The Grievor’s urine tested positive for cannabis metabolites following an incident. The Employer required him to attend an examination with an employer-selected physician, submit to a year of random drug tests, and suspended him for 10 days. The Arbitrator held that none of the Employer’s actions were justified and ordered that the Grievor be made whole, including by awarding $15,000 in privacy damages.
Gibraltar Mines Ltd. v. British Columbia (Human Rights Tribunal), 2022 BCCA 234
Lindsay A. Waddell of Moore Edgar Lyster LLP and Heather Hoiness of the Office of the Human Rights Commissioner of B.C. successfully represented the Commissioner in an application for leave to intervene in the B.C. Court of Appeal. The appeal concerns the proper interpretation of family status discrimination under the B.C. Human Rights Code. The Chambers Justice agreed that the Commissioner has a unique and broad perspective and that her participation in the appeal on the statutory interpretation issue would be of assistance to the Court. Lindsay and Heather will also represent the Commissioner at the upcoming appeal.
Vancouver Shipyards Co. Ltd. v CMAW, Local 506 Marine and Shipbuilders, 2022 CanLII 51909 (BC LA)
The Union grieved the Employer’s decision to order the Grievor to undergo post-incident drug and alcohol testing.
The arbitrator held that the drug and alcohol testing was not justified in the circumstances and was a violation of the Grievor’s privacy and bodily integrity rights.
The incident, in which the Grievor accidentally caused a large aerial work platform to contact another machine at low speed, did not rise to the level of a “significant event" as defined in the Employer’s policy and the jurisprudence. There was no significant damage and there were no injuries. The Employer’s speculations that someone could have been injured or there could have been significant damage to property of the Company were very remote possibilities and worst-case scenarios. During the investigation, there was nothing in the Grievor’s responses that would have rationally led to the conclusion that impairment played any role in the incident.
The arbitrator held that testing cannot be used when the only justification is ruling out the possibility of impairment. The Grievor was awarded $1000 in damages.
Pacific Honda v. International Association of Machinists and Aerospace Workers, Local Lodge 1857
The Union grieved the Employer’s failure to recognize National Day for Truth and Reconciliation as a designated statutory holiday under the Collective Agreement.
Arbitrator Saunders agreed with the Union’s argument that National Day for Truth and Reconciliation is a statutory holiday under the collective agreement, and ordered the Employer to recognize it as such, and to compensate the employees for the losses occasioned to date. The Arbitrator applied well-known collective agreement interpretation principles to conclude that the phrase “forced by legislation to close its operation” cannot be read in its literal sense. Therefore, the phrase must be a description of the legislative context in which businesses either close, or pay wages at a premium, given the legislative context in which the collective agreement exists.
Finning (Canada) v International Association of Machinists and Aerospace Workers Vancouver Lodge 692 (COVID-19 Vaccination Disclosure Policy), 2022 CanLII 25773 (BC LA)
After the Employer implemented a COVID-19 Vaccination Disclosure Policy requiring that employees either disclose that they had been fully vaccinated against COVID-19 or show proof of a negative Rapid Antigen Test, the Union grieved the aspects of the Policy which required employees to pay for their own rapid tests and conduct the tests on their own time.
Arbitrator Southern upheld the Union’s grievance with respect to the cost of the tests. She found that the Employer should bear the cost of rapid tests for multiple reasons, including that rapid tests were analogous to a required “safety item” under the Collective Agreement for which the Employer had agreed to pay. However, the Arbitrator found that the time required to take a rapid test was not a significant enough demand on an employee’s personal time to warrant compensation.
Accordingly, the Arbitrator declared the aspect of the policy requiring employees cover the cost of rapid testing to be invalid and ordered the Employer to compensate the employees affected by making them whole with respect to those expenses.
Earl's Industries -and- Marine Workers and Boilermakers Industrial Union, Local No. 1 (National Truth and Reconciliation Day Grievance)
The Union grieved the Employer’s failure to recognize National Truth and Reconciliation Day, observed on September 30, as an additional statutory holiday pursuant to the Collective Agreement.
The Arbitrator agreed with the Union’s argument that National Truth and Reconciliation Day satisfied the language in the Collective Agreement in that it was “generally celebrated in the area.” The evidence established that the holiday enjoyed wide acceptance and celebration within a geographical area relevant to the Employer. As a result, the Arbitrator held that employees who worked on National Truth and Reconciliation Day were entitled to the same conditions as the statutory holidays listed in the Collective Agreement, including eight hours holiday pay at straight time plus double time for work on that day.