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Atlantic Canada Labour Law Conference

Halifax • May 11 - 13, 2021
Virtual Event


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Tuesday, May 11, 2021


Introductory remarks 1:00 PM - 1:05 PM  


Panel 1


Precedents to Remember from a Year to Forget: Major caselaw and legislative update

1:05 PM - 2:20 PM

Erin Delaney
Staff Relations Specialist
Government of Newfoundland and Labrador
Gordon Forsyth
Union Counsel
Pink Larkin
Michael Gillingham
Union Counsel
Martin Whalen Hennebury Stamp
Noella Martin
Employer Counsel
Wickwire Holm

Panel Summary

In this session, top advocates will review the year's most important cases and legislative developments of particular interest in Atlantic Canada, addressing issues such as current approaches to the assessment of disciplinary penalties, the evolving accommodation of medical cannabis use, and changes in attitude toward the enforceability of last-chance agreements. 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

2:20 PM - 2:35 PM

Tuesday, May 11, 2021


Introductory remarks 1:00 PM - 1:05 PM  


Panel 2


Key Issues in Settling Cases: Releases, confidentiality, non-disparagement, and other related issues

2:35 PM - 3:50 PM

Leah Kutcher
Legal Counsel
Nova Scotia Teachers Union
Raelene Lee
Associate General Counsel
Memorial University of Newfoundland
Melanie Petrunia
Tax Litigator
Nijhawan McMillan Petrunia

Panel Summary

When workplace parties agree to resolve a dispute that is headed for arbitration, it can be tempting to quickly draw up minutes of settlement and close the file. However, a settlement agreement that fails to consider key issues can create further litigation and animosity once parties realize they didn't get the deal they thought they had agreed on. In this session, leading experts will work through a scenario that explores some of the tips, traps, and tax implications that can arise when settling cases and will discuss strategies to overcome these obstacles, addressing issues such as the following:

  • What are some of the tax implications that parties should be aware of when they are structuring a payment? How can they maximize the settlement amount without incurring additional costs, including income tax and employment insurance repayment?
  • What types of claims or obligations should be included as releases in a settlement agreement? Are there terms that go too far?
  • What are some of the factors that parties should consider when determining the appropriate breadth of a confidentiality clause? What about non-disparagement clauses?
  • Are there any unique terms that parties should consider including in settlements of harassment, accommodation, selection, promotion, and layoff grievances?

Break

3:50 PM - 4:00 PM

Tuesday, May 11, 2021


Introductory remarks 1:00 PM - 1:05 PM  


Keynote Address


A Tale of Two Pandemics: The one we are in and the one to come

4:00 PM - 4:30 PM

Keynote Speaker

Dr. E. Kevin Kelloway
Canada Research Chair in Occupational Health Psychology, and Professor of Organizational Psychology, Saint Mary's University


Topic

In March 2020, the Occupational Health Psychology Data Centre began a two-year, federally funded project led by Kevin Kelloway that focuses on how organizations and employees are responding to the COVID-19 pandemic.

Drawing on studies conducted in the last year, Kevin will describe the far-reaching effects that COVID-19 has had on organizational life. The data also suggest a looming "echo-pandemic" that will be concentrated on mental health issues and will also have considerable impacts on organizations and their employees.

End of Day one

4:30 PM

Thursday, May 13, 2021




Panel 3


Labour Relations in a COVID-Affected World: Returning to work and adjusting to pandemic-induced changes

1:00 PM - 2:15 PM

Augustus Richardson
Arbitrator/Mediator

Jessica Bungay
Employer Counsel
Cox & Palmer LLP
Susan Coen
Legal and Legislative Representative
Canadian Union of Public Employees, Atlantic Region

Panel Summary

Atlantic Canada has fared better at keeping COVID-19 at bay than most other parts of Canada, but employers, unions, and workers have not been spared massive disruption. In the face of changing and conflicting public health guidelines and legislative responses, difficult decisions regarding appropriate workplace precautions have had to be made. Yet more challenges lie ahead. In this session, an arbitrator and prominent employer and union representatives will discuss the lessons learned, flag the challenges on the horizon, and identify essential legal and labour relations principles that workplace parties need to keep in mind.

  • Have employers and unions in Atlantic Canada generally been able to agree to workplace policies and procedures required to respond to changing public health restrictions? In cases in which employers and unions cannot reach an agreement, have employers been able to rely on management rights in order to respond to the pandemic?
  • How have adjudicators decided disputes regarding entitlement to paid and unpaid leaves during the pandemic? Have sick leave — or other paid leave — provisions been interpreted broadly enough to encourage employees with minor COVID-related symptoms, or those who have potentially been exposed, to stay home?
  • In what circumstances, if any, have adjudicators found that an employee was justified in invoking the work-refusal process to avoid exposure to COVID-19?
  • How have adjudicators decided what measures an employer is required to take as part of the obligation to take "every reasonable precaution" to ensure the health and safety of workers in the context of the pandemic? Do adjudicators require scientific certainty that specific protective measures or types of personal protective equipment are effective?
  • In the context of the pandemic, are adjudicators striking a different balance between employee and employer interests and obligations than they have previously? For example, are employer policies requiring COVID-19 testing being upheld? Will arbitrators apply jurisprudence regarding employer-mandated vaccination against the flu to employer policies requiring employees to be vaccinated against COVID-19?
  • What disputes, if any, have arisen regarding work-from-home arrangements? What disputes are likely to arise if work-from-home arrangements continue to be common? Is the scope of an employer's occupational health and safety obligations in such arrangements contentious? What about the balance between employee privacy and employer supervision?
  • Are virtual meetings, hearings, and bargaining here to stay as a means of reducing delays in the grievance, arbitration, and bargaining processes? Are there any lingering privacy concerns?

Break

2:15 PM - 2:30 PM

Thursday, May 13, 2021




Panel 4


Do's and Don'ts of Disciplinary Investigations: How to conduct them, what to avoid, how to deal with the difficult issues

2:30 PM - 3:45 PM

Krista Smith
Lawyer/Workplace Investigator/Mediator
Root & Branch Workplace Conflict Resolutions
David Mombourquette
General Counsel
Atlantic Canada Regional Council of Carpenters, Millwrights and Allied Workers
Jennifer Weston
Employer Counsel
Barteaux Labour & Employment Lawyers

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 while minimizing workplace disruption. In this session, experts will discuss best practices for disciplinary investigations and explore strategies for addressing common and emerging challenges.

  • 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? In what other ways do violence and harassment investigations differ from investigations into other types of misconduct?
  • What is the role of the union in an investigation? When are employees accused of misconduct or interviewed as part of an investigation entitled to union representation?
  • Who should conduct the investigation? When should an external investigator be retained?
  • How should workplace parties proceed if they encounter uncooperative witnesses or other difficult people during an investigation?
  • If an investigation results in a finding of misconduct, what factors should an employer consider in assessing discipline?
  • When might discipline be an ineffective or inappropriate response to misconduct? What other actions can employers and unions take to address misconduct, especially if an investigation reveals systemic issues?
  • What steps can employers and unions take to minimize the disruptive effects of investigations on the workplace?
  • What strategies can workplace parties implement to address the challenges associated with conducting investigations in a remote work environment?

CONFERENCE ENDS

3:45 PM

Keynote Speakers


CPD


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

Continuing Professional Development


Lancaster House CPD
  • Members of the Law Society of New Brunswick may count this program for 5.5 Continuing Professional Development Hours.
  • Members of the Nova Scotia Barristers' Society may count this program for 5.5 Continuing Professional Development Hours.