Home|Conferences & Workshops|35th Annual Labour Arbitration and Policy Conference - Calgary


35th Annual Labour Arbitration and Policy Conference

June 8 - 9, 2017
The Westin Calgary


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Sponsored by: http://www.fieldlaw.com/http://neumanthompson.com/http://www.blairchahley.ca/
 

Thursday, June 8, 2017


Registration and Evening Cocktail Reception
(hot and cold hors d'oeuvres will be served)
5:00 PM - 7:00 PM  


Evening Plenary


Brave New Grounds: Should social condition, genetic characteristics, weight and political belief be added to human rights legislation as grounds of discrimination?

7:00 PM - 9:00 PM

Panelists

Robert Philp
Chief of the Commission
Alberta Human Rights Commission
Heather Jensen
Union Counsel
Plaxton Jensen
Joël Michaud
Employer Counsel
Field Law
Patrick Nugent
Union Counsel
Nugent Law Office
Jean Torrens
Employer Counsel
MLT Aikins

Panel Summary

The Alberta Human Rights Act currently prohibits discrimination in employment based on any one or more of 16 protected grounds. Should more be added to ensure the Act adequately protects and promotes equality and dignity in employment? Do recent social and technological changes necessitate the addition of grounds? In this session, experts will debate these issues. Attendees will have an opportunity to share their opinions with colleagues and to vote on whether or not new grounds should be protected under human rights legislation. Potential new grounds of prohibited discrimination to be debated include:

  • Social condition: The International Labour Organization's Committee of Experts has repeatedly urged Canada to ensure that its human rights legislation prohibits discrimination on the basis of "social condition." Should Alberta take up the call?
  • Genetic characteristics: Parliament has amended the Canadian Human Rights Act to prohibit discrimination on the ground of "genetic characteristics" to respond to the proliferation of knowledge about genetic markers of disease and the number of genetic tests now available. Should Alberta follow suit?
  • Weight or size: Various courts and tribunals have held that discrimination on the basis of obesity may be caught by human rights provisions prohibiting discrimination on the basis of disability (which includes perceived disability), but is this approach inadequate? Does it make sense to require people who are not disabled to rely on statutory provisions aimed at protecting disabled people? Does it protect individuals who are discriminated against because an employer prefers their employees to look a certain way in order to attract certain customers or clients?
  • Political opinion or belief: Should Alberta join the provinces and territories that prohibit discrimination on the basis of political belief? If it did, would there be any instances in which holding, or not holding, certain political beliefs could constitute a bona fide occupational requirement? For example, would unions be able to recruit only applicants who demonstrate a commitment to social democratic values?

FIELD LAW SPONSORED ANNUAL KICK-OFF RECEPTION

9:00 PM

Friday, June 9, 2017


Breakfast 7:30 AM - 8:15 AM  
Introductory remarks by Co-Chairs 8:15 AM - 8:30 AM  


Plenary 1


Shifting Values, Shifting Laws: Major legislative and caselaw update

8:30 AM - 9:40 AM

Panelists

Vicki Giles
Employer Counsel
McLennan Ross
David Harrigan
Director of Labour Relations
United Nurses of Alberta
Craig Neuman
Employer Counsel
Neuman Thompson
Kara O'Halloran
Union Counsel
Chivers Carpenter

Panel Summary

Since sweeping to power in May 2015, Alberta’s NDP government has made a host of significant amendments to legislation affecting bargaining. Most recently, on May 24, 2017, the government introduced the Fair and Family-Friendly Workplaces Act, which proposes a number of major changes to the Employment Standards Code and the Labour Relations Code, including the reintroduction of card-check certification of unions. The past few months have also seen the release of ground-breaking decisions from the Supreme Court of Canada on freedom of association and significant developments in remedial trends, including the level of damages being awarded by arbitrators, courts, and tribunals for injury to dignity resulting from harassment/discrimination. In this session, seasoned counsel will review these important cases and legislative developments and flag significant litigation and legislative reform on the horizon.

