> CAW LAW REPORT

As you may know, a committee of labour relations "neutrals" has been appointed by the Federal Government to review Part One (Labour Relations) of the Canada Labour Code and make recommendations regarding changes to that statute. Next year, that is, 1996 may bring significant changes to the labour relations environment in the federal sector. It should be noted that last year, that is, 1994, witnessed a few but still important amendments to the Canada Labour Code which affect our members in workplaces governed by federal law. These amendments include the introduction of a final offer vote and changes to the labour standards provisions of Part III of the Code.

Section 108.1 has been added to permit the federal Minister of Labour to order a vote on an employer's final offer by employees in the affected bargaining unit if the Minister is of the opinion that it is in the "public interest" to do so.

The CAW strongly criticized the final offer vote amendment when it was proposed without consultation. The section interferes with the collective bargaining process and a union's right to represent its membership. In addition, the government has never demonstrated any need for such a provision. Section 108.1 does not include a right to a hearing, limit the number of times a Minister may invoke the section or provide any statutory criteria for the making of the decision. Nevertheless, the section is now law. If the employees vote in favour, the parties are bound by the offer and must enter into a collective agreement incorporating the terms of the offer.

CAW members will also be affected by changes to the labour standards part of the Canada Labour Code. For example, the amendments permit the contracting out of certain Code requirements through collective agreements, provided that they contain terms and conditions at least as favourable as those in the Code, replace the permit system for excess working hours, impose a duty to accommodate a pregnant or nursing employee, and revise maternity and parental leave provisions. The amendments also prohibit the dismissal, discipline or layoff of an employee because of absence from work due to work-related illness or injury, and render company directors liable for up to 6 months wages and other amounts if recovery of the amounts from the company is unlikely.

Occasionally, a grievor tells the union that she wants her own lawyer at an arbitration hearing. Does she have this right?

An employee is not entitled to separate legal representation at arbitration hearings in addition to the representation provided by her union unless the collective agreement clearly gives this right or special circumstances exist. Special circumstances exist where there is an obvious and direct conflict of interest between the union and grievor. It is not enough that the grievor does not like the union or is not confident in the union.

Unless the collective agreement clearly specifies otherwise, the only parties to the arbitration are the union and the employer. The union alone has carriage of its grievances. This is consistent with its role as exclusive bargaining agent for employees. Any alleged deficiencies can be remedied through the launching of a duty of fair representation complaint by the grievor. Because the union has sole carriage of the grievance, the union has the right to proceed, withdraw or settle the case at any time as long as it is fulfilling its duty of representation (i.e., not acting arbitrarily, in a discriminatory way or in bad faith). For further information, please consult these cases: Le Syndicat des Fonctionnaires Provinciaux du Quebec (1971) 23 LC 117, Governing Council of the University of Toronto, (1974) 5 LAC (2d) 304, Canada Packers, (1977) 17 LAC (2d) 108, City of Calgary, Labour Arbitration News, May, Vol. 28, No. 5, May, 1992.

The Legal Department often receives questions regarding the tax treatment of a cash settlement of a discharge grievance. Tax is a very complicated matter. However, the following general points should assist in understanding some of the issues.

The first point is that in the eyes of Revenue Canada is that virtually all "income" is taxable. The question then becomes what is "income" and/or what types of income are not taxable or taxed differently.

Frequently, settlements are made of claims involving the denial of disability payments. If an employee pays the premiums for disability coverage, any benefits payable are not taxable. However, if the employer pays the premiums, the benefits are taxable. Therefore, if the grievance is regarding the denial of disability benefits, and the settlement is replacing the benefits that would have been paid, the settlement is not taxable if the employee pays the premiums.

What about things like pain and suffering? Amounts for pain and suffering are not replacing "income" and are therefore not taxable. However, you cannot have a settlement based solely on pain and suffering. The amount for pain and suffering must only make up a portion of the settlement. Often the amount of wages lost is an indicator of how painful the employer's actions were and how much suffering was caused.

Legal costs are not taxable. If the settlement includes a portion towards the legal costs of the grievor, the grievor must be able to identify and account for those costs if questioned by Revenue Canada.

