Service and LRT Inspectors: NOT e/ee Incident reports may affect operators 50 performance appraisals per year Recommendations accepted 98% of time (effective recommendation) Contractor exception Sagaz Industries 2001 SCC 1. Determining: E/ee or Contractor Contractor factors (not exhaustive) Control: operational control Ownership of equipment Ability to hire helpers Degree of financial risk Responsibility for investment and management Opportunity for profit Midwest Pipeline 1990 AB LRB Certification Application: rig welders incorporated (sole proprietor) and unincorporated Officer held: incorporated rig welders were not included bc a corporation can not be an e/ee Held: Both: e/ee owning own tools did not suffice to make them contractors incorporated welders: corp is just a vessel not actually i/c of renumeration Code can’t apply to corporations but MAY apply to sole proprietors Hired w/out bidding, used own equipment, no requirement of proof of bonding or insurance, hourly rate, e/er provided materials, no holdbacks in case of poor work, only paid if worked, no ability to subcontract E/er: hired, fired, hired helpers, set work hours, directed work and established rules, disciplined, operational control Montreal Locomotive factors Control, ownership of tools, chance of profit, risk of loss Adams factors: E/er Direction and control Burden of remuneration Hiring Imposing discipline Dismiss Perceived as e/er Intention to create e/er relationship
Nor-Man Regional Health v MAHCP 2011 SCC E/er general practice to not count time as “casual e/ee” toward service for determining vacation level provided by CA Arbitrator held: CA granted casual e/ees vacations rights BUT union estopped from relying on strict language of CA Estoppel bc: e/er had been operating in this manner for some time and union had not objected Standard of review for arbitrations is reasonableness except for questions of general importance to the legal system of Canada or true questions of jurisdiction Issue of estoppel not of general importance to Canada Labour arbitrators competent and given broad mandates to apply legal/equitable principles Continuing e/ment relations requires arbitration sensitive to parties interests Application: Arbitrator’s decision was reasonable Arbitrator’s reasons were intelligible, transparent, and coherent Arbitrator not required to apply legal test for estoppel in the same manner as courts Arbitrator must apply estoppel in a manner consistent with labour relations legislation, the principles of labour relations, the nature of the collective bargaining process, and the particular grievance Management’s Rights clause reserving all rights to manage business except as limited by the agreement If not explicit in CA they are often implied Exercise of management’s rights have been regulated by arbitrators WM Scott & Company v CFAW 1977 Can LRBR Facts: E/ee made negative comments re: e/er to media and was terminated Majority of Arbitration board held: intentional defamation and upheld termination Union appealed to BC Labour Relations Board Issue: Application of new legislation that allows Board to substitute forms of discipline Common law concepts of termination do not apply when there is a CA Employer can’t unilaterally terminate the employee with notice or pay in lieu thereof BC Legislation overrules SCC decision in Port Arthur Shipbuilding that says that if the employee had given some cause for discipline arbitrators have no jurisdiction to overturn employer’s decision on discipline imposed Arbitrators have power to substitute another form of discipline Issues in discharge grievance: Has the employee given just and reasonable cause for some form of discipline Was the employer’s decision to dismiss the employee excessive If discharge was excessive, what alternative should be substituted Factors to consider to determine whether discharge appropriate: Seriousness of the offence Premeditated or momentary lapse of judgment Employee’s length of service Disciplinary history Consistency of discipline Others added by subsequent case law: economic hardship, provocation, remorse