BREAK (with refreshments)

9:40 AM - 10:00 AM

Friday, June 9, 2017


Breakfast 7:30 AM - 8:15 AM  
Introductory remarks by Co-Chairs 8:15 AM - 8:30 AM  


Plenary 2


Combating Sexual Harassment: Engaging bystanders, training investigators, supporting survivors, and more

10:00 AM - 11:10 AM

Panelists

Janine Benedet
Associate Dean, Academic Affairs & Professor and Co-Director, Centre for Feminist Legal Studies
University of British Columbia
Rear-Admiral Jennifer Bennett
Director General
Canadian Armed Forces Strategic Response Team on Sexual Misconduct
Janice Rubin
Employment Lawyer and Workplace Investigator
Rubin Thomlinson

Panel Summary

Recent high profile events, such as the RCMP's historic apology and compensation to female officers, have raised societal consciousness about the pervasiveness of sexual harassment in employment. Has there been a change in the culture? What institutional barriers hinder the proper functioning of workplace harassment policies and the timely investigation of harassment complaints? This panel will address critical issues in investigating, responding to, and combating workplace sexual harassment, including:

  • For the purposes of this discussion, what do we mean by sexual harassment? Is sexual harassment more prevalent in certain sectors? Are certain workers more likely to be targeted? What role do myths and stereotypes play in sexual harassment? What is the impact of sexual harassment on an individual?
  • Why do people who experience sexual harassment in the workplace often not report? Why is it common for people to witness sexual harassment in the workplace but not say anything or report it? What are the challenges involved in investigating institutional behaviour? What are the challenges involved in implementing changes within an organization or institution, including cultural change? How can you address trust and confidence in the investigation, support and response processes?
  • What measures should organizations implement to combat workplace sexual harassment? How can organizations address key challenges? How do we facilitate and encourage reporting sexual harassment in the workplace? Is there a difference between reporting and disclosure? What training should be provided to employees on intervening when they witness incidents of sexual harassment? What are best practices for investigating sexual harassment?

CONCURRENT MORNING SESSIONS

11:20 AM

NETWORKING LUNCH

12:30 PM - 1:50 PM

*Choose two concurrent sessions when you register for the conference

Concurrent Sessions (am & pm) - Friday, June 9, 2017


Confronting Racism, Promoting Inclusion: Contemporary strategies for combating racialization and achieving reconciliation


Panelists

Janice Ashcroft
Senior Legal Counsel
Alberta Human Rights Commission
Donna Ross
Designer of Professional Learning, Calgary Regional Consortium
Alberta Regional Professional Development Consortia
Heather Hettiarachchi
Employer Counsel
Integritas Workplace Law
Naveen Mehta
General Counsel & Director, Human Rights, Equity, and Diversity
United Food and Commercial Workers Canada

Morning Sessions — 11:20 a.m. - 12:30 p.m.
Afternoon Sessions — 1:50 p.m. - 3:00 p.m.

Panel Summary

The fact that racialized Canadians continue to experience disproportionately high levels of unemployment and earn less income than non-racialized Canadians are just two of the many indicators that racial discrimination is a reality in Canada today. Indigenous peoples in Canada are also subject to unique forms of discrimination, although research suggests that non-indigenous Canadians strongly support reconciliation and actions to improve relations between indigenous peoples and other Canadians. In this session, a panel of experts will discuss the subtle ways in which racial discrimination occurs in workplaces, and explore proactive steps that organizations can take to combat individual and systemic discrimination. Panelists will also discuss the historical abuses and current discrimination that indigenous peoples face, and the measures that workplace parties can take to help achieve reconciliation. Issues to be addressed include:

