With the upheaval and significant challenges and difficulties of 2020, some important labour and workplace law cases may not have been front of mind for employers and HR practitioners.
The following are what we consider to be among the top five cases of the last 12 to 18 months or so:
Vancouver Shipyards Co. Ltd. v. Construction Maintenance and Allied Workers, Loc. 506 Marine and Shipbuilders (Bohun Grievance),  B.C.C.A.A.A. No. 66 (McPhillips)
In this case, Arbitrator David McPhillips distinguished between post-incident drug testing, reasonable cause testing and random testing, and focused in particular on post-incident testing.
The arbitrator explained that post-incident drug testing does not require an employer to prove it has "reasonable cause" or grounds to believe that the employee may have been impaired. The thrust of the analysis should be the incident and its cause or causes.
Where an incident occurs and causes beyond employee error are ruled out, post-incident testing may be required to uphold the safety interests of the employer.
An employer should consider the following three elements:
- the threshold level of incident required to call for the testing;
- the degree of inquiry necessary before the decision to test is made; and
- the necessary link between the incident and the employee to justify the testing.
In the case before him, Arbitrator McPhillips held that all of the elements were properly satisfied. The potential for serious injury was sufficient to justify the testing, irrespective of the fact that the financial cost of the property damage was minimal. As well, the supervisor did not rush to conclude that a drug and alcohol test was required. Rather, the employer engaged in a thorough investigation of the incident before concluding that a test was necessary. In addition, the grievor admitted that his error caused the incident. He was a highly experienced operator, this was not the kind of incident that occurred frequently and the incident appeared to be caused by operator error.
In all of the circumstances, the post-incident testing was justified.
Suen v. Envirocon Environmental Services, ULC, 2020 BCHRT 188 (Ohler)
After a saga lasting five years or so, the B.C. Human Rights Tribunal dismissed the remainder of Brian Suen's complaint of prohibited discrimination. It held that Mr. Suen had not been subjected to family status discrimination when his employer dismissed him from employment after he refused to accept a temporary out-of-town work assignment following the birth of his daughter.
After the complaint worked its way through judicial review in the court system and leave to appeal to the Supreme Court of Canada was denied, the Tribunal was left with the question of whether Mr. Suen could establish a case of direct discrimination and, specifically, whether he had suffered a negative or adverse impact in employment because of his status as a father per se. (The B.C. Court of Appeal previously dismissed his claim of adverse effect discrimination when it held that the employer was not obligated to accommodate any caregiving obligation he owed as a father.)
The Tribunal dismissed Mr. Suen's claim of direct discrimination and concluded that his family status did not factor at all into the decision to terminate his employment. The employer was within its rights to assign him to an out-of-province assignment and dismiss him from employment when he refused to accept the assignment.
The Tribunal specifically recognized that the employer "was not obligated to allow Mr. Suen to set his own terms of employment". A requirement to accommodate any parent who does not want to be away from his or her family would put employers in an "untenable position" because "[w]here travel is required, someone has to go".
Zellstoff Celgar Limited Partnership v. Public and Private Workers of Canada, Loc. 1 (Accommodation Grievance),  B.C.C.A.A.A. No. 60 (Kandola)
This case involved a long-service employee who developed significant mental health issues which impeded his ability to work as a lubrication mechanic. He was initially placed in the relief pool at the same wage as he had before, but was later permanently placed as a medium equipment operator (MEO) and paid $8 to $9 less an hour.
Although an employer is permitted to accommodate an employee in a position with lower pay, Arbitrator Koml Kandola held that the employer may only proceed in this manner if it is "the only suitable position".
The employer had to take further steps in this case before it could take the position that placing the employee as an MEO was a reasonable accommodation. For instance, further and better and more specific medical information should have been obtained with respect to the grievor's restrictions and "whether the lubrication mechanic position could have been modified to meet those restrictions".
In the view of Arbitrator Kandola, the employer properly requested an independent medical examination (IME) but failed to ensure that it received the medical information required to assess whether modifying the grievor's duties was "reasonably possible".