On May 25, 1995, the Supreme Court of Canada released its first decision on whether sexual orientation is a prohibited ground of discrimination under s.15 of the Canada Charter of Rights and Freedoms. The Court unanimously agreed that sexual orientation is a ground of discrimination prohibited by the Charter

The issue before the court was whether the definition of "spouse" in s.2 of the Old Age Security Act infringed s. 15 of the Charter. James Egan and John Nesbit have lived together as a couple for 47 years. If they were of the opposite sex, Nesbit would have been eligible for an old age security spousal allowance. Nesbit was denied the allowance on the basis that he was the same sex as his spouse.

While the Supreme Court unanimously agreed that sexual orientation is a prohibited ground of discrimination, the Judges did not agree as to how this applied to the facts before them. Essentially, four judges said denial of the allowance was discrimination based on sexual orientation and was not justified in a free and democratic society pursuant to s.1 of the Charter (i.e. The law is unconstitutional). Four judges said denial of the allowance was not discrimination based on sexual orientation (i.e. The law is constitutional). The final and tie breaking judge said denial of the allowance was discrimination based on sexual orientation but that this denial was justified in a free and democratic society pursuant to s.1 of the Charter (i.e. The law is unconstitutional, but is "saved" by s.1). Therefore, the law was not struck down.

What does that mean for bargaining same sex spousal benefits or grieving a denial of same? This decision does not prevent us from continuing to negotiate same sex spousal benefits in our collective agreements. We have been very successful lately in removing this discrimination from our agreements.

Where an employer denies benefits during the contract, the union should grieve. I am certain some employer will point to the Egan decision and say it means they do not have to extend benefits to spouses of our members who are of the same sex. That is not true. The Court was unanimous in saying discrimination on the basis of sexual orientation is illegal. The exemption that was given to the government is not applicable to private employers.

The reported arbitration cases of Canada (Treasury Board - Environment Canada) and Lorenzen (1993), 38 LAC (4th) 29 and Bell Canada(1994), 43 LAC (4th) 172 clearly show that an arbitrator will strike down a denial of benefits based on sexual orientation. The Egan case supports our argument that employers cannot deny benefits to the same-sex spouses of employees where benefits have been extended to heterosexual spouses.

An unusual set of facts gave rise to some important findings of law in a recent hearing before the Ontario Divisional Court involving the CAW-Canada Local 2213 and Air Canada. The case involved Air Canada's application for judicial review of a CAW-Canada victory at arbitration. Our member worked for Air Canada as a reservation agent. Her husband also worked for the company as a grounds person/machinist and he was a member of the IAM. The husband was fired for seriously and intentionally damaging a co-worker's personal property in the context of a bitter dispute between the two workers. The husband's discharge was upheld at arbitration.

As you may know, Air Canada has a free or reduced airfare plan which it extends to all of its employees and certain of their family members. This plan is set out in a written document which is not part of the collective agreement. When the husband of our member was discharged, Air Canada naturally cancelled his participation in the free or reduced fare plan, as he was no longer an employee of the company. However, Air Canada took it one step further. It also informed our member that she could not use her own reduced fare privileges to invite her husband to travel with her at a reduced fare. Air Canada simply said her husband would have to travel at full cost. It was made clear, therefore, that Air Canada's actions were not motivated by a safety concern, since they were not prohibiting our member's husband from travelling on an Air Canada plane, simply, one could reasonably say Air Canada was trying to punish the discharged worker and indirectly his spouse, our member.

The collective agreement had a no discrimination clause which, amongst other things, stated that Air Canada would not discriminate against employees based on marital status. The CAW-Canada argued at arbitration that Air Canada was indeed discriminating on the basis of marital status when it told our member that she could not use her reduced fare program to travel with her husband like other co-workers with their spouses. Air Canada argued that the promise of no discrimination found in the collective agreement applied only to the employer's application of the collective agreement and since the reduced fare program was outside the collective agreement, it was also outside the reach or jurisdiction of the arbitrator. Air Canada finally argued that discrimination on the basis of the "personal characteristics" of the spouse of an employee was lawful and not discriminatory on the grounds of marital status.

The arbitrator found in favour of the union and specifically rejected the employer's principle submissions. The Divisional Court rejected Air Canada's application for judicial review. The court said that the arbitrator's decision was not clearly unreasonable. The Divisional Court did not give detailed reasons. However, it is fair to say that the Divisional Court has accepted the view that a no discrimination clause in a collective agreement that is not specifically worded to apply only to the terms of the collective agreement will be deemed now to apply to all actions of the employer, whether or not these actions are covered by the agreement, or otherwise. Similarly, the Divisional Court has found that it is not unreasonable for an arbitrator to rule that discrimination based upon the personal characteristics of an employee's spouse constitutes in law discrimination on the basis of "marital status".

