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This program has been accredited by the Law Society of Upper Canada towards the professional development requirement for certification.

Labour Law             5 hours

Public criticism of an employer by an employee can have a significant negative impact on the employer's business and reputation, and with the explosion of the web as a forum for airing grievances, these effects are increasingly difficult to contain. On the other hand, there is a limit to the constraints an employer may place on an employee's free speech. How do arbitrators balance these interests? In this session, Lancaster's panel of experts will discuss the latest case law on public criticism of the employer and will address the following issues:

• Duty of Loyalty: How do arbitrators balance an employee's duty of loyalty to an employer with the employee's right to freedom of expression? Does it matter whether the employee works for the government or for a private employer? What disciplinary measures have been upheld in relation to an employee's inappropriate criticism of an employer?
• "Public": When will a statement made by an employee be treated as having been made to the "public," as opposed to in the course of a private communication? Can employees be disciplined for criticism of the employer voiced to co-workers? Can an employee be disciplined for spreading false rumours about the employer? What steps are employees required to take, if any, to resolve an issue internally prior to going public with a complaint or allegation? What if the allegations relate to alleged criminal activity by the employer?
• Use of the Web: Can employees be disciplined for views, critical of the employer, expressed on Facebook, blogs and other internet sites? Does it matter if the employee does not use work time or work computers to make the internet postings? When employees blog about their views of the workplace, might they also be breaching duties of confidentiality vis-à-vis their employer, co-workers or others?
• Union Criticism of Employer: Can employers discipline union officials who publicly criticize them in relation to collective bargaining matters? Does it matter whether statements are made during the life of a collective agreement or during negotiations when a strike would be lawful?
• Policies: What kinds of policies should an employer have in place to protect its reputation? What kinds of restrictions can an employer place on employee use of the internet? What safeguards should be put in place to ensure employees' and union officials' constitutional rights are protected?

During this lunchtime debate, leading practitioners will debate current controversial issues in the field of labour arbitration. The focus will be not on what the law is, but on what it should be. Attendees will be asked to express their views regarding the issues under debate.

• Is Justice at Arbitration Unduly Delayed and Complex?: Is arbitration at risk of becoming dysfunctional?
• Religious Clothing and Symbolism in the Workplace: Accommodate or abolish?

The remedial powers of arbitrators have expanded significantly to enable them to order remedies that are durable and effective. Do recent decisions signal that damage awards are likely to increase in the future? This session will examine these and the following issues:

• Damages: What forms of damages may be awarded? Mental distress damages for breach of a "psychological benefit" implicit in the collective agreement? Compensation for bad faith discharge? Aggravated and punitive damages? Does jurisdiction to award aggravated and punitive damages depend on the express language in the collective agreement? In what circumstances will arbitrators award damages for violations of the intrinsic value of a protected right? When do arbitrators have the authority to award tort damages – such as for defamation and negligent or intentional infliction of mental distress?
• Statutory Breaches: Can arbitrators award systemic remedies under human rights legislation? What is the scope of an arbitrator's jurisdiction to award statutory remedies? What effect does employment standards legislation have on the calculation of severance, termination and notice pay? Should the calculation of severance pay be based on both paid and unpaid time? When will arbitrators order employers to pay damages in respect of violations of health and safety legislation? Will an arbitrator award damages for a workplace injury that would be covered by workers' compensation benefits?
• Implied Obligations: What are the implications of a finding that there is an implied obligation on the employer not to destroy or seriously damage the relationship of confidence and trust between employer and employee?
• Quantum: Are there limits on the amount of damages that can be awarded by arbitrators? What impact, if any, will the GTAA decision of arbitrator Owen Shime have on the future size of arbitration awards?
• Interim Remedies: Are interim remedies available in discharge arbitrations? If so, what remedies have been awarded?
• Reinstatement and Damages in lieu of Reinstatement: When is it appropriate to reinstate? To substitute damages for reinstatement? What scale has been adopted by arbitrators in assessing such damages?

Maintaining work-life balance is integral to the welfare of employees and the success of the workplace. However, as the population ages, and work and family-care responsibilities increase, it is becoming more difficult for workers to juggle employment and family obligations. What family obligations are protected by human rights and labour standards legislation? Is the assessment of "undue hardship" different in an accommodation case involving family status? This panel will address these and the following issues:

• Legislation: What rights, in relation to family and other personal responsibilities, do employees have under human rights and labour standards legislation? Where legislation provides that superior collective agreement benefits prevail, in what circumstances do arbitrators consider that leave provisions in collective agreements are in fact superior to legislated standards?
• Leaves of Absence: When does denial of a leave of absence constitute discrimination on the basis of family status? Can denial of promotion to an employee who is on a leave of absence constitute discrimination? What are the job rights of employees on their return to work following a leave of absence? When does refusal to re-employ a worker following maternity or parental leave breach employment standards or human rights legislation?   If an employee’s position is reclassified to a higher pay scale during leave, is the employee entitled to have his or her parental leave benefits readjusted?  Compared to biological parents, what rights do adoptive parents have to leaves of absence? In what circumstances can employees take sick leave due to family-related stress or anxiety?
• Discrimination: What tests do adjudicators use to determine whether a prima facie case of family status discrimination is established? What types of workplace standards or rules have been held to be discriminatory on the grounds of family status or pregnancy? Which are considered bona fide occupational requirements? Can employees refuse to work overtime or extra shifts, without facing sanctions, in order to attend to family or personal responsibilities? How are accrual of benefits, seniority, vacation, and pensions affected by leaves of absence? Is workplace stress considered a disability under human rights legislation?
• Accommodations: Must employers accommodate employee requests for time off to attend to family responsibilities? What factors do adjudicators look at to determine whether an employer has accommodated employee circumstances to the point of undue hardship? Financial strain? Absenteeism rates? Scheduling difficulties? What does the procedural component of the duty to accommodate encompass? At what point does innocent absenteeism, due to family emergencies, warrant discharge?
• Preventive Policies and Programs: What types of "family-friendly" or "flexible" collective agreement provisions, policies and programs can workplaces implement in order to address work-life balance issues? For example, flexible hours, telecommuting, job-sharing, part-time work, leaves of absence, in-house daycare, and cafeteria-style benefits.  Have these worked in reducing employee stress and absenteeism rates? What difficulties can these arrangements pose for employers in terms of costs and organization, and how can these difficulties be addressed?  What can unions do to reduce work-life conflict for employees?