Courts have long implied into employment contracts an “all pervasive” duty of good faith and fidelity that constrains the behaviour of employees. Canadian labour relations statutes impose an obligation on unions to act in good faith in their dealings with the employees of the bargaining units they represent. However, the obligation of employers to act in good faith is less clearly defined in both the unionized and non-unionized contexts. This session will address the good faith obligations of all workplace parties in both unionized and non-unionized workplaces, including the emerging duties of employers to act in good faith.

Good Faith in Non-Unionized Workplaces:

• The Employee’s Good Faith Duties: What is the extent of the general duty of “good faith and fidelity” implied into all employment contracts? What is the rationale behind this duty? When is a breach of the duty of good faith and fidelity cause for dismissal? What types of implied obligations of employees fall under this general duty? Do aspects of this duty survive the employment relationship? If so, why? How enforceable are promises not to compete, not to solicit and not to steal trade secrets?
• The Employer’s Good Faith Duties:Does the duty of “good faith and fidelity” impose obligations on employers as well as on employees? If so, what is the extent of the employer’s duty? What remedies are available if an employer breaches this duty? When will courts find a violation of the employer’s duty to act in good faith in the manner of dismissing an employee? What remedy is available when an employer violates the duty to act in good faith in dismissing an employee? Are damages for mental distress available?

Good Faith in Unionized Workplaces:

• The Employer’s Good Faith Duties:Besides the duty to bargain in good faith, do other good faith duties constrain an employer in dealing with unions and employees? Does the employer’s duty to act in good faith end once bargaining is complete or does it apply to the administration of the collective agreement? If it applies to the administration of the collective agreement, does it apply to all areas of managerial action? Does it apply to areas in which an employer exercises traditional management rights? What about areas in which discretion is explicitly given to management? Is the obligation to exercise management rights fairly and reasonably the same as the duty to act in good faith in administering the collective agreement? What remedies have arbitrators awarded where they have found that an employer has violated an obligation to administer the collective agreement in good faith or to treat employees reasonably and in good faith?
• The Employee’s Good Faith Duties:What is the extent of an employee’s duty of good faith and fidelity in a unionized environment? What obligation does an employee have when faced with a conflict of interest? How does this differ from the extent of the duty in a non-unionized workplace?
• The Union’s Good Faith Duties:What is the extent of the union’s duty to act in good faith in dealing with its members/employees in the bargaining unit it represents? How can a union meet this duty when two members are in conflict?