Seniority rights are the product of collective bargaining and are scarcely mentioned in Canadian labour legislation. In recent years, seniority issues have arisen on frequent occasions when federal and provincial labour boards have ordered the merger of bargaining units. What happens to seniority rights in the merged units? Do we "dovetail" (that is, do we merge the seniority lists so that everyone keeps her original seniority date but with a different ranking) or "endtail" (that is do we rank one entire list at the bottom of the other list) or do we attempt some other alternative? The labour boards usually leave the issue to the parties to resolve, since seniority rights are defined by the collective agreement.

The merger or consolidation of bargaining units can create a dilemma for the union because it usually involves a conflict between the seniority rights of two or more groups of employees. If the union puts the issue to a vote, one group will be better off to dovetail and the other group will be better off to endtail, which means that the larger group will win regardless of the equities of the situation.

What are the equities involved in the merger of two or more seniority lists? That may depend on whether both groups belong to the same union or the same local union, whether they worked for the same employer, whether lay-offs will be a consequence of the merger of the bargaining units, or even the relative seniority of the two groups.

The clearest case is when both groups work for the same employer and belong to the same union. In a recent Ontario case, the Board ordered two bargaining units in the same workplace to be consolidated at the request of the employer, who then wanted to dovetail the two seniority lists. The union which represented both units was faced with an internal conflict and refused to take a clear position. The Board agreed that a vote would not fairly resolve the issue, and ordered that the lists be dovetailed because "accumulated seniority ought not to be abrogated except in the most unusual circumstances" (FMG Timberjack (1995) OLRB Rep. February 115).

The more difficult cases involve a sale of a business (usually involving different employers and different unions) or a reconsideration such as in rail under the Canada Code (usually involving the same employer but different unions). Labour Boards usually rule that their jurisdiction on seniority rights is limited and that there is no one clear answer. In one case, the Canada Board found that a hybrid solution imposed by the winning union was more reasonable than either endtailing or dovetailing. Since the group which won a Board-ordered vote was three times the size of the losing group, the Board found that the union was within its rights to rank three of its own members on the seniority list for every one member of the smaller group (Donald H. Mole and Provost Buck Transport Inc. (1992) 88 di 17).

CAW-Canada Local 4573 recently lost several members to the ATU as a result of a partial sale of business by Voyageur to Greyhound. The Canada Board ordered that the two groups be merged into the ATU agreement. The two unions agreed to refer the seniority issue to an interest arbitrator. The arbitrator ruled: "I find no support in the case law for the proposition that there is a presumption in favour of dovetailing when two seniority lists are merged". Instead, he ordered that part of the CAW list be dovetailed and that the remainder be endtailed, based on the number of new fulltime jobs that the employer said would be brought into the unit as a result of the sale (unreported decision of Joseph Carrier, June 12, 1995).

The best solution may be to deal with the issue in advance, before the problem arises. This could be done in two ways. The union or local union could adopt a blanket policy that seniority lists will be dovetailed in any circumstances in which a bargaining unit is merged with another. It may be easier to approve such a policy in the abstract, when none of the union's members would know if their own unit may be merged or in what circumstances a merger may arise. The policy could then be introduced into the union's collective agreement. This could lead to unpopular or inequitable results in some cases. Another option is to raise the issue before the labour board in each individual case whenever an application is made which could result in a merger of bargaining units. If one union takes a clear position on the seniority issue at the outset, it could argue that the Board not order a merger without knowing what effect it would have on seniority rights. The Canada Board welcomes this approach (Seaspan International Ltd. (1979) 37 di 38). The provincial boards may well agree that this approach is in the best interest of labour relations.

The latest word in Ontario is that the Board "may well be inclined to grant considerable deference to the union's view" (Saint-Vincent Hospital) [1995] OLRB Rep. May 677.

When the union and the employer disagree on the seniority issue, the Board will act as an interest arbitrator. When an objection comes from disgruntled employees, the Board will review the union's decision in terms of its duty of fair representation.

