 |
Special Evening Event
COCKTAIL RECEPTION
6:00 p.m. – 7:00 p.m.
AN EVENING WITH THE ARBITRATORS: AN INTERACTIVE EVENT
7:00 p.m. to 9:00 p.m.
|
|
| |
|
| |
| Lancaster presents an interactive evening event, with prominent union and management counsel squaring off on real life fact scenarios before a panel of experienced arbitrators. After counsel make their submissions, you will be given an opportunity to discuss your opinions with an arbitrator at your table, and vote your views. The votes will automatically be tabulated and revealed to the audience at the same time as the panel's rulings and the actual grievance outcomes. Always informative, Lancaster's special evening event is not to be missed! |
| |
|
| |
December 4, 2008 |
| |
Introductory remarks by Co-Chairs
8:15 a.m. |
| |
|
Panel 1:
DEALING WITH DRUGS AND ALCOHOL IN THE WORKPLACE
8:30 a.m. to 9:45 a.m.
|
|
| |
| SPEAKERS |
| |
|
| |
| TOPICS |
| |
The last few years have seen a flurry of developments in the law governing drugs and alcohol in the workplace, as employees increasingly seek accommodation for drug and alcohol related disabilities, employers increasingly implement workplace testing and drug-use policies, and arbitrators attempt to strike a balance between employees' rights and the employer's interest in maintaining a safe and productive workplace. Topics to be discussed include: |
| |
|
| |
 When does drug or alcohol use by an employee amount to a disability, giving rise to the duty to accommodate? What should employers do when there is evidence of a substance abuse problem, but the employee has not come forward with any information? |
| |
|
| |
Is the scope of the employee's duty to cooperate in the accommodation process, including the obligation to request accommodation and to provide medical information to support the claim of disability, different in cases involving addiction? |
| |
|
| |
Are employers entitled to dismiss an employee for absenteeism or misconduct where there are both culpable and non-culpable elements of behaviour due to disability? How should human rights considerations factor into decisions on non-disciplinary termination? When will accommodating a substance abuse problem cross the line and become undue hardship for the employer? |
| |
|
| |
When are Last Chance Agreements enforceable? To what extent can the parties, by agreement, limit the jurisdiction of an arbitrator to assess cause and/or substitute penalties? When will arbitrators vary the terms of a last chance agreement? |
| |
|
| |
In what circumstances will human rights complaints about workplace drug-testing policies be upheld? What has been the arbitral response to the introduction by employers of policies requiring random or universal drug and alcohol testing? What impact does evidence of higher levels of drug or alcohol abuse in a particular community have on a decision-maker's review of a workplace policy? |
| |
|
| |
What can drug and alcohol tests tell us? In particular, what can they tell us about impairment and/or the ability to perform particular tasks? |
| |
|
| |
What role can third parties, such as qualified substance abuse professionals and drug-testing experts, play in managing drug and alcohol problems in the workplace? |
| |
BREAK
9:45 a.m. to 10:00 a.m. |
| |
|
|
Concurrent Sessions
10:00 a.m. to 11:15 a.m.
|
|
| |
| Panel 2A: REVISITING FOUNDATIONAL DECISIONS IN LABOUR ARBITRATION |
| |
| SPEAKERS |
| |
|
| |
| TOPICS |
| |
New decisions come down every day, but there are seminal cases that everyone involved in labour relations needs to understand. This session provides an in-depth analysis of leading decisions that continue to influence arbitral jurisprudence. Whether you are new to the field or a seasoned veteran, don't miss this chance to hear the experts discuss what these cases say, why they remain important today and how the principles they established have developed over time. The cases to be discussed include: |
| |
|
| |
Arbitral review of unilaterally imposed employer rules: KVP Co. Ltd. |
| |
|
| |
Assessment of discipline/substitution of penalty: Wm. Scott & Co. Ltd. |
| |
|
| |
Non-compliance with disciplinary procedure: Hickeson-Langs Supply Co. |
| |
|
| |
Non-disciplinary terminations: Edith Cavell Private Hospital |
| |
|
| |
Arbitral authority to interpret and apply employment-related statutes: Parry Sound v. O.P.S.E.U. |
| |
|
| |
The duty to accommodate, bona fide occupational requirements, and undue hardship: British Columbia v. B.C.G.E.U. (Meiorin) |
| |
|
| |
The expanding remedial jurisdiction of arbitrators: Weber v. Ontario Hydro, Polymer Corp. Ltd. |
| |
OR |
| |
| Panel 2B: WHO'S GOT JURISDICTION: LABOUR ARBITRATORS, HUMAN RIGHTS TRIBUNALS OR THE COURTS? |
| |
| SPEAKERS |
| |
|
| |
| TOPICS |
| |
