulfill the duty to accommodate? What steps must unions take to meet their duty of fair representation?
  • What should be done if it appears that, as a result of a mental health disability, employees are unable to make rational decisions in their own interest? Is there a role in the accommodation process for an employee's family members or for some other (non-union) representative or support person?
  • When will an employee's lack of cooperation or other "difficult behaviour" during the accommodation process bring the employer's duty to accommodate to an end?

CONFERENCE ENDS

3:15 PM

Keynote Speakers


Tuesday, October 20, 2020


Breakfast 8:00 AM - 9:00 AM  

Virtual Dispute Resolution: Practical guidance on using technology in grievance procedures, arbitrations, and negotiations

9:00 AM - 4:00 PM

Ian Anderson
Arbitrator/Mediator

Randy Slepchik
Union Counsel
Jewitt McLuckie &
Associates LLP

Carissa Tanzola
Employer Counsel
Filion Wakely Thorup Angeletti LLP

Workshop Summary

While videoconferencing technology has been widely available for years, many workplace parties didn't seriously consider it as an option until COVID-19 physical distancing measures forced the issue. As employers, unions, and adjudicators raced to adopt virtual negotiation and dispute resolution processes in order to keep the "machinery" of labour relations running smoothly, they've learned that there are important distinctions between remote and in-person proceedings.

In this interactive full-day workshop, an arbitrator and experienced advocates will provide guidance on how to effectively conduct virtual hearings, mediations, and negotiations.

Participants will gain the knowledge and skills necessary to:

  • understand the benefits and drawbacks of using videoconferencing technology for grievance meetings, negotiations, and hearings;
  • address concerns about assessing credibility remotely;
  • recognize potential privacy concerns and mitigate potential issues;
  • identify situations that would not be suitable for a virtual proceeding;
  • anticipate and address preliminary matters to promote a smooth and more efficient virtual hearing;
  • share information, file documents, and effectively present evidence;
  • organize and make use of virtual caucus meetings; and
  • adjust negotiation techniques to compensate for the lack of visual cues such as body language.


CPD


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