  • Given that "race" is a social construct, what does it mean to say that human rights legislation prohibits discrimination/harassment on the basis of "race"? What does the term "racialization" signify?
  • What part does/should Canada's legacy of institutional racism (e.g. residential schools and racist immigration policies) play in current discussions about racial discrimination and reconciliation in the employment context?
  • How does racial discrimination/harassment manifest itself in workplaces? What are some of the subtle forms of exclusion and differential treatment racialized workers/job applicants experience?
  • How does discrimination on the basis of "race" intersect with or relate to discrimination on the basis of ethnic origin, ancestry, place of origin, creed, and/or religion? How does/can racial discrimination intersect with other prohibited grounds that have a less direct relationship with "race," such as gender, disability, age, and sexual orientation?
  • What are employers' obligations and the union's role when racial discrimination/harassment results from comments/actions by customers or clients?
  • What proactive steps should workplace parties take to ensure they are not engaging in, condoning, or allowing racial discrimination or harassment to occur? Should numerical data be collected? What policies/practices/decision-making processes should be reviewed for adverse impact on racialized individuals/groups? What measures should workplace parties take to ensure they are not engaging in racial profiling?
  • What employment-related recommendations were made in the final report of the Truth and Reconciliation Commission of Canada? How should the under-representation of indigenous peoples in employment be addressed?
  • What types of training and educational programs (e.g. cultural competency, anti-bias, conflict resolution) should organizations implement to promote diversity, combat discrimination, and remove barriers to the full participation of members of racialized groups? Should organizations take a distinct approach to anti-racism measures for indigenous peoples?

 

Fitness for Work: Ensuring a safe work environment in an era of marijuana, opioids, and other drugs


Panelists

Dr. Charl Els
Associate Clinical Professor, Department of Psychiatry and The John Dossetor Health Ethics Centre
University of Alberta
Maurice Dransfeld
Employer Counsel
McLennan Ross
Michelle Westgeest
Union Counsel
Chivers Carpenter

Morning Sessions — 11:20 a.m. - 12:30 p.m.
Afternoon Sessions — 1:50 p.m. - 3:00 p.m.

Panel Summary

The increasing prevalence of medical marijuana and prescription drugs across Canada, in conjunction with the impending legalization of recreational marijuana use, makes it crucial for employers and unions to understand the implications of marijuana, opioids and other drugs in the workplace. Employers, unions and employees all share a common interest in maintaining a safe work environment while still respecting privacy and human rights. In this session, medical and legal experts will offer their thoughts on a range of issues relating to this topic, including disclosure requirements, impairment testing, accommodative measures and workplace policies.

  • Common misperceptions: What are some of the common misperceptions surrounding the use of medical marijuana and prescription drugs? Does the medicinal use of marijuana and other drugs necessarily result in impairment at work? What else can cause impairment in the workplace? Fatigue? Chronic pain?
  • Disclosure: In what circumstances, if any, are employees required to disclose their use of medical marijuana and prescription drugs? Can employees be required to disclose recreational use of marijuana or other drugs?
  • Impairment testing: What tests are available for employers to measure actual current impairment in the workplace? What advantages does competency-based testing have over traditional drug testing? What possible privacy and/or human rights concerns are raised by impairment testing in the workplace?
  • Balancing accommodation and safety obligations: Does medical marijuana authorization or a prescription for other drugs entitle an employee to be impaired at work? What type of medical information should be requested to determine whether an employee can safely and effectively perform his or her job? What are some best practices for managing safety risks when substance abuse is suspected?
  • Crafting workplace policies: What elements should be included in a workplace policy dealing with the use of medical marijuana and prescription drugs? What about recreational drug use? In what circumstances, if any, are zero-tolerance policies permissible? What best practices can employers and unions adopt in the workplace to confront negative stereotypes associated with medical marijuana, the use of prescription drugs or substance use disorders?

 

Prying Eyes: Privacy breaches at the workplace – and what to do about them


Panelists

Rachel Hayward
Director of Compliance and Special Investigations
Office of the Information and Privacy Commissioner of Alberta
Gordon Nekolaichuk
Employer Counsel
Miller Thomson
Dan Scott
Union Counsel
Seveny Scott

Morning Sessions — 11:20 a.m. - 12:30 p.m.
Afternoon Sessions — 1:50 p.m. - 3:00 p.m.

