Directions to the Westin

BUILDING AN EFFECTIVE DISPUTE RESOLUTION PROCESS: LESSONS FROM A LIFE IN LABOUR LAW

Leading labour and management counsel, together with a prominent arbitrator, will discuss the most significant decisions dealing with critical issues in labour, human rights and privacy law issued 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 and so up-to-the-minute coverage can be assured, but cases to be addressed will include the B.C. Health Services decision and its progeny.

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 will be announced a few weeks before the conference.

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 veracity and implications of the information collected. On this panel an expert in forensic computer investigation and an experienced arbitrator will explore key questions from the digital frontier, including:

• What information is available on computers, servers, telephones (mobile and fixed), 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?
• 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?
• What policies should be in place concerning the monitoring, collection, use, disclosure and destruction of digital data? How can policies be structured to anticipate evolving technology?
• How is the use of technology affecting the way arbitrations are conducted?

The case law concerning workplace discrimination on the basis of family status continues to evolve, as workers increasingly seek accommodation for family responsibilities and employers struggle with the competing interests that come with such requests. While most workers have family obligations that occasionally clash with work, the cases suggest that not every obligation will give rise to the duty to accommodate. Panelists will explore the latest case law and legislative changes governing the accommodation of workers' family and parental responsibilities.

• What is the difference between "ordinary" family obligations, and those which trigger the duty to accommodate?
• What obligations do employers have to accommodate workers' familial obligations? 
• Is the meaning of "undue hardship", as a limit on the duty to accommodate, different in a case involving family status?
• Can workers insist on particular hours of work, shifts, or part-time hours based on childcare or other family responsibilities such as breast-feeding?
• Compassionate care, emergency leave, and family responsibility leave: How do statutory entitlements in different jurisdictions intersect with collective agreement rights?

• "Last chance" agreements: When are they enforceable? To what extent can the parties limit the jurisdiction of an arbitrator to assess cause and/or substitute penalties?
• Zero-tolerance policies: Are these policies consistent with the requirements of just cause? When and how will they be considered by arbitrators?
• Post-discharge evidence: When will it be admitted? For what reasons?
• Criminal or professional discipline proceedings: What impact do they have on the discipline process?
• "Sunset" provisions: When do they prevent prior discipline from being considered?

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 veracity and implications of the information collected. On this panel an expert in forensic computer investigation and an experienced arbitrator will explore key questions from the digital frontier, including:

• What information is available on computers, servers, telephones (mobile and fixed), 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?
• 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?
• What policies should be in place concerning the monitoring, collection, use, disclosure and destruction of digital data? How can policies be structured to anticipate evolving technology?
• How is the use of technology affecting the way arbitrations are conducted?

The case law concerning workplace discrimination on the basis of family status continues to evolve, as workers increasingly seek accommodation for family responsibilities and employers struggle with the competing interests that come with such requests. While most workers have family obligations that occasionally clash with work, the cases suggest that not every obligation will give rise to the duty to accommodate. Panelists will explore the latest case law and legislative changes governing the accommodation of workers' family and parental responsibilities.

• What is the difference between "ordinary" family obligations, and those which trigger the duty to accommodate?
• What obligations do employers have to accommodate workers' familial obligations?
• Is the meaning of "undue hardship", as a limit on the duty to accommodate, different in a case involving family status?
• Can workers insist on particular hours of work, shifts, or part-time hours based on childcare or other family responsibilities such as breast-feeding?
• Compassionate care, emergency leave, and family responsibility leave: How do statutory entitlements in different jurisdictions intersect with collective agreement rights?

Decisions about how to respond to employee misconduct and to tailor appropriate disciplinary penalties have become more challenging in recent years as human rights law and other legal developments have altered traditional approaches. A panel of expert practitioners and arbitrators will discuss the key issues which have attracted arbitral attention.

• "Last chance" agreements: When are they enforceable? To what extent can the parties limit the jurisdiction of an arbitrator to assess cause and/or substitute penalties?
• Zero-tolerance policies: Are these policies consistent with the requirements of just cause? When and how will they be considered by arbitrators?
• Post-discharge evidence: When will it be admitted? For what reasons?
• Criminal or professional discipline proceedings: What impact do they have on the discipline process?
• "Sunset" provisions: When do they prevent prior discipline from being considered?

LUNCH
  12:30 p.m. – 1: 45 p.m.

One of the most important protections enjoyed by employees in unionized environments is the requirement of just cause for termination. When this requirement is not met, arbitrators have a spectrum of remedial options at their disposal.  In recent years the case law concerning remedies at discharge arbitration has become increasingly sophisticated. In this session panelists will examine the most controversial new cases in this important area of the law. Topics will include:

• Damages in lieu of reinstatement: When is it appropriate to substitute damages for reinstatement? Is the substitution of damages becoming more common? How are arbitrators calculating the amount? Does the duty to mitigate apply? What value are arbitrators placing on the loss of collective agreement rights?
• What other forms of damages may be awarded? Mental distress damages for breach of “psychological benefit” contracts? Compensation for bad faith discharge (Wallace damages)? Aggravated and punitive damages?
• What is the difference between severance, termination and notice pay? What effect, if any, does employment standards legislation have on the calculation of these amounts?
• Are interim remedies available in discharge arbitrations? If so, which have been awarded?

• The structure of the multi-union approach to accommodation
• How the parties developed the multi-union protocol
• How they incorporated expedited arbitration and mediation to solve accommodation issues before they became major problems
• The use of agreed-upon medical and testing referrals
• The role of education and training in the accommodation process

One of the most challenging situations in the workplace involves employee conduct which may be both culpable and therefore subject to discipline, and yet non-culpable as a result of a disability. Using a detailed fact scenario (which will be distributed to the audience in advance), an arbitrator, together with union and management counsel, will analyze the complex issues of accommodation and discipline in a hypothetical hybrid case involving a drug-addicted employee. Variations on the facts will further illuminate the grey areas confronting the parties as they seek a fair and practical resolution.

Alberta is a hotbed of developments in the law governing drugs and alcohol in the workplace, as employers increasingly implement workplace testing and drug-use policies, and arbitrators attempt to strike a balance between employees' privacy rights and the employer's interest in maintaining a safe and productive workplace. In this session, experts discuss the latest cases on drug-testing as well as emerging addiction issues in the workplace, including:

• In what circumstances can employers introduce a policy requiring random or universal drug and alcohol testing?
• With respect to pre-access and pre-employment testing, and the testing of casual users, how should the parties deal with conflicting court decisions, e.g. Kellogg Brown & Root (Alberta) versus Entrop (Ontario)?
• Are there special rules for “safety sensitive” industries?
• What consequences can or should be imposed for positive tests or refusals to be tested?  
• Are employees obligated to disclose a drug or alcohol addiction? Can employers institute a workplace drug or alcohol policy that requires mandatory self-disclosure?
• How does the evolving technology around drug and alcohol testing effect what policies can be introduced and enforced? What can we learn from the experts?