Three person arbitration boards are constituted with less and less frequency these days. Generally speaking, three person boards are more expensive to the parties, and more difficult to coordinate with respect to scheduling hearing dates, and ultimately the issuance of a decision. Still, some CAW-Canada agreements call for such three person boards and from time to time, the Legal Department is consulted regarding the appointment of a union sidesperson to the Board. Frequently, the grieving CAW-Canada Local Union is interested in appointing another CAW-Canada staff person to the Board of Arbitration. There has been a substantial debate amongst arbitrators and judges as to how "neutral" a sidesperson has to be. The predominant view today is that unless the parties agree otherwise, a sidesperson will be asked to step down if "a reasonable person would conclude that the sidesperson might not act impartially". This test is admittedly broad and ambiguous. However, it has been applied in a leading arbitration award called Re Sherwood Cooperative Association Limited and Retail, Wholesale and Department Store Union, Local 539 (1989) 10 L.A.C. (4th) 111. In the Sherwood Cooperative Association Case, the R.W.D.S.U. Local Union nominated a staff person employed by the Saskatchewan Joint Council of the R.W.D.S.U., of which the Local Union was a part. The staff representative arguing the case for the Local Union was also employed by the same R.W.D.S.U. joint board. The employer successfully argued that the union sidesperson should step down as there was reasonable grounds to find that the union sidesperson might be partial. The chairperson who issued the award did not like the result he came to, but decided he was compelled to make such a finding by law. Therefore, a union sidesperson to a board of arbitration should not come from the staff of the union party to the grievance, unless the employer agrees otherwise.

The Canada Labour Relations Board recently determined in the case of Gingras v. Canadian Brotherhood of Railway Transport and General Workers and Via Rail Canada Inc. (1994) CLLC 16,059 that a union representative breached his duty of fair representation when he relied upon a disputed oral commitment made on behalf of the employer with respect to the employment status of a grievor. The grievor was discharged by Via Rail after he accumulated substantial "demerit" points all related to alcoholism. The union filed a grievance contesting the worker's discharge. The union representative in the course of the grievance procedure asked the company whether it would agree to reinstate the grievor if he successfully underwent detoxification treatment. The evidence of the union representative at the hearing before the Canada Labour Relations Board was that the employer's representative gave him an affirmative commitment. The grievor then entered hospital for treatment and accordingly, the union requested an extension of time limits regarding the processing of the grievance for the duration of his treatment. However, the employer refused to extend time limits. Thereafter, the union representative abandoned the grievance without obtaining any written minutes of settlement providing for reinstatement following treatment. The union representative did not refer the matter to arbitration but relied upon the employer's oral commitment to reinstatement following treatment. The employer refused to reinstate the grievor upon his release from the treatment program and denied the arbitrability of the grievance. The Canada Labour Relations Board never found as a fact that such an oral commitment to reinstate the grievor upon his release from the treatment program had been made by the employer. The Canada Labour Relations Board commented upon its view of the facts as follows:

"In short, the union representative decided to rely, for his handling of the case, on his belief that a verbal agreement had been reached, rather than seek clarification of the employer's written statement denying an extension of time limits."

The Canada Labour Relations Board determined that the union representative had violated the duty of fair representation. The element of arbitrariness was linked to the notion of competence and serious negligence. The Board found:

"He is clearly an experienced union representative whose knowledge of labour relations in general and of the processing of grievances in particular cannot be called into question. He works for a well established union which has long standing procedures for processing grievances, and which can readily distinguish between verbal and written communication, and dispute resolution proceedings."

The Board concluded that the conduct of the union representative amounted to serious negligence. Essentially, the Board found that it is necessary to finalize the settlement of any grievance in a written document that is as complete as possible and signed by the parties.

Therefore, in order to avoid a breach of the duty of fair representation, a union must:

 1. investigate a worker's complaints;

2. file a grievance in a timely fashion, if the complaint so warrants;

3. pursue the steps in the grievance procedure diligently to a settlement or determine whether the matter is to be referred to arbitration;

4. in all cases of settlement, signed documents must be obtained providing the details of the resolution of the grievance;

5. the union must consider carefully all aspects of the grievance, including all relevant collective agreement provisions, legislation, past practice and negotiating history before reaching the conclusion that a grievance is not to be referred to arbitration;

6. attention must be paid to mandatory time limits throughout the grievance procedure, including referral to arbitration.

