WINTER/SPRING 2012 SERIES ACCREDITATIONS

Each audio conference has been approved by the Law Society of British Columbia for 1.5 Continuing Professional Development hours.

Each audio conference has been approved by the Law Society of New Brunswick for 1.5 Continuing Professional Development hours.

Each audio conference has been approved by the Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.

CPD for Members of the Law Society of Upper Canada:
1.5 Substantive Hours; 0 Professionalism Hours;
Not accredited for New Members

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WINTER/SPRING 2012 SERIES

Lying, Cheating and Stealing:
What acts of employee dishonesty warrant automatic discharge?

Thursday, February 2, 2012, 12:30 p.m. – 2:00 p.m. EST
Playback Sessions: Friday, February 3, 2012 to
Thursday, February 9, 2012, 9:00 a.m. – midnight EST

Acts of dishonesty are taken very seriously in all workplaces, but is automatic discharge for dishonesty justified? What factors support the termination of employment for dishonesty? What factors support a lesser penalty? What standard of proof does an employer need to establish when a dishonest act is suspected? What if the act occurs outside of work time? What if the employee misconduct stems in whole or in part from a disability? What effect will an employee’s lack of candour have on the appropriate disciplinary response to dishonesty? A panel of experts in this field will discuss these issues and address the following questions:

• Defining Dishonesty: What are some examples of dishonest conduct related to employment? What type of conduct will "irreparably damage" the relationship of trust between the employer and employee such that automatic discharge is warranted?
• Factors Supporting Discharge: What is the impact of the McKinley decision of the Supreme Court of Canada, which holds that discipline must be proportional to the particular form of dishonesty involved? How will an employee’s lack of candour, lack of remorse or unwillingness to accept responsibility affect an arbitrator’s response to discharge? Does an employee have the right to remain silent in the face of alleged impropriety? What inferences, if any, may be drawn from such silence?
• Mitigating Factors Supporting Lesser Sanctions: To what degree do the following considerations mitigate misconduct and support a lesser penalty – Seniority? A dire financial situation? The lack of a prior disciplinary record? Remorse?

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Mistreatment and Abuse of Employees:
What are the consequences? What are the remedies?

Thursday, February 16, 2012, 12:30 p.m. – 2:00 p.m. EST
Playback Sessions: Friday, February 17, 2012 to
Thursday, February 23, 2012, 9:00 a.m. – midnight EST

In unionized workplaces employees have access to the grievance procedure to obtain redress for mistreatment. However, in some cases the mistreatment of an employee may result in the end of the employment relationship, and it may be too painful for the employee to be reinstated and return to the work environment. How should arbitrators calculate damages in such circumstances? If the mistreatment does not lead to termination of employment, what remedies might an arbitrator award? In non-unionized workplaces employer mistreatment of employees can amount to constructive dismissal, but what damages will courts award in such circumstances? When will courts award punitive damages or damages for mental distress or bad faith? A panel of experts will discuss these questions and others, including:

Unionized Workplaces

• Mistreatment: What types of employer conduct have arbitrators found to be mistreatment of employees? Failure to exercise management rights fairly and reasonably? Bullying/personal harassment? Sexual harassment? Does the employer have a duty to act in a manner that maintains the trust and confidence of employees? What is the impact of the breakdown of this trust? What remedies have arbitrators awarded in cases in which employees have been mistreated but remain employed? Given a unionized employee’s ability to grieve mistreatment or harassment by the employer, does the doctrine of constructive dismissal apply in grievance arbitration?
• Reinstatement: Is there a presumption in favour of reinstating employees who have been dismissed without just cause?  What factors should an arbitrator consider when determining whether reinstatement is appropriate? When is reinstating the employee in a different part of the work environment a viable remedy for an employee who has been mistreated?
• Breakdown of the Employment Relationship: In what circumstances have arbitrators found that reinstatement is not an appropriate remedy because the employer's mistreatment of the employee has irreparably damaged the employment relationship?

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Employer-Employee Meetings and Dealings:
When should the union be in the room?
When can management go it alone?