Panel Summary

In this panel, privacy experts will provide the legal information and practical know-how you need to prepare for, respond to, and avert situations in which an employee, without a legitimate work-related purpose, accesses the personal information of another employee or a third party that is in the custody or control of the employer, in violation of privacy rights. The following topics will be discussed:

  • Understanding potential liability for privacy breaches: What are the sources of privacy rights in Canada? What are the elements of the tort of intrusion upon seclusion, recognized for the first time by the Ontario Court of Appeal in Jones v. Tsige? With respect to the tort of public disclosure of private facts – recognized for the first time in a 2016 Ontario court decision – how is this established? What is the status of this tort since the decision recognizing it has been set aside? What has been the impact, to date, of these new torts on the scope of privacy rights in the workplace? Have the cases had any persuasive impact outside of Ontario? Where privacy legislation is applicable, can a common law action for breach of privacy be launched? In what circumstances, if any, will employers be held vicariously liable for an employee's unauthorized, intentional intrusion upon the privacy of another employee or third party? Are class actions for breach of privacy on the rise? Why or why not?
  • Responding to unwarranted privacy invasions: What steps should be taken by workplace parties to respond to instances of employees accessing or disclosing the personal information of other employees, clients, or customers without a valid work-related purpose? What internal or external reporting obligations may be triggered? When and how should such communications occur? What form of disciplinary action, if any, may be appropriate? Is more severe discipline warranted for intentional, versus unintentional, breaches of privacy? Will inappropriate disclosure or use of confidential information call for a different disciplinary response than mere access?
  • Preventing privacy breaches: What steps should employers and unions take to safeguard against privacy breaches by employees? What policies and procedures have proven effective in this regard? Will appropriate policies and procedures serve as an employer defence against being held vicariously liable for privacy breaches by employees? In light of the decision in Jones, are employers legally entitled to make use of monitoring software to prevent intentional breaches of privacy by employees? Is it advisable for employers to install monitoring systems for this purpose?

 

Accommodating Competing Interests: Striking a principled balance between human rights, seniority, and other collective agreement claims


Panelists

James Casey
Arbitrator/Mediator

Monica Bokenfohr
Legal Counsel
Alberta Health Services
Katrina Piechotta
Legal Counsel
United Food and Commercial Workers Canada Local 401

Morning Sessions — 11:20 a.m. - 12:30 p.m.
Afternoon Sessions — 1:50 p.m. - 3:00 p.m.

Panel Summary

Competing rights situations, in which one party's human rights claim conflicts with another party's legally protected rights, can present a complex challenge for employers and unions. For example, how should workplace parties address an employee's request for disability or family status accommodation that conflicts with another employee's seniority rights? This session will use real-life scenarios to explore the appropriate process for assessing, handling, and resolving competing rights claims, and provide an update on recent legal decisions in this area.

  • Legal principles and framework: What are the main legal principles that should be considered when competing rights situations arise in the workplace? What type of analysis or framework should be used to address competing rights claims? Does the Ontario Human Rights Commission's framework present a workable or helpful approach in practice? Should employers have a competing rights policy in place?
  • Human rights and fundamental freedoms: What steps should be taken if a worker expresses religious beliefs or requests a religious accommodation that appears to infringe upon the human rights of other employees, such as the right to be free from sex discrimination in the workplace, or the right to be free from unwelcome religious pressure?
  • Human rights and collective agreement entitlements: How should employers and unions address an employee's request for disability or family status accommodation that conflicts with another employee's rights under the collective agreement, such as seniority rights? In what circumstances will an accommodation measure that interferes with collective agreement rights be found to constitute undue hardship?
  • Competing accommodation requests: What steps should be taken by workplace parties in cases of conflict between accommodation requests from different employees?