Trade union representatives and rank and file leadership are increasingly aware of the responsibilities and obligations placed upon them by human rights legislation. It is not only employers who have a duty to accommodate workers who are adversely affected by a work rule with discriminatory consequences. Trade unions as well must act and respond fairly and reasonably to complaints of discrimination made by workers. Trade union representatives and leadership must also consider whether language in a collective agreement may be (even unintentionally) contrary to the applicable human rights code of the provincial or federal jurisdiction. For example, a term of a collective agreement that provides for automatic termination of a worker when he/she is absent for twelve or twenty-four months has recently been found to be illegal. If your collective agreement has such an article, the employer should be urged to agree to remove it immediately. At the same time, concern has been expressed that the union, as an organization, or union representatives and rank and file leadership, as individuals, may be held liable with respect to discriminatory language in a collective agreement even if the union has unsuccessfully insisted that the contract be changed. For example, what happens if, at collective bargaining, an employer simply refuses to change contract language which may constitute a violation of the Human Rights Code despite the concentrated efforts of the union bargaining committee? Is there a way to protect the union from the possible results of a proceeding that might be launched before a human rights tribunal?

One staff representative was able to get the employer to agree to the following letter of agreement which is set out below.

Application of Articles A, B, C and RST

During negotiations for the current collective agreement, there was considerable discussion regarding the union's proposals to delete the above articles due to its concern that their application may constitute a violation of the Human Rights Code. In order to resolve this issue and in recognition of the union's concern, the company agrees that in the event the application of these articles is found to be a violation of the Ontario Human Rights Code, the company shall indemnify and save harmless the union and any of its representatives from any losses, damages, costs, liability, or expenses suffered or sustained by the union and/or its representatives as a result.

 In any event, careful and detailed notes should be made of the union's attempts to persuade the employer to change the disputed language in the collective agreement. As well, a careful record should be made of the employer's refusal to act. The union should alert the employer that it may file a grievance to contest the application of the disputed contract language. Then, in an applicable case, the union should file a grievance, alleging amongst other things, that the article in question, as administered by the employer is contrary to human rights law. In most cases, a union sponsored grievance raising the issue will be preferable to the filing of a complaint by the individual worker with the Human Rights Commission. A union sponsored grievance will be handled by the union in a more responsive, quick, and consistent manner. The treatment of the issue by a Human Rights Commission may not be consistent with the labour relations reality of the workplace in question, and the Commission may try and prosecute the union despite the fact that the union never "voluntarily" agreed to the contract language in question.

CAN AN EMPLOYER FORCE "HOMEWORK" UPON A WORKER

The Simon Fraser University in British Columbia entered into an arrangement, described by an arbitrator as an "agreement" with one of its employees that allowed that employee to perform his employment duties from his home via computer. The arrangement was not discussed with the worker's collective bargaining agent, even though there was a collective agreement in force between the University and the union at the time. The collective agreement itself was silent with respect to at home work. The union initiated grievance proceedings challenging the right of the University to schedule work at an employee's home. The union asked the arbitrator to imply a term in the collective agreement that the University could not arrange for homework with an employee or schedule homework without the union's agreement. The arbitrator dismissed the union's grievance, finding that he, the arbitrator, had no jurisdiction to imply such a term into the collective agreement on the basis that his jurisdiction was confined to the "interpretation, application, operation, or any alleged violation of the collective agreement". The arbitrator found that the agreement between the employee and the University did not conflict with the terms of the collective agreement, and that it fit into the routine administration exception to the union's exclusive bargaining authority. He did not expressly find that the University had a unilateral right to schedule work in a worker's home. The arbitrator's findings were appealed to two panels of the British Columbia Industrial Relations Council. One panel found that a private agreement between a worker and an employer was improper because it contravened the statutory principle of the union's exclusive bargaining authority. The other panel found, however, that as a matter of law, an employer could assign an employee to work at any location, including the employee's home, subject to the constraints of the collective agreement. The second panel found that if the worker refused, the employer could decide whether to enforce the assignment of work through disciplinary means, in which case the disciplinary action could be grieved as unreasonable.

The matter ultimately went to the Court of Appeal of British Columbia. That court found that the panel's decision that the University had a unilateral right to schedule work in the employee's home was patently unreasonable and ought to be quashed. The Court of Appeal decided that there could be no possible doubt that an employer has no legal right to require an employee to dedicate any part of his home to the performance of job functions. That is not to say that an employer could not call an employee at home in proper circumstances, or give an employee an option to perform specified work at home, or some other convenient location without intruding upon the exclusive authority of the union. Reasonableness would usually be the test by which an employer's directions would be examined. The essence of the decision of the Court of Appeal is that an employer has no legal right to require a worker to dedicate any part of his/her home to the performance of job functions.

