FAQ's Cases - Stewart McKelvey

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12hearing of these applications. In several instances during cross examination, he acknowledgedthat there were mis-statements in his Affidavit.[55] The Union also called Nat Dunbar to testify. He commenced work with theEmployer as a general labourer on April 11, 2011. After orientation, and following about a weekwhere he was assembling tools, he began working on the assembly of grain augers.[56] He claimed that his direct supervisor, Mr. Mike Mason had told him on the day hewas laid off (June 24 th ) that he would be scheduled for forklift or crane training the followingTuesday. In her testimony, Ms. Outerbridge questioned this insofar as all training was arrangedthrough her and she was not aware of any training being scheduled.2011 CanLII 72774 (SK LRB)[57] In his testimony, he testified that at the “tool box” meeting he attended, Mr.Lepper made no mention of the formation of an Employee’s Association. He also testified thathe did not recall any mention of cross-training or wage rates at the “tool box” meeting, buttestified that profit sharing was discussed. He also confirmed that he asked a questionrespecting non-working notice given to those employees who were laid off.[58] With respect to the organizing campaign, he says he spoke to three employeeson Monday and Tuesday (June 20 & 21, 2011), two in the lunchroom and one in the parking lot.He testified that he didn’t know if anyone saw him speaking to other employees.Arguments of the Parties:Employer’s Argument[59] Counsel for the Employer provided the Board with a written argument and caseauthorities which we have reviewed and found helpful.[60] The Employer argued that the purpose of Section 11(1)(e) was to ensure thatEmployers do not use disciplinary sanctions to discourage employees from the exercise of theirright of association under the Act. 2 They argued that in the application of the reverse onusprovision contained in s. 11(1)(e), the Board has used a two part analysis. In the first part of thetest, the Board determines whether the Employer has presented a plausible or coherent and2 SGEU v. Regina Native Youth and Community Services Inc., [1995] S.LR.B.D. No 4 at p. 4 (QL)
13credible reason for the discipline or lay off. The second part of the test is whether or not,despite having a credible reason, it can be established that the decision was accompanied byan anti-union animus. In support of this position, the Employer cited several cases. 3[61] The Employer argued that the Board should not consider if the Employer had“just cause” as that term is understood by arbitrators 4 . They also argued that s. 11(1)(e) doesnot preclude an employer from terminating or laying off employees who are exercising theirrights under the Act for economic or business reasons. 5[62] The Employer argued that while the onus placed upon the Employer in s.11(1)(e) was difficult to meet, it was not impossible to meet. 6 With respect to the onus on theEmployer in s. 11(1)(e), the Employer acknowledged that in circumstances when the reverseonus applies, it is not always sufficient for the employer to prove that an employee was laid offfor lack of work. When there is a choice as to who will be laid off, the employer must go furtherand explain why it chose to lay off one employee and not another. 72011 CanLII 72774 (SK LRB)[63] The Employer argued that the Board has, in numerous decisions, concluded thata layoff coincidental to an organizing campaign, newly established bargaining relationship orother union activity did not constitute an unfair labour practice. 8[64] The Employer argued that it had “good and sufficient” reason for laying off theemployees due to economic conditions and sales shortfalls. They argued that there was noevidence of “anti-union” animus. Nor, it submits, was there any evidence to show that theEmployer was aware of the support for the union or participation by any of the laid offemployees in the organizing drive.3 RWDSU v. Regina Exhibition Association Limited, [1995] 3 rd Qu. Sask. Labour Rep. 37; Patrick Monaghan andDelta Catalytic Industrial Services and Saskferco Products Inc., [1996] S.L.R.B.D. No. 28.4 See RWDSU v. Regina Exhibition Association Limited, supra at 625 Elaine Warne et al. v. Regina Exhibition Association Ltd., [1996] Sask. L.R.B.R. 5.6 See RWDSU v. Regina Exhibition Association Ltd., supra, Note 2; C.U.P.E., Local 4973 v. Welfare Rights Centre[2011] S.L.R.B.D. No. 37 United Steelworkers of America v. Brandt Industries Ltd., [1991] S.L.R.B.D. No. 128 Patrick Monaghan v. Delta Catalytic Industrial Services and Saskferco Products Inc., supra Note 2; C.U.P.E. v.Board of Education of the Kamsack School Division No. 35 of Saskatchewan, [2001] S.L.R.B.D. No. 43; PeterRadoja, Sandie Evans and Colleen Thuen v. Develcon Electronics Ltd., [1985] October Sask. Labour Rep. 62;RWDSU v. Off The Wall Productions Ltd., [2000] S.L.R.B.D. No. 13; International Union of Operating Engineers,Hoisting Portable & Stationary and Points North Services Ltd. and Points North Construction Ltd., [[1995] S.L.R.B.D.No. 59; and Shopmen’s Local Union No. 838 of the International Association of Bridge, Structural and OrnamentalIron Workers and Metal Fabricating Services Ltd., [1990] Spring Sask. Labour Rep. 70.