 

Friday, June 9, 2017


Breakfast 7:30 AM - 8:15 AM  
Introductory remarks by Co-Chairs 8:15 AM - 8:30 AM  


Keynote


Sexual Harassment, PTSD and the RCMP: Is change possible?

1:15 PM - 1:45 PM

Keynote Speaker

Dr. Greg Passey
Trauma Psychiatrist


Topics

Dr. Greg Passey is a trauma psychiatrist whose practice includes treating female RCMP officers with PTSD as a result of experiencing sexual harassment in their workplaces. In this special presentation, Dr. Passey will explain why survivors of sexual harassment can develop PTSD, and how an employer's response can impact the severity and duration of their symptoms. He will also discuss why certain people participate in abusive behaviour, and comment on the systemic changes he feels are necessary to fix the problem in the RCMP.

Friday, June 9, 2017


Breakfast 7:30 AM - 8:15 AM  
Introductory remarks by Co-Chairs 8:15 AM - 8:30 AM  


Plenary 3


Mental Health Matters: Prescriptions for obtaining and protecting sensitive medical information

3:15 PM - 4:30 PM

Panelists

Dr. Cynthia Baxter
Forensic Psychiatrist
Baxter Forensic Group
Will Cascadden
Employer Counsel
McCarthy Tétrault
Ronni Nordal
Union Counsel
Nordal LeBlanc

Panel Summary

Information regarding an employee's mental health is often relevant to determining appropriate accommodation in the workplace, gaining access to sick leave or disability benefits, or explaining aberrant behaviour or misconduct. Obtaining and providing mental health information for these purposes, however, is a delicate process beset with difficulties. For example, psychology and psychiatry are based heavily on subjective judgments and examinations, leaving room for doubt regarding diagnoses and limitations. In this session, experienced labour lawyers, joined by a mental health expert, will provide guidance on overcoming practical difficulties and resolving complex legal disputes that arise when dealing with mental health information. Specific topics to be addressed include:

Appropriate inquiries:

  • In what situations must an employer make inquiries regarding an employee's mental health? When questioning an employee regarding his or her mental health, what constitutes appropriate questioning and how is such questioning to be distinguished from overly intrusive or discriminatory inquiries?
  • What type of workplace conduct might legally justify an employer request for medical information proving that an employee is fit for duty and/or does not pose a health and safety risk? Is self-harming behaviour or talk of suicide a workplace health and safety risk? Is it legitimate for other employees to be concerned for their own safety if a co-worker engages in such behaviour?

Appropriate mental health information:

  • For mental health disabilities, what personal health information may an employer legally request to facilitate accommodation? To excuse or mitigate misconduct? When, if ever, is an employer permitted to require an employee to submit to an independent psychiatric or psychological evaluation? Might such an evaluation aggravate certain types of psychiatric disabilities?
  • What expertise do different mental health professionals have (e.g. psychiatrists, psychologists, social workers, EAP counsellors) and what is their permitted scope of practice under Alberta legislation? How are the varying competencies and availability of different types of professionals relevant to obtaining and evaluating mental health information?
  • How can the "objectivity" and adequacy of mental health information be assessed, given that psychiatry and psychology are based on subjective judgments and examinations and rely on self-reporting?

Protection of privacy:

  • What must employers and unions do to protect the confidentiality of mental health information in their possession? Does the mere communication of the fact that an employee has a disability and certain limitations constitute sharing personal information that may engage privacy protections?
  • Does an employee seeking accommodation give up his or her privacy with respect to all mental health records if he or she must proceed to arbitration to obtain appropriate accommodation? What about employees relying on their mental condition to explain misconduct? What bearing do privacy statutes have on grievance arbitrations? Have recent arbitral awards shown a trend towards providing greater protection for employee privacy? What information does involvement in grievance arbitration entitle a party to access that would not otherwise be available?

