New Brunswick court quashes arbitrators' ruling that random alcohol testing policy at mill was unreasonable
On judicial review. the New Brunswick Queens Bench court has quashed an arbitration board's ruling concerning the reasonableness of a worklace random alcohol testing policy.
In a decision issued November 16, 2009, the majority of the arbitration board had ruled that the policy was not reasonable and thus not enforceable.
The court's decision - which was issued on September 20, 2010 - has not yet been posted to publically accessible database.
However, Toronto lawyer Dan Michaluk has been able to get his hands on the decision and has posted it on his "All About Information" blog:
The United Steelworkers (USW) union issued a news release yesterday in which they reported that the BC Interior Bargaining Committee had reached a tentative collective agreement with the Council on Northern Interior Forest Employment Relations (CONIFER).
Details were not released but in general terms, the USW says that the four-year agreement, which would expire on July 1, 2013, provides for the following: read more »
Dismissed employee can examine immediate supervisor; tort claim against affiliated company allowed to proceed
The decision in Higginson v. Babine Forest Products Ltd., 2010 BCSC 614, concerned pre-trial applications in a wrongful dismissal lawsuit about the following issues:
- which employer representative should be required to submit to an examination for discovery and
- the court's jurisdiction over a US company affiliated with the employer, and a claim against that company for inducing breach of the employment contract.
The plaintiff had 34 years of service and was in a managerial position at a mill when he was dismissed. He was dismissed for failing to perform his duties.
In this decision, the court determined that: read more »
Steelworkers union launches private prosecution against Weyerhaeuser under Bill C-45 Criminal Code amendments
The United Steelworkers ("USW") union launched a private prosecution in BC yesterday alleging that Weyerhaeuser Company Ltd. was criminally negligent in the death of sawmill worker Lyle Hewer on November 17, 2004.
The charges are being brought pursuant to the rarely used 2004 Bill C-45 amendments to the Criminal Code, which were introduced after the deaths of 26 Nova Scotia coal miners at the Westray mine in 1992.
The amendments open the door for a corporation to be charged criminally for not meeting its workplace health and safety obligations.
According to the USW news release:
The charge is based on an allegation that Hewer died as a result of injuries incurred at Weyerhaeuser's New West Division sawmill, after following a supervisor's request to work under conditions the employer knew were hazardous. Hewer was taken to the Royal Columbian Hospital in New Westminster where he succumbed to his injuries. read more »
Discriminatory to dismiss for non-culpable absenteeism months before severance obligations triggered
The decision by the BC Human Rights Tribunal ("Tribunal") in USWA v. Weyerhaeuser, 2009 BCHRT 328 is important and worth reviewing for two key reasons:
- It re-affirms that employers can terminate the employment relationship for innocent or non-culpable absenteeism and provides some guidance on how this can be done through a formal "termination program"; and
- It is a reminder to employers that they can be found to have contravened human rights legislation if they treat employees on disability leave different than active employees when addressing severance entitlements at the time of a permanent closure.
The United Steel-Workers Association, Local 1-423 (the "Union") filed a representative complaint with the Tribunal alleging that four of its members (the "Employees") were discriminated against with respect to their employment, on the basis of physical and mental disability, contrary to section 13 of the BC Human Rights Code (the "Code"). read more »
Despite the employee's sympathetic facts in Lesage v. Canadian Forest Products Ltd.,
2009 BCSC 1427, the BC Supreme Court denied his claims for (1) negligent misrepresentation and (2) constructive dismissal.
The employee started working for Ainsworth Lumber Company Ltd. ("Ainsworth") in 100 Mile House in 2000. He was a divisional accountant or divisional controller.
In the fall of 2006, a representative from another forestry company, Canfor, who knew the employee, contacted him to advise of an opening at Canfor. Canfor ultimately filled this position with another candidate, but subsequnetly discussed with the employee his interest in a Regional Controller position.
The employee was initially not interested in the position because it required living in Fort Nelson. However, in December 2006, Canfor advised the employee that he could be based in Prince George, and that the position would provide him with accounting responsibility for three of its mills. read more »
Constructive dismissal not found where employee waited 2 years to accept employer's repudiation of the contract
In ruling that the 59 year-old management employee in Robertson v. West Fraser Timber Co. Ltd., 2009 BCSC 602, was not constructivley dismissed the BC Supreme Court made the following findings: read more »
BC Supreme Court does not have jurisdiction to undertake, directly, judicial review of labour arbitrators' decisions
A five judge panel of the BC Court of Appeal ruled in Northstar Lumber v. United Steelworkers of America, Local No. 1-424, 2009 BCCA 17, that the BC Supreme Court does not have jurisdiction to undertake, directly, the judicial review of labour arbitrators' decisions.
While the five justices were in agreement on the outcome, separate reasons were written by Justice Chiasson (concurred by Justice Lowry), Justice Saunders (concurred by Justice Levine) and Justice Hall (who concurred with both Justices Chiasson and Saunders).
The underlying facts of the case concerned the dismissal of night watchman at the appellant company's mill. The night watchman was represented by the United Steelworkers. The matter ended up in arbitration pursuant to the collective agreement. The arbitrator agreed that the company had just cause, but substituted a five month suspension for the dismissal. read more »
Mr. Zaitsoff was dismissed without cause from his position as a Production Manager at a pulp mill in Castelgar. He was 46 years old and had worked at the mill for 19 years. He had four people reporting directly to him and 215 indirectly reporting. He earned $142,000 per year.
In relation to the fourth "Ansari" principle, the plaintiff pointed to the lack of available jobs in the pulp and paper industry, particularly in the current economic downturn.
In awarding the plaintiff 20 months, the court stated that while the lack of available employment opportunities resulting from a depressed economy is a factor to be taken into account, it “must not be given undue emphasis”.
Discounted Notice Period
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