Thursday, March 1, 2012, 12:30 p.m. – 2:00 p.m. EST
Playback Sessions: Friday, March 2, 2012 to
Thursday, March 8, 2012, 9:00 a.m. – midnight EST

It is often difficult to determine which employer-employee interactions require union participation. Can an employer rearrange shifts or allocate overtime without consulting the union? Can the employer unilaterally schedule vacations, take disciplinary actions or issue warnings or reprimands? Should employees have union representation during performance or attendance management meetings? Lancaster’s panel of experts will discuss the scope of union consultation and representation rights. Questions to be discussed include:

• Disciplinary Meetings: When is union representation required at a disciplinary meeting? What is the content of the right? Must an employer advise an employee of the right to union representation? To what extent is the union representative entitled to participate in disciplinary meetings? What can the representative do to protect the employee’s rights? What are the consequences of a failure to allow/ensure the presence of a union adviser? Will disciplinary actions taken without employee representation be void automatically?
• Non-Disciplinary Meetings: Are employees entitled to union representation at non-disciplinary meetings with management (i.e. investigatory, attendance management or performance management meetings)? Where do arbitrators draw the line between non-disciplinary meetings and disciplinary meetings?
• Employers Making Arrangements Directly with Employees: How broad is the prohibition against employers entering into arrangements with employees outside of the collective agreement? Can an individual employee enforce a promise made by the employer directly to the employee? Where the collective agreement allows the employer to award discretionary pay increases or bonuses, can this discretion be used to make "private deals" with select employees?

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"Urine or You’re Out":
The changing law on random drug testing and the alternatives

Wednesday, March 14, 2012, 12:30 p.m. – 2:00 p.m. EDT
Playback Sessions: Thursday, March 15, 2012 to
Wednesday, March 21, 2012, 9:00 a.m. – midnight EDT

Employers have an important interest in maintaining a safe workplace free from employees impaired by drugs. However, employees also have a right to reasonable privacy in the work environment. How can an employer screen for potentially dangerous impairment in a way that respects employee privacy and dignity? In what circumstances will drug testing be appropriate? When, if ever, is screening prospective employees permissible? This program addresses some of the controversies involved in workplace drug testing, including:

• How Drug Tests Work: Is urinalysis the main testing mechanism used to detect drugs? How reliable is urinalysis? Can a test return a "false positive" when an employee has ingested certain food or legal medications? Can a test return a "false negative" if altered by an employee? Can urinalysis confirm whether an employee is actually impaired at the time of the test? Are hair or saliva tests less invasive or more effective alternatives to urinalysis? Is a drug test more intrusive of privacy than a breathalyzer test? Can testing reveal unrelated, private medical information about the employee to the employer?
• The "Balancing" Approach to Drug Testing: When will decision-makers apply the "balancing of interests" approach to determine if employee privacy and dignity outweigh the employer's business interests?
• The "Risk" Approach to Drug Testing: When will decision-makers allow random drug testing on the ground that it is rationally connected to a need to eliminate safety risks in a hazardous work environment? Must the employer demonstrate that drugs are a problem in the workplace before testing is permitted?

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Skimpy Outfits, Piercings and Tattoos:
How far can employers go to protect their image?

Thursday, April 19, 2012, 12:30 p.m. – 2:00 p.m. EDT
Playback Sessions: Friday, April 20, 2012 to
Thursday, April 26, 2012, 9:00 a.m. – midnight EDT

Employers often go to great lengths to create a certain "look" or image for their enterprise. As part of creating that image employers often seek to impose certain standards on the appearance of their employees. Dress codes, for example, are common, but what are the legal limits to an employer’s authority to require an employee to dress a certain way? Can an employer portray a "young and sexy image" by requiring employees to wear revealing clothing? Can employers go further, hiring only employees who fit a particular standard of attractiveness? Our panel of experts will address these controversial issues and others, such as:

• Rules Governing Employee Appearance: When are rules about appearance or dress reasonable? How should the rules balance the rights of employees against the legitimate business interests of employers? Can an employer ever justify a rule regarding appearance if the rule will affect the employee’s appearance off duty? Do the answers to these questions vary depending on whether the workplace is unionized or not? Should it be easier to justify rules regarding dress and appearance for employees who work with children or other vulnerable groups?
• Dress Codes as Bona Fide Occupational Requirements: When will a certain manner of dress be a bona fide occupational requirement as defined by human rights legislation? What kind of health and safety concerns justify dress codes? Infection control? Food safety? Chemical hazards?
• Religion, Dress and Appearance: When will a dress code discriminate against an employee because of his or her religious beliefs? Must the employee prove to the employer that certain clothing is required by her religion, or is it sufficient for the employee to assert that she believes she must dress a certain way? If an employee must wear a certain garment (e.g. a hijab) because of her religious beliefs, can the employer insist on a certain style that fits with the employer’s image? Is there a difference between dress mandated by religion and dress that is a cultural norm? Does such a distinction affect the employer’s duty to accommodate? Is it discriminatory to announce to other employees that a certain employee is exempted from the dress code because of his or her religion? How do adjudicators determine the appropriate balance when religiously-required dress or appearance threatens health or safety in the workplace?

