University of Montreal strike ended

It's back to school for U de M students. The Montreal Gazette reported over the weekend that a tentative deal had been reached:

The Université de Montréal and the union representing its 2,433 striking lecturers have reached a tentative agreement, both sides in the labour dispute announced late Thursday.

Interestingly, no details on the deal were released in any of the Montreal-area newspapers.

Harassment is prevalent - and avoidable

This article was published by the Montreal Gazette on April 8, 2010. It discusses psychological and sexual harassment in the workplace.

Click to read more ...

Can a union be responsible for acts of striking members?

It's an interesting question. For example, if striking union members decide to vandalize the property of their employer, can the employer file suit against the union to seek reparations? On February 18, 2010, the Supreme Court of Canada discussed the issue when it rendered Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 (CanLII).

During a violent strike at the Giant Mine in Yellowknife, in the Northwest Territories, a striking employee succeeded evaded security and entered the mine where he planted explosives which killed 9 replacement miners. The families of those miners sued the mine owner, the security company and the government for negligence. They also sued the national union of the striking workers, some union officials and members of the local union for failing to control the striker and for inciting him.

The Supreme Court held that that national union was not the same legal entity as the local union and did not exercise any control over it and was therefore not liable. With regard to the liability of the unions, the Supreme Court held that it too was not liable:

[155] ... There was no finding of any common design between Mr. Warren and CAW National to murder the miners and no finding that the murders were committed in direct furtherance of any other unlawful common design between Mr. Warren and the union.   CAW National cannot be found liable as a joint tortfeasor with Mr. Warren on the basis that it acted with him in furtherance of a common design.

The Supreme Court explains that that there must be a "common design" between the union and the perpetrator for there to be joint liability. This is was not the case here. However, if a union were to incite its members to commit violent or illegal acts, it follows that they could be jointly responsible for the results.

Is the human rights complaint system out of balance?

In an interesting column published in the National Post on April 3, 2010, Rex Murphy discusses his view of human rights complaints and legislation gone awry. The case at the foundation of his comment involves Zesty's night club and a comedian. It appears that the comedian heckled a patron who had heckled him. Mr. Murphy questioned the legitimacy of the complaint and the B.C. Human Rights Tribunal's decision to hear it:

Is Canada a serious country? Do we staff close to a dozen offices, provincial and federal, spend nearly $200-million across the great expanse of the country, to explore the human rights implications of rude heckling in comedy clubs? Or, the human right to undress in the locker room of your choice? For this, did the great armies of the West storm the beaches of Normandy? For this, did Solzhenitsyn and Sharansky endure their endless nights of hell in the gulag?

However, Mr. Murphy does recognize the importance of human rights legislation in general:

The core concept of human rights is the protection of the irreducible safety and dignity of the individual from the massive and arbitrary power of the state. Not, the state wandering in, with its apparatus and procedures, its boards and tribunals into the doings, or speech, of the individual. This is what the Guy Earle case, in its triviality -- it's about heckling, remember -- upends. It perverts the name of "human rights," earned in blood and suffering in circumstances of utter consequence and unspeakable misery.

Can heckling constitute a human rights violation? Can a patron who knowingly enters a comedy club file a complaint if they don't like the kind of humour coming from the mike? Rex Murphy may be right.

Can an employer force an employee take training and make you pay for it?

In Chayer c. Atelka inc., 2010 QCCRT 128 (CanLII), a recent decision by the Quebec Commission des Relations de Travail (CRT), it was held that an employer could not force an employee to take a course and then sign a document authorizing the employee to deduct the cost of that training from their pay if certain conditions were met.

The Complainant, Marie-Éve Grenier Chayer, was offered, though her employer, a position as a customer services representative for another company. The employment contract provided that she be paid at the minimum wage for her three-week training period. It also required that if she left the position or was terminated within 16 weeks of taking the position she would have reimburse the employer the cost of the training in an amount which was reduced every week she continued her employment. She refused to sign this agreement and was terminated as a result.

Section 85.1 of the Labour Standards Act provides as follows:

85.1. […]

The employer cannot require an amount of money from an employee to pay for expenses related to the operations and mandatory employment-related costs of the enterprise.

It was held that "repayment clause" in her employment contract was in violation of s. 85.1 in that the training offered was in no way "portable" and was only useful for that particular employer:

[27] Dans le cas qui nous occupe, la même conclusion s’impose. En effet, non seulement cette formation dispensée aux agents n’est-elle pas susceptible de leur profiter ailleurs, mais elle ne vaut que pour une campagne donnée chez leur employeur, tout étant à recommencer chaque fois qu’une campagne prend fin et qu’une autre s’amorce. Force est de conclure que la « clause remboursement » en question contrevient à l’article 85.1 de la loi et que l’intimée n’avait pas le droit d’exiger sa signature.

Accordingly, the Complainant's termination was reversed. The lesson for employers is that while they can oblige an employee to undergo and pay for training, this training must be useful outside of the workplace.