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Introductory remarks by Co-Chairs
8:45 a.m. – 9:00 a.m.

Prominent counsel will review important decisions delivered in the past year by arbitrators as well as legislative developments and judicial consideration of arbitration awards.  Our experts will identify the trends that are developing in arbitral jurisprudence and flag contentious issues that may be the focus of significant litigation in the near future. The selection of cases for this session will take place a few weeks before the conference, ensuring up-to-the-minute coverage of late-breaking decisions.

Accommodation is a perennially challenging issue for employers, unions and employees, and since Parry Sound accommodation issues have occupied significant arbitral resources. The duty to accommodate is particularly difficult when it comes to accommodating employees with mental disabilities and those with significant family obligations. In this session, Lancaster's panel of experts will explore the following issues in accommodation:

• Key Elements of a Sound Accommodation Policy: What essential factors should be taken into account in developing accommodation measures (e.g. nature of disability, job restrictions, availability of alternative work, feasibility of reorganizing the workplace, etc.)? Are employers required to implement policies that help employees to achieve work-life balance (e.g. flexible work hours policies to accommodate child-care obligations)? When will unions be held jointly responsible with employers for collective agreement provisions that adversely affect employees with mental disabilities or significant family obligations?
• Undue Hardship: What criteria should be considered in delineating the extent to which accommodation efforts must be made (e.g. impact on health and safety, productivity, seniority provisions, etc.)? To what extent are unions and employers able to define ‘undue hardship’ in collective agreements or last chance agreements? In cases of disabled workers in safety-sensitive workplaces, how can the duty to accommodate be reconciled with concern for the safety of both the disabled employee and other workers? When does an adverse impact on production constitute undue hardship? Can the employer argue that the number of employees who may seek a similar accommodation amounts to undue hardship?
• Attendance Management: What elements of an attendance management plan will be deemed objectionable by arbitrators? Must the policy distinguish between culpable and non-culpable absences? Can the absence of an employee on LTD or due to occupational injury be included? Are automatic or deemed termination provisions ever acceptable? Are incentives for exceptional attendance permissible? What provisions must be made for medical appointments, emergency leave, elder care or child care? Can innocent absenteeism due to family emergencies warrant discipline?
• Performance Management: What types of performance issues must an employer accept? Must an employer accept different performance or attendance standards for employees with mental illness and/or addictions?
• Union Representation: In cases where the collective agreement provides for union representation at meetings with management, does this extend to non-disciplinary meetings? What if a non-disciplinary termination is discussed at the meeting? Do rights to union representation exist in the absence of express collective agreement provisions?

Responding to employee misconduct has become more challenging as human rights law and other legal developments have altered traditional approaches. Employer discipline policies, including those with zero tolerance or specific penalty clauses, have come under scrutiny for inflexibility, inconsistent application and failure to comply with the principles of just cause. The increased use of social networking and the enactment of legislation addressing personal harassment have also given rise to new concerns regarding discipline. In this session, expert practitioners will discuss the key issues which have attracted arbitral attention, including:

• Discipline Policies Generally: What are the features of an acceptable progressive discipline policy (and what cannot be part of a discipline policy)? What roles do correction, deterrence and rehabilitation play in determining appropriate discipline? What factors are relevant in assessing discipline and how much weight should be given to each factor? (e.g. nature of offence, culpability, length of service, disciplinary record, correction, deterrence, rehabilitation, punishment, provocation, aberration, acknowledgment, remorse, consistency of treatment, candour, risk of recurrence, post-discharge evidence) Must employers in the federal sector limit the length of time discipline records remain on an employee’s file in order to comply with PIPEDA?
• Exceptions to Progressive Discipline: What type of conduct, if any, displaces the assumption that an employer must use progressive discipline? When, if ever, are “set penalties,” including discharge, appropriate?
• Alternatives to Discipline: What are some alternatives to formal discipline? When is it appropriate to use these alternatives?  If disability is a factor in the misconduct, what kind of accommodation is required by human rights legislation? By the arbitral jurisprudence? "Best-practice" corporate policies? What evidence is required to establish a nexus between a disability and misconduct?
• Off-Duty Conduct: When will arbitrators find a sufficient connection between an employee’s off-duty conduct and the employee’s work to warrant discipline or discharge? Can an employer discipline an employee for negative comments made about the employer on a blog or on a social networking website if the comments are not posted during working hours? Do the privacy settings on a social networking site make a difference?
• Employee Conflict: How should management respond where two employees accuse each other of aggressive or harassing behaviour?  What are the union’s obligations when two union members come into conflict?  If an employee disparages another employee on Facebook or through other social media, does the employer have the authority and/or responsibility to intervene? What about the union?
• Disciplining Union Officials: What actions take a union official outside the bounds of immunity from discipline accorded to union officials acting in the course of their union duties? Public criticism of the employer? Bullying employees during an investigation?
• Union Representation: At what stages in the discipline process are union representatives entitled to be present (e.g. initial questioning, investigation, disciplinary meeting)? Are grievors allowed to choose the union representative? What are the union's obligations in representing an employee? Should arbitrators void the discipline when union representation clauses are violated? Or, should they assess the degree of prejudice to the employee to decide if any remedy is appropriate?

Assessing credibility is a fundamental part of an adjudicator's work, often determining the outcome of a case. However, this task cannot be reduced to an exact science and the many subjective factors that go into weighing credibility – including demeanour, consistency in testimony, appearance of bias, and character – mean that triers of fact can come to very different conclusions about witness credibility. At the same time, there are strategies for bringing rigour to the process of credibility assessment, with a view to minimizing reliance on stereotypes. In this novel session, a video will be shown of simulated testimony in a robbery case, following which attendees will be asked to assess the witnesses' credibility. The session will conclude with a discussion of problematic areas in eyewitness evidence, as well as various techniques and tools available to avoid the pitfalls in witness credibility assessment.

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