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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 federal and provincial 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 (i.e. flexible work hours policies to accommodate child-care obligations)? Can unions be held jointly responsible with employers for collective agreement provisions that adversely affect employees with 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?
• Family Status: What is "family status?" What are the tests used to determine whether a prima facie case of family discrimination has been established? To what extent will adjudicators scrutinize family arrangements and decide whether they represent parenting "choices" versus parenting "needs" and why does this distinction matter? Does an employer need to accommodate an employee's childcare obligations? Can employees refuse overtime or extra shifts in order to attend to family responsibilities?
• 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? 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?
• 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? What about employers in British Columbia and Alberta, where legislation comparable to PIPEDA exists?
• 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?

In PSAC, Local 0004 v. Greater Toronto Airports Authority (GTAA), prominent arbitrator Owen Shime found that the employer acted unreasonably and in bad faith when it summarily dismissed a long-service employee, in the unjustified belief that she had malingered in staying off work for a week longer than the employer considered necessary. Arbitrator Shime found reinstatement was inappropriate and, instead, awarded $500,000 for past and future loss of income, mental suffering, extended physical pain from the prolongation of her knee recovery, and punitive damages. Lancaster's panel of experts will guide you through the events giving rise to the GTAA arbitration. At critical points you will be presented with the options that were before management. Our panel will facilitate discussion about the following questions that arise out of the GTAA case:

• Does an employer violate its obligations under human rights legislation when it makes assumptions about an employee based on that employee's association with another person?
• When are employers justified in placing employees under surveillance?
• How would you have interpreted the surveillance evidence of the grievor shopping and driving to the airport? What use can employers make of surveillance evidence? Are employers entitled to form their own conclusions about employee conduct based on such evidence or must they consult experts? What is the value of an expert medical opinion when it is based solely on surveillance evidence, not direct examination of the employee?
• Should the employer have demanded an immediate explanation of the surveillance evidence? Should the employer have provided time for the grievor to contact her surgeon and/or family physician? How should employees be confronted with surveillance evidence? What is a reasonable amount of time for an employee to provide medical information to an employer?
• Should notes from medical professionals other than physicians, e.g. physiotherapists, be taken into consideration in determining an employee's ability to work?
• Do you dismiss letters from employees' treating physicians because you consider treating physicians to be biased? Are employers entitled to make such assumptions? Is there any basis for such assumptions?
• How should disciplinary meetings be handled? What right does an employee have to union representation? Does the union need to be informed of the disciplinary nature of the meeting in advance to allow union representatives time to prepare?
• Would you have terminated the employee? When is it appropriate to terminate an employee for dishonesty? What factors should be taken into account when deciding whether termination is appropriate?
• Given the grievor's history of physical and sexual abuse, was it reasonably foreseeable that terminating the grievor without cause would result in significant mental distress beyond what is normally expected?
• Is a collective agreement a contract that confers a psychological benefit?
• Would your decisions result in damages instead of reinstatement? Mental distress damages? Aggravated and punitive damages? What remedies should the union have sought?

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