CONFERENCE ENDS

4:30 PM

Keynote Speakers


Thursday, June 8, 2017


Taking Safety Seriously: Managing the risks of marijuana, opioids, and other drugs in the workplace

9:00 AM - 4:00 PM

Cheryl Yingst Bartel
Arbitrator/Mediator

Wayne Benedict
Union Counsel
McGown Cook
Dr. Charl Els
Associate Clinical Professor, Department of Psychiatry and The John Dossetor Health Ethics Centre
University of Alberta
April Kosten
Employer Counsel
Dentons

Workshop Summary

Recent news headlines highlight the prevalence of medicinal and recreational drug use in Canada. This trend, in conjunction with the impending legalization of recreational marijuana use, has prompted many workplace parties to re-examine their approach to medicinal and recreational drug use at work. In this workshop, medical and legal experts will discuss best practices for managing the safety risks of marijuana, opioids and other drugs in the workplace while still respecting employee privacy and human rights. Workshop speakers will lead a practical discussion and interactive exercises on a range of issues relating to this topic, including:

  • Demystifying medicinal drug use in the workplace: What are some of the common misperceptions surrounding the use of medical marijuana and prescription drugs in the workplace? Does the medicinal use of marijuana and other drugs necessarily result in impairment at work? What else can cause impairment in the workplace? Fatigue? Chronic pain?
  • Disclosure: In what circumstances, if any, are employees required to disclose their use of medical marijuana and prescription drugs to their employer? Can employees be required to disclose recreational use of marijuana or other drugs?
  • Drug use and the duty to accommodate: How does the duty to accommodate under Canadian human rights legislation apply in the context of an employee with medical marijuana authorization or a prescription for other drugs? Does medical marijuana authorization or a medical prescription entitle an employee to be impaired at work? What type of medical information should be requested to determine whether an employee can safely and effectively perform his or her job? How does the duty to accommodate apply to employees with suspected or confirmed substance use disorders? What are some best practices for managing safety risks when substance abuse is suspected?
  • Impairment testing: What tests are available for employers to measure actual current impairment in the workplace? What advantages does competency-based testing have over traditional drug testing? What possible privacy and/or human rights concerns are raised by impairment testing in the workplace?
  • Reviewing the law on traditional drug testing: What is the legal status of random drug testing in the wake of the Supreme Court's 2013 ruling in the Irving Pulp & Paper case? Has any random drug testing policy been found reasonable in Canada post-Irving? In what circumstances will for-cause or post-incident drug testing be permitted? When will testing be justified in a return-to-work situation?
  • Responding to test refusals and positive test results: What steps should be taken by the employer and union when an employee fails a for-cause, post-incident or random drug test? What about when an employee fails a competency-based test? What should be done if an employee refuses to submit to random, for-cause or post-incident drug testing, or to competency-based testing?
  • Drafting workplace policies: What elements should be included in a workplace policy dealing with the use of medical marijuana and prescription drugs? What about the use of recreational drugs? How should impairment-based testing or traditional drug testing be treated in workplace policies? In what circumstances, if any, are zero-tolerance policies permissible?


Thursday, June 8, 2017


Accommodating Episodic Disabilities: A guide to dealing with recurring health conditions

9:00 AM - 4:00 PM

Sue Praught
Senior Organizational Consultant, Absence and Disability
Sun Life Financial
Margaret Tebbutt
Senior Consultant, Workplace Initiatives
Canadian Mental Health Association
Paulette DeKelver
Union Counsel
Seveny Scott
Erin Ludwig
Legal Counsel
Alberta Health Services

Workshop Summary

Some of the most prevalent disabilities in Canada, including mental illness, arthritis, HIV, and some types of cancer, can be characterized as episodic disabilities, which are defined as disabilities involving periods of good health alternating with periods of illness or disability. The accommodation of employees with episodic disabilities presents special challenges, such as maintaining contact between employer and employee during prolonged absences and determining when it’s appropriate for an employee to work and when it’s appropriate for an employee to take time off. Attendees at this workshop will learn strategies for accommodating employees with episodic disabilities that comply with the requirements of human rights legislation.