The following is an excerpt from an article written by a lawyer with the law office of Nelligan Power in Ottawa which may be of interest.

"Collective agreements frequently provide for various types of insurance coverage, ranging from weekly indemnity benefits to life insurance. However, an employee who is covered by a collective agreement that provides for insurance will not always be able to grieve against an insurer's refusal to pay benefits.

Whether the refusal is arbitrable will depend on the specific language of the collective agreement.

Contractual arrangements providing for various kinds of insurance benefits under collective agreements are typically characterized as falling into one of the following four categories:

(1) the agreement makes no reference to the insurance policy;

(2) the agreement makes provision for specific benefits;

(3) the agreement provides only that the employer will be responsible for payment of insurance premiums;

(4) the agreement incorporates by reference a specific insurance policy.

In the first type, even if there is an insurance policy in place at the time the parties enter into their collective agreement, the policy does not become part of the agreement.

Where the parties have chosen the second type of arrangement, the employer is responsible for providing the agreed upon benefits. The employer becomes, in effect, the guarantor of the benefits. A denial of benefits by the insurer would give rise to a right to grieve and the issue of entitlement would fall within the jurisdiction of an arbitrator.

Under the third type of arrangement, the employer is responsible for obtaining the required insurance policy and paying the premiums. The employer is simply the policy holder, with no obligation to provide the insurance benefits contracted for. An insurer's failure to provide benefits will not form the subject of a grievance. An employee who has been denied benefits will have to challenge the insurer in a civil court action.

With this third type of arrangement, however, the employer must ensure that the policy it obtains provides for the benefits stipulated in the collective agreement. The employer is also responsible for ensuring that the clauses in the policy pertaining to eligibility and administration are "standard" provisions.

The insurance policy cannot contain conditions of entitlement which detract from the benefits required to be provided under the collective agreement. An employer who fails to provide a plan which encompasses all employees in the bargaining unit, for example, or which excludes an employee on the basis of a non-standard eligibility provision, may be found by an arbitrator not to have satisfied its obligations under the collective agreement and may be held liable for the benefits specified in the agreement.

If the employer has satisfied its obligations to arrange for the agreed upon benefits, any dispute as to entitlement to benefits will be as between the union and the insurance carrier and the employer will be relived of liability for benefits.

 In the fourth type of arrangement, the insurance policy actually becomes part of the collective agreement and any dispute as to the application of a provision of the insurance policy is arbitrable. As in the second type, the employer is responsible for providing the benefits contracted for.

In the particular circumstances as noted above, when the grievance/arbitration procedure is not available, there may still be legal recourse which is relatively inexpensive, quick, and easily available for the individual worker. That recourse is the small claims court. Most provinces have such a court. Generally lawyers are not needed to launch a small claims court action and the process is less complicated than one would think.

In Ontario small claims court was set up to provide an inexpensive and informal mechanism for resolving disputes. Its monetary jurisdiction is $6,000, not including interest and costs. If the actual amount owed is greater than $6,000, the worker who wants to sue (the plaintiff) can reduce the claim to bring it within the court's jurisdiction.

Most lawsuits shouldn't cost more than $6,000 to pursue (plus lost wages for the day in court). A lawyer isn't required. In fact, workers can represent themselves or be assisted by their union representative. And court officials are able to assist the plaintiff much more so than in other courts. For example, a lawsuit is commenced by filling out a form (obtained at the court) called a statement of claim. This involves setting out the claim in detail and the remedy sought. Court officials will review the statement of claim to see if there are any obvious problems they can help with eg. is the claim being filed in the court's jurisdiction. Court officials will then arrange to serve the statement of claim on the defendant insurance company. (The court has its own rules and you should be able to obtain a copy there.)

n suing for insurence benefits, it will be important to set out the full correct name and address of the insurance company being sued, and the "who, what, when, where and why of the claim" eg. who is the plaintiff, where she is an employee, what insurance policy is she covered by, what was the claim for insurance, when was it made, what is the test for receiving benefits and why does she meet it, when was she denied, or her benefits terminated. Keep in mind that you want to establish the insurance company's legal liability to pay the benefits and to prove the amount of the loss. Attach copies of any documents you are relying on such as the insurance contract, claim forms or doctor's notes.