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Stress, Overload and Burnout:
Prevention, Accommodation, Litigation

Thursday, May 3, 2012, 12:30 p.m. – 2:00 p.m. EDT
Playback Sessions: Friday, May 4, 2012 to
Thursday, May 10, 2012, 9:00 a.m. – midnight EDT

Stress is a major issue in Canadian workplaces. While there is broad consensus that Canadians are often "stressed-out" at work and that policies are needed to reduce that stress, some stress is an unavoidable fact of life (and work) and some stress can even be beneficial. How can workplace parties separate the ordinary and beneficial types of stress from disabling stress? How can they  prevent disabling stress in the workplace? And how should employers and unions deal with employees who are "stressed-out?" In this session, Lancaster's experts will address these and the following questions:

• Recognition and Prevention: What is the difference between the stress that is inherent in any job and stress that is harmful to an employee’s health? What do people mean when they talk about burnout? What’s the difference between stress and anxiety? What is the difference between unhealthy stress and post-traumatic stress disorder? What are the common causes of workplace stress? Long hours? Lack of control?  Difficulty balancing work and family commitments? Conflict with co-workers or superiors? What are some signs that an employee is experiencing harmful levels of stress? What can employers do to reduce stress in the workplace? Is a flex-time policy helpful? What are the costs to the employer of allowing stress levels to build-up unchecked? Is failure to address or reduce high levels of stress a breach of the employer’s obligation to maintain a safe and healthy workplace? Does workplace stress onstitute a "danger" justifying an employee’s refusal to work?
• Accommodation: If an employee claims to be too stressed to continue performing his or her normal work or if a physician provides a note saying an employee needs time off due to "stress," how should an employer respond? Is stress itself a disability that must be accommodated? Or, does it aggravate or cause other recognizable psychological disabilities? Does the law recognize a disability arising from the stress of the job itself? What is the extent of the employer’s duty to accommodate when an employee claims that ordinary stress inherent in a job aggravates another recognized disability? If an employee is disabled from performing certain job duties because of personal (non-work-related) stress, what is the employer’s duty to accommodate?  What is the proper response when an employee claims that his misconduct was caused by "stress?" Should the fact that an employee was experiencing stress at the time of the misconduct be an excuse or a mitigating factor in determining discipline? 
• Medical and Psychological Information: What sort of medical/psychological information is required to trigger the duty to accommodate? How detailed must the information be in order to determine appropriate accommodation? Is a precise diagnosis of a particular mental disability necessary before the employer has a duty to accommodate? Is an independent medical exam appropriate as a means of resolving conflicting diagnoses? How should an independent medical examiner be chosen?

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Strikes, Lockouts, Picketing and Work-to-Rule:
What’s the latest law on industrial warfare?

Thursday, May 17, 2012, 12:30 p.m. – 2:00 p.m. EDT
Playback Sessions: Friday, May 18, 2012 to
Thursday, May 24, 2012, 9:00 a.m. – midnight EDT

With governments focused on eliminating deficits, labour conflict looms. While less trouble is expected in the private sector in the coming months, recent private sector labour disputes, such as the US Steel dispute in Hamilton and the Vale disputes in Ontario and Newfoundland, have been long and acrimonious. The resulting climate of labour strife raises the question, "What are the rules when unions and employers clash?" In this session, Lancaster’s experts will venture to answer this question, addressing the following: 

• Illegal Strikes: What are the legal repercussions for a union if it organizes, instigates, or condones an illegal strike by its members? Can a union be found liable for economic damage to the employer resulting from the illegal strike? Can the union be sued by third parties who allege they suffered economic harm as a result of an illegal strike? What types of damages might a union have to pay in such cases? Would punitive damages be available? What is the union’s liability if union members engage in an illegal "wildcat" strike without the involvement of union officials? What actions can a union take to avoid liability for an illegal strike by its members? What are the consequences for individual workers who engage in "wildcat" strikes?
• Work-to-Rule: Can employees "work to rule" if their union is not in a legal strike position? Can unions in "essential service industries" engage in work to rule campaigns?
• Work During a Strike: Can unions fine members who work during a strike or cross picket lines? Will courts enforce such fines? What is the difference between "strikebreakers" and "replacement workers"? What restrictions do different Canadian jurisdictions place on an employer’s ability to use strikebreakers and/or replacement workers during a strike? What are the policy arguments for and against banning replacement workers during strikes?

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$235, plus HST (Registrations must be paid in advance of the audio conference). Registration costs are per listening site/telephone, so you can have any number of people listening at your location for one low price.

When you register, you'll be given a toll-free number to dial at the time of the session and an access code to join the call.