Episodic disabilities generally:

  • What are the common characteristics of episodic disabilities? What challenges do episodic disabilities pose (for employees, unions and employers) that are different from those that arise in cases of non-recurring disabilities?
  • How do short-term and long-term disability insurance programs apply to employees who may have relatively short but frequent periods of disability?
  • Do employers and/or unions have a duty to help employees to access benefits that may assist them? If so, what is the scope of that duty?

Disclosing and recognizing disabilities:

  • When should an employee disclose that he or she has an episodic disability? Are employers legally permitted to ask job applicants if they have a disability?
  • When and how should employers (or union representatives) discuss the need for accommodation with employees who are at work and showing signs of an oncoming episode of disability? How can employers make such inquiries and encourage a reticent employee (or an employee who lacks insight into his or her condition) to accept accommodation and treatment without exposing themselves to a claim of discrimination?
  • What medical information must an employee with an episodic disability disclose if he or she requires accommodation? What about for absences or entitlement to insurance benefits? Must the medical information provided for absences contain the same level of detail for each absence, even after the existence of the episodic disability is established?

Accommodation and attendance management:

  • What accommodations are employees with episodic disabilities likely to need (e.g. flex time, working from home, etc.)? What are the best practices to adopt in accommodating employees with episodic disabilities?
  • Do employees with episodic disabilities have a duty to engage in treatment that minimizes periods of disability? Who decides what treatment is reasonable?
  • Can employers count absences due to an episodic disability in an attendance management plan?
  • What should employers do to maintain communication with employees absent from work for an episode of disability? What type(s) of communication should employers avoid? What information is required before an employee can return to work?
  • Do unions breach their duty of fair representation if they do not maintain adequate communication with members regarding their fitness to work, possible accommodations and return to work?
  • How might an employee's disability, particularly a mental disability, affect an employee's ability to maintain communication or otherwise participate in the accommodation process and must employers and unions take such effects into account?
  • In what circumstances have adjudicators found an employer has reached the point of undue hardship in accommodating an employee with an episodic disability? What role does the unpredictability of the absences play in the undue hardship analysis?


Thursday, June 8, 2017


Conducting Fair and Effective Disciplinary Investigations: A hands-on workshop

9:00 AM - 4:00 PM

Jason Copping
Principal
Copping Consulting
Crystal Norbeck
Union Counsel
Gerrand Rath Johnson
Mike Vos
Employer Counsel
Mathews, Dinsdale & Clark

Workshop Summary

Workplace investigations, whether they are investigations into complaints of harassment or into employee misconduct, require fair and impartial investigators and procedures. In this workshop, Lancaster's experts will guide you through the steps of conducting fair and comprehensive investigations, addressing issues such as searches, confidentiality protections, union representation, and the release of the investigative report. Issues to be addressed include the following:

The legal framework:

  • What legislation and seminal arbitration decisions establish the ground rules for workplace investigations? How does the answer differ depending on whether the investigation is a disciplinary investigation or an investigation into allegations of harassment, discrimination or violence?
  • What triggers an employer's duty to investigate misconduct? In what circumstances, if any, can an employer respond to misconduct (including harassment or violence) without conducting an investigation?

Investigation essentials:

  • What are the essential qualities or qualifications of an investigator? When should an external investigator be retained? In cases of workplace violence and harassment, can employees effectively veto an employer's choice of investigator?
  • What is the extent of an employee's duty to cooperate with his or her employer's investigation? Does an employee under investigation for misconduct have a "right to silence"? What if the employee is also the subject of a criminal investigation?
  • What measures and procedures should be put in place to protect complainants, witnesses and employees subject to investigation against reprisal or harassment during an investigation?
  • What types of electronic searches, such as cell phone record searches and e-mail searches, can be conducted as part of the investigation? When can employers use video surveillance as part of their investigations?
  • Do employees being interviewed during an investigation have a right to union representation? If so, what is the proper scope of that representation?
  • Does an employer have an obligation to investigate whether disability played a role in an employee's misconduct prior to imposing discipline?