One essential detail to remember in the Province of Ontario is that the claim should state that the plaintiff is relying on section 318 of the Insurance Act RSO 1990 cI-8:

"A group person insured may, in his or her own name, enforce a right given by a contract to him or her, or to a person insured thereunder as a person dependent upon or related to him or her, subject to any defence available to the insurer against him or her or such person insured or against the insured."

This section should ensure that the worker can sue the insurance company even though she is not a party to the insurance contract which is actually between the insurance company and the employer. And be very aware of any TIME LIMITS for suing.

Remember of course to set out how much you are claiming, and to ask for costs and interest and "such further and other relief as to this Court may seem just."

Small Claims Court also actively promotes settlements so that in some cases the court may order, and you can always request, a pre-trial conference with the insurance company and a judge or other court official. Given the relatively small amount of money involved, you might have a good chance of getting a settlement from an insurance company rather than going to a trial.

If you do end up in a trial, again Small Claims Court takes a more informal approach (much like arbitrations) with the judge playing a more active role during the hearing, particularly where individuals aren't represented by lawyers. You might consider researching the Labour Arbitration Cases for decisions on insurance benefits that would help your case.

Something to think about, in Ontario anyway, next time you're looking for ways to help workers get the benefits to which they're entitled. And, next time you're in bargaining, remember to get the language in the collective agreement changed so you can grieve!

Now that it appears that votes will be mandatory in all applications for certification in Ontario, even more careful attention will have to be paid to the process by which the Ontario Labour Relations Board conducts a representation vote and counts the ballots cast.

A recent decision of the Divisional Court of Ontario involving the CAW-Canada and a company called Maidstone Manufacturing Inc. offers some legal direction in this area.

The CAW-Canada won a representation vote amongst workers at Maidstone, in southern Ontario, by one vote. The employer challenged the Board certificate granted to the CAW-Canada on two grounds;

1. that the Board was wrong in concluding that a ballot which contained an X in the no circle and a line in the yes circle was a spoiled ballot;

2. that the Board was wrong in excluding spoiled ballots from the total number of ballots cast for the purpose of determining whether more than 50% of the ballots cast were in favour of the union.

The court decided that the Board's decision in treating the ballot described above in paragraph 1 as spoiled was reasonable. Further, the court was clear in saying that past caselaw supports the principle that a spoiled ballot cannot be counted in determining majority support. To do so, the court said, would be equivalent to treating a spoiled ballot as a negative anti-union ballot, which, of course, it is not. The employer application for judicial review was dismissed.

LOCAL UNION PUBS MUST BE CAREFUL

If your local union executive board sits as well as directors of a Local Union Building Corporation, and if your Local Union Building Corporation runs a local union hall with a pub or drinking establishment inside it, you should be interested in the results of a recent Supreme Court of Canada decision called Stewart v. Pettie. This case states once again that those corporations or businesses that sell alcohol to customers have a duty of care to third parties, that is persons other than customers, who could be injured by drunken customers. This duty of care requires corporations, (like Local Union Building Corporations that operate pubs) to take positive steps to prevent harm to drunken customers and others. Therefore, the staff of local union pubs should be alerted to the following points:

1. they must monitor the alcoholic intake of customers;

2. they must be ready to cut off service of alcohol to a customer, even before there are visible signs of intoxication, particularly if that customer is driving a vehicle. Impairment of a customer may exist without visible signs of drunkenness;

3. they must take all reasonable steps to prevent an intoxicated person from driving. Options include calling a cab for the customer, arranging a ride for the customer with a sober person, or putting the customer under the care of another responsible, sober person.

If a local union pub allows a severely intoxicated person to leave the premises and drive a vehicle, a serious and troubling law suit may follow any accident that might happen "down the road."

This past summer, the Supreme Court of Canada published a unanimous decision that will have an enormous impact upon the presentation of arbitration cases involving workers dismissed due to an excessive absences because of alcoholism or illness. The issue before the court in U.S.W.A. Local 6869 v. Quebec Cartier Mining Companycan be framed this way: "where an arbitrator finds that an employer had just cause to dismiss a worker suffering from alcoholism, can the arbitrator go on to rely on evidence of the worker's recovery after his/her dismissal, in order to reinstate the worker to employment."