Page 1 and 2: The Labour Relations BoardSaskatche
Page 3 and 4: 3unionized workforce at their plant
Page 5 and 6: 5[15] In addition, there was some h
Page 7 and 8: 7Employee “D”: He was on his pr
Page 9 and 10: 9[37] The Board did not have the be
Page 11: 11[48] Shortly after Mr. Copeland b
Page 15 and 16: 15outlined by the Board in RWDSU v.
Page 17 and 18: 173. Order for captive audience mee
Page 19 and 20: 19for his failure to produce the wi
Page 21 and 22: 21[95] Similarly as noted in the qu
Page 23 and 24: 23[103] Also, in The Newspaper Guil
Page 25 and 26: 25rights under the Act. The Employe
Page 27 and 28: 27The determination of whether, in
Page 29 and 30: 29respect to the section of the Alb
Page 31 and 32: 31meetings, would have been within
Page 33 and 34: 33[143] In respect of the complaint
Page 35 and 36: - 2 -[2] The plaintiff, Susan Chart
Page 37 and 38: - 4 -by the time she finished there
Page 39 and 40: - 6 -[24] Testimony was received fr
Page 41 and 42: - 8 -would feel grateful for the fo
Page 43 and 44: - 10 -[49] 2. Comfortable, even tem
Page 45 and 46: - 12 -[67] Another complaint was th
Page 47 and 48: - 14 -bottom of the problem and the
Page 49 and 50: - 16 -member about something amusin
Page 51 and 52: - 18 -[111] Given that the meeting
Page 53 and 54: - 20 -[130] Some of the plaintiff
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Page 57 and 58: COURT OF APPEAL FOR ONTARIOBETWEENC
Page 59 and 60: Page: 3[5] In his application, the
Page 61 and 62: Page: 5(c) By the Employer at any t
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Page: 7continuation, in the amount
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Page: 9D. ANALYSIS[23] It is well-s
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Page: 11[28] The appellant submits
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Page: 14[37] When parties contract
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Page: 16addressing the issue of a c
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Page: 18application of mitigation:
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Page: 202008 ONCA 479, 91 O.R. (3d)
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Page: 22[56] Notably, the concern e
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Page: 24termination without cause,
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Page: 26[64] The costs on the appli
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The parties agree this Board has th
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Mr. Wallace. The evidence is that M
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Mr. Mutter and Mr. Wallace each tes
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Mutter spoke. He testified he was a
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saw (or was told by the crew) Mr. K
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and heard, as well as other factors
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When viewed in that light, it is fa
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IN THE SUPREME COURT OF BRITISH COL
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Balogun v. Deloitte & Touche, LLP P
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Page 2of the immediate problem that
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Page 4- He admitted that he had pla
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Page 626 26. The Grievor's conduct
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Page 8he had a problem with was fro
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Page 10supervisor. Counsel argued t
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Page 12hope to gain a financial ben
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Page 1483 83. McKinley is an import
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Page 16(iv)Has the employer attempt
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HUMAN RIGHTS TRIBUNAL OF ONTARIO___
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[1] This is an Application under se
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[10] Sean McKay also testified on b
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THE LAW[19] Section 5 of the Code p
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that ensued. There is no evidence t
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HUMAN RIGHTS TRIBUNAL OF ONTARIO___
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[1] The applicant has filed two App
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CHRONOLOGY OF KEY EVENTS[11] The ap
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tasks beyond his functional limits
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do what they can and that if someon
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checking summaries before stating t
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Roehl in June or to the respondent
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Section 10 of the Code defines hara
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was assigned duties that required h
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-last portion of the day he levels
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[66] I recognize that some of the c
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was made aware on May 22/07 that hi
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“To be honest Tony I don’t know
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is older, or believed that the appl
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[91] The applicant also submitted t
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steps to address allegations of dis
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this period lessening, in my view,
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[109] The respondent submits that i
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that the events of May 22 may have
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Accordingly, I am requiring the par
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FAQ's Cases - Stewart McKelvey

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