Investigation reports:

  • Who is entitled to the investigation report, investigator's notes and other documents relied upon in the investigation? Who is entitled to access complaints and witness statements? Are complaints and witness statements privileged so that they cannot be used as evidence against the authors?
  • What role, if any, do investigator recommendations play in determining an appropriate response to misconduct? Can the employer ignore these recommendations? Modify them?
  • In what circumstances will arbitrators order investigation reports disclosed at arbitration? How far will such disclosure orders go? Will they include the investigator's notes?


Thursday, June 8, 2017


Negotiating Essential Services Agreements: Case studies from experienced negotiators

9:00 AM - 4:00 PM

Mark Asbell
Arbitrator/Mediator/Adjudicator
Asbell Dispute Resolutions Inc.
Gwen Gray
Essential Services Commissioner
Alberta Labour Relations Board
Mark Dittenhoffer
Director, Employee Relations Branch
Ontario Treasury Board Secretariat
Twila Marston
Supervisor, Local Services, Ontario Public Service & Equity Unit
Ontario Public Service Employees Union

Workshop Summary

Unions and employers in Alberta's broader public sector currently face the prospect of negotiating essential services agreements for the first time. This workshop is designed to provide Alberta unions and employers with access to the experience workplace parties have gained negotiating essential services agreements in Ontario, where such agreements have long been a feature of collective bargaining. Seasoned negotiators from both sides of the table will review examples of successful and unsuccessful essential services negotiations, pointing out the key features of each, and identifying strategies for increasing the odds of successfully concluding an essential services agreement. Issues to be addressed include:

  • Is the task of identifying "essential services" primarily a legal one or a practical one? That is, should parties be more concerned with legal justification of their positions, or with presenting evidence that shows how their decisions preserve public health and safety?
  • When should parties negotiate an essential services agreement (e.g. before the collective agreement expires, when negotiations for a collective agreement reach an impasse, etc.)? Should the same people be responsible for negotiating both the essential services agreement and the collective agreement?
  • Is there a preferred process to follow? For example, does it matter who makes the first proposal? Should the first proposal concentrate only on reaching a "framework agreement"? If so, what should be in a framework agreement?
  • How can parties make the most effective use of the umpire they choose?
  • How careful should parties be in negotiating their first essential services agreements? Will they later be bound by decisions regarding which services are essential and what level of services are essential?
  • What factors are relevant to determining the type, scope, and level of services that are essential? What type of information or studies might be necessary to determine the nature and level of essential services necessary to prevent a risk to public safety? Should unions and employers jointly undertake to obtain such information/conduct such studies?
  • How can parties negotiate an essential services agreement that effectively takes into account the fact that some non-essential services may become essential if they are not provided for an extended period of time? In the words of the Alberta legislation, how do parties take into account "foreseeable changes to the essential services that need to be maintained during a strike or lockout"?
  • How should parties determine how essential services should be provided? How should they gauge the degree to which non-bargaining unit members can meet the need for an essential service?
  • What are the most frequently-encountered obstacles to successfully concluding an essential services agreement? What strategies can parties use to overcome these obstacles?
  • Are there any essential services agreements in Alberta now or in recent history that parties might use as a precedent?


CPD


Click here to find out more information regarding CPD and the hour requirements in your province.

Conference Sessions

  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD Approval.
  • CPD for Members of the Law Society of Upper Canada: 8.75 Substantive Hours; 0 Professionalism Hours.
  • This program has been approved by the Law Society of British Columbia for 8.75 Continuing Professional Development hours.

Workshops

  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD Approval.
  • CPD for Members of the Law Society of Upper Canada: 5.5 Substantive Hours; 0 Professionalism Hours.
  • This program has been approved by the Law Society of British Columbia for 5.5 Continuing Professional Development hours.