Essentially, the court found as follows:

"Post dismissal evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented. Accordingly, once an arbitrator concludes that a decision by the company to dismiss an employee was justified at the time it was made, he cannot then annul the dismissal on the sole ground that subsequent events render such an annulment, in the opinion of the arbitrator, fair and equitable."

The facts of this case were particularly difficult for the worker and his union. On almost a dozen occasions between 1987 and 1990, the grievor had been absent from work without authorization. After each of these incidents, the employer imposed discipline that was subsequently reduced in exchange for promises by the grievor to seek treatment for his alcohol problem. However, the grievor never carried out his promise, and his condition remained untreated. Indeed, on one occasion, the company decided to dismiss the grievor but then rescinded the dismissal on the condition that the grievor undergo treatment. Despite the company's initial decision to dismiss, the grievor still failed to enter a treatment program. When the grievor was absent from work without authorization again, the company decided to dismiss him once and for all.

Approximately two and half months after his dismissal, the grievor underwent a twenty day treatment program which was successful and the grievor fully recovered from his alcoholism. Seven months later, the arbitrator who heard the grievor's case ordered that he be reinstated. In making his decision, the arbitrator ruled that while the employer was justified in dismissing the grievor, at the time that it took the action, the grievor's subsequent recovery justified setting aside the employer's decision.

The court decided that an arbitrator must address the specific question of just cause that is put before him in this way: the arbitrator must state whether or not the decision to dismiss the employee was justified at the time of the employee's dismissal.

The court went on to say that an arbitrator must determine whether or not just cause has been established by considering both whether the employee's ability to fulfil his workplace duties was impaired by his alcohol problem, and whether any improvement in this respect was likely in the foreseeable future. The court stated this analysis must be confined to a consideration of these issues at the time the employee was actually dismissed. Post dismissal evidence, the court ruled, is admissible only when it is relevant to the reasonableness of the decision to dismiss at the time the decision was made. The court stated:

"To hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed, and the time lag between the initial filing and the final hearing by the arbitrator. Furthermore, it would lead to the absurd conclusion that a decision by the company to dismiss an alcoholic employee could be overturned whenever that employee, as a result of the shock of being dismissed, decides to rehabilitate himself, even if such rehabilitation would never have occurred absent the decision to dismiss the employee."

The court ruled that the arbitrator, by relying on evidence of events subsequent to the dismissal to overturn management's decision, exceeded his jurisdiction.

This decision is clearly a step backwards for workers and their unions. Up to now, arbitrators in Canada have admitted evidence of post-discharge rehabilitation of an alcoholic or ill worker. There are, however, several responses that can be made to this court decision.

First, it should be noted that the statute in Ontario regarding an arbitrator's powers is phrased differently that the statute in Quebec. This difference may be very important in the disposition of these kinds of cases. In Ontario, section 45(9) of the Labour Relations Act provides that where an arbitrator finds the employer imposed a penalty for cause, an arbitrator still has the power to substitute such lesser penalty as he, she, or it considers just and reasonable in all the circumstances. This phrase "in all the circumstances" would include evidence of post-dismissal recovery. Section 60(2) of the Canada Labour Code has similar language as the Ontario statute. Therefore, the applicability of these Supreme Court of Canada decisions in Quebec Cartier Mining Company in jurisdictions outside Quebec may depend on the nature and scope of the powers conferred upon arbitrators in their respective statutes. Further, and in any event, it may be wise and prudent now to strongly encourage or arrange for, a worker who has been dismissed due to alcoholism or illness, to immediately attend a recovery program, and immediately obtain an expert opinion as to the worker's prognosis for recovery as of the date of his/her dismissal. In the past, it was generally to the worker's advantage to wait before obtaining a doctor's written opinion, so as to maximize the workers chances for recovery. This delay must now be avoided, if at all possible.

Also, bargaining committees should consider bargaining explicit language in their own collective agreements giving an arbitrator complete power to substitute a penalty when all the circumstances of the case support such a modification. As well, we must consider the human rights implications of a worker's discharge due to illness or alcoholism. It is surprising that the Supreme Court of Canada did not squarely address the human rights aspect of the decision. Attention must still be paid to the question whether an employer has done everything it can reasonably do, short of undue hardship, to accommodate the worker in question, before the decision to dismiss is made.

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