If returning the grievor to the lubrication mechanic position was not possible without undue hardship, the employer was obligated to consider whether other positions with the same or very similar pay were available. Only if such positions were not available could the employer consider positions at a lower wage.
The arbitrator rejected the union's claim for $12,000 as compensation for injury to the grievor's dignity, feelings and self-respect under the B.C. Human Rights Code. The employer showed sincere concern for him during the process. The arbitrator did, however, make a rare award of $2,500 to the grievor because he felt devalued by the reduction in his wages in the accommodation process.
British Columbia v. B.C. Crown Counsel Assn. (Long-Term Disability Benefits Grievance),  B.C.C.A.A.A. No. 123 (Saunders)
The grievor attempted to return to work after medical leave, but refused to provide the employer's rehabilitation committee with permission to make direct contact with her physicians. However, she consistently maintained her willingness to provide any medical information required by the committee to fulfil its process and repeatedly asked what information was necessary.
Arbitrator Ken Saunders acknowledged the employer's right to request medical evidence but made it clear that this right is not unlimited. He noted the "well-established arbitral consensus that the right to manage does not confer direct access to [the] employee's physicians on demand, and without first exhausting the least intrusive means to answer reasonable inquiries".
The employer may exercise its right to seek and obtain medical evidence but should start by satisfying its inquiries through the least intrusive means. The arbitrator did not foreclose the possibility that it might be reasonable for the employer to make direct contact with the employee's physician under certain circumstances.
In this case, Arbitrator Saunders held that the employer failed to accommodate the grievor to the point of undue hardship. Its insistence that it be permitted to contact her physician directly due to an issue concerning the nature of her diagnosis was unreasonable.
Tolko Industries Ltd. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Loc. 1-2017, 2020 BCLRB 57 (De Aguayo, Glougie and Chesman)
In this case, a reconsideration panel of the B.C. Labour Relations Board confirmed that not every temporary layoff of indefinite duration will trigger an employer's obligations to give notice to the union and meet under s. 54 of the B.C. Labour Relations Code.
The reconsideration panel confirmed that the requirement to give notice and meet under s. 54 has three elements:
- The section applies when an employer introduces or intends to introduce a change that affects the security of employment of a significant number of employees.
- The section obligates the employer to give the union 60 days of advance notice of the change. A failure to give notice may result in damages.
- Section 54 obligates the employer and union to meet in good faith and try to develop an adjustment plan to mitigate the impact of the change.
The context, including the particular industry and the circumstances of the individual employer, must be taken into account when determining whether a layoff in a particular case is a change which engages s. 54.
The reconsideration panel noted that a temporary layoff can take many forms and impact the workforce to varying degrees in different industries and at different times. Market volatility is a characteristic of resource-based industries. Quick decisions by the employer are often required. Consequently, it can be difficult in such cases to identify a fixed date for recall from layoff.
In this case, the reconsideration panel held as follows:
- A decision to implement a temporary layoff responsive to market or operating conditions, with no stipulated date for recall, does not, in and of itself, trigger obligations under s. 54.
- Whether s. 54 applies depends on the nature of the layoff and whether it is a predictable feature of the employment relationship.
- Workplace and industry evidence can assist in determining whether a temporary layoff is a predictable feature of the employment relationship.
- A long-term layoff of indefinite duration, beyond what may be customary in the industry, will likely trigger the requirements of s. 54.
- The determination of whether s. 54 applies to a particular layoff is to be made in light of the relevant circumstances at the time the decision to lay off is made or implemented.
Temporary curtailments have long been part of the forest industry in B.C. because of market forces, seasonal weather and other factors. The employer established a history of layoffs for a variety of reasons, including industry volatility impacting the employer's finances.
The reconsideration panel overturned the decision of the original panel that the employer breached s. 54 when it did not provide the union with 60 days of advance notice of the layoff. The layoff fit within the established practice and history of layoffs at the employer and thus was not the type of change which engages s. 54.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.