The past twenty years have seen a significant evolution in the relationship between labour arbitrators, human rights tribunals and courts. Arbitral jurisdiction to interpret and apply the general law, and employment-related statutes, previously the purview of courts and other tribunals, has been greatly expanded in a series of landmark court decisions, but there is still great uncertainty about who decides what, and some resistance on the part of arbitrators to accept this expanded role. At the same time the courts' traditional deference to arbitrators seems to be eroding, as the standard of judicial review has been reexamined in a series of decisions, culminating in the recent decision of the Supreme Court to eliminate the standard of patent unreasonableness. This timely panel will examine these developments and assess their impact on the labour arbitration system, discussing such important questions as: |
| |
|
| |
When can tort claims and other claims arising from the common law be adjudicated by arbitrators, and when will the courts retain jurisdiction? |
| |
|
| |
How is the choice of forum decided when both an arbitrator and a statutory tribunal (ie. human rights tribunal, privacy commissioner, etc.) have concurrent jurisdiction over a complaint? |
| |
|
| |
What is the effect of the decision in Seneca College on the jurisdiction of arbitrators, and their willingness, to award damages arising under civil law, for example damages for mental distress, defamation, etc.? |
| |
|
| |
Can breach of human rights legislation amounting to discrimination give rise to a cause of action? Does a "tort of discrimination" exist that will support an independent claim for damages? |
| |
|
| |
Are there significant differences in the remedial approaches taken by courts, tribunals and arbitrators? |
| |
|
| |
What is the significance of the decision of the Supreme Court of Canada in Dunsmuir? Does the elimination of the standard of patent unreasonableness mean that courts will be more likely to overturn or quash the decisions of arbitrators? |
| |
|
| |
How are the goals of the arbitration process – expedition, finality, informality – affected by both the expanding jurisdiction of arbitrators and the changing standard of judicial review? |
| |
|
Break (with refreshments)
11:15 a.m. to 11:45 a.m. |
| |
|
|
Panel 3:
EMPLOYEES IN CYBERSPACE: MEETING THE CHALLENGE OF THE DIGITAL AGE
11:45 a.m. to 1:00 p.m.
|
|
| |
| SPEAKERS |
| |
|
| |
| TOPICS |
| |
Employees have unprecedented access to information in the workplace and easy access to the internet. Employers are increasingly faced with questions about how to monitor and prove employee misconduct in cyberspace, while unions and employees need to understand how to challenge the reliability, as well as the implications, of the information collected. Even arbitrators must struggle with these developments, as they face new evidentiary challenges and uncertain criteria for resolving them. On this panel an expert in forensic computer investigation joins labour relations experts to explore key questions from the digital frontier, including: |
| |
|
| |
What information is available on computers, servers, telephones, the Internet and through biometrics? Where does information linger? |
| |
|
| |
How does one find out what is being said, where, and by whom? About the employer and its brand? About employees or prospective employees? Can employers publish information about employees online? |
| |
|
| |
Can employees be disciplined for views expressed on Facebook, blogs and other internet sites that reflect adversely on the employer or other employees? Does it matter if the employee does not use work time or computers to make the internet postings? |
| |
|
| |
How has technology changed the access employees have to business information and personal information about co-workers? Given the broad distribution capacity of e-mail and e-bulletin boards, what standards have arbitrators placed on employees respecting the privacy of co-workers? |
| |
|
| |
How can information be monitored, captured and preserved so that it is admissible and reliable evidence? What can we know about how information has changed over time? How can the inadvertent alteration of data be avoided? |
| |
|
| |
How is the use of technology affecting the way arbitrations are conducted? |
| |
|
LUNCH
1:00 p.m. to 2:15 p.m. |
| |
|
|
Panel 4:
MAJOR CASE LAW UPDATE
2:15 p.m. to 3:30 p.m.
|
|
| |
| SPEAKERS |
| |
|
| |
| TOPICS |
| |
| Leading labour and management counsel discuss the most significant decisions dealing with critical issues in labour, human rights and privacy law delivered during the past year by arbitrators, courts, and tribunals. The selection of cases for this perennially popular session takes place a few weeks before the conference, ensuring up-to-the-minute coverage of late-breaking decisions. Be sure not to miss this perennially popular panel! |
| |
CONFERENCE ENDS
3:30 p.m. |
| |
|
| |
