FAQ's Cases - Stewart McKelvey

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22Has there been a breach of Section 11(1)(e) by the Employer?[100] The Board has recently outlined its jurisprudence with respect to the applicationof s. 11(1)(e) of the Act in Canadian Union of Public Employees v. Del Enterprises Ltd. o/s St.Anne’s Christian Centre. 18 That decision referenced the Board’s decision in Canadian Union ofPublic Employees, Local 3990 v. Core Community Group Inc., 19 which decision referenced theBoard’s decision in Saskatchewan Joint Board, Retail Wholesale and Department Store Unionv. Moose Jaw Exhibition Co. Ltd. 20[101] In the Moose Jaw Exhibition case, supra, the Board quoted from para. 123 of itsdecision in Saskatchewan Government Employees Union v. Regina Native Youth andCommunity Services Inc 21 . as follows:2011 CanLII 72774 (SK LRB)It is clear from the terms of Section 11(1)(e) of the Act that any decision todismiss or suspend an employee which is influenced by the presence of tradeunion activity must be regarded as a very serious matter. If an employer isinclined to discourage activity in support of a trade union, there are few signalswhich can be sent to employees more powerful than those which suggest thattheir employment may be in jeopardy. The seriousness with which thelegislature regards conduct of this kind is indicated by the fact that the onusrests on the employer to show that trade union activity played no part in thedecision to discharge or suspend an employee.[102] In United Steelworkers of America v. Eisbrenner Pontiac Asuna Buick CadillacGMC Ltd. 22 the Board made this observation about the significance of the reverse onus found ins. 11(1)(e) of the Act. In that decision, the Board outlined two elements that the Board mustconsider as follows:When it is alleged that what purports to be a layoff or dismissal of an employeeis tainted by anti-union sentiment on the part of an employer, this Board hasconsistently held, as have tribunals in other jurisdictions, that it is not sufficientfor that employer to show that there is a plausible reason for the decision. Evenif the employer is able to establish a coherent and credible reason for dismissingor laying off the employee…those reasons will only be acceptable as a defenceto an unfair labour practice charge under Section 11(1)(e) if it can be shown thatthey are not accompanied by anything that indicates that anti-union feeling wasa factor in the decision.18 [2004] Sask L.R.B.R. 156, [2004] S.L.R.B.D. No 33, LRB File Nos. 087-04 to 092-04.19 [2001] Sask. L.R.B.R. 131, LRB File Nos. 017-00 to 022-0020 [1996] Sask. L.R.B.R. 575, LRB File Nos. 131-96, 132-96 & 133-96.21 [1995] 1 st Quarter Sask. Labour Rep. 118, LRB File Nos. 144-94, 159-94 &160-94.22 [1992] S.L.R.B.D. No. 31, LRB File Nos. 161-92 to 163-92.
23[103] Also, in The Newspaper Guild v. The Leader-Post, a Division of Armadale Co.Ltd., 23 the Board noted that in making its analysis of the decision, it would not enter directly intoan evaluation of the merits of the decision.For our purposes, however, the motivation of the Employer is the central issueand in this connection the credibility and coherence of the explanation for thedismissal put forward by the Employer is, of course, a relevant consideration.We are not required, as an arbitrator is, to decide whether a particular cause fordismissal has been established. … Our task is to consider whether theexplanation given by an employer holds up when the dismissal of an employeeand some steps taken in exercise of rights under The Trade Union Act coincide.The strength or weakness of the case an employer offers in defence of thetermination is one indicator of whether union activity may also have entered intothe mind of the Employer.2011 CanLII 72774 (SK LRB)[104] The explanation offered by the Employer in this case was, firstly, that thedecision to implement layoffs had been taken prior to commencement of the organizationaldrive, but had been postponed by the Farm Progress Show and the Plant Opening Celebrationsin June of 2011. Secondly, the Employer noted that who was to be laid off was determinedsolely by Ms. Outerbridge and Mr. Riddock based upon length of service, attendance issues,performance issues and level of remuneration. Thirdly, the layoffs were restricted to the grainauger production employees since there were still outstanding orders for grain bins. Finally, itnoted that no new employees had been hired since the layoffs to fill the vacancies created whenthe six employees were laid off.[105] Counsel for the Union argued that other choices could have been made withrespect to which employees were chosen for lay off. As noted in The Newspaper Guild v. TheLeader-Post, a Division of Armadale Co. Ltd., it is not for the Board to determine or secondguess the Employer’s decision respecting the lay off or termination, unless it can be shown thatthat decision was, in itself, motivated by some anti-union animus.[106] In United Steelworkers of America and Brandt Industries Ltd. 24 , the Board hasnoted that “where there is a choice of employees to be laid off, the employer must go furtherand explain why it chose to lay off one employee and not the other.” In that respect, Ms.Outerbridge provided a document 25 outlining the criteria utilized by the Employer for those23 [1984] 1 st Quarter Sask. Labour Rep. 242 at 248.24 Supra, Note 625 See Exhibit E-8
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
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Page 13 and 14: 13credible reason for the disciplin
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
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Page 25 and 26: 25rights under the Act. The Employe
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Page 35 and 36: - 2 -[2] The plaintiff, Susan Chart
Page 37 and 38: - 4 -by the time she finished there
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Page 41 and 42: - 8 -would feel grateful for the fo
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Page 59 and 60: Page: 3[5] In his application, the
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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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