Wednesday, November 16, 2022

Statutory law versus the collective agreement, a fun example

When we teach HR and LR students about the web of rules that regulate employment, we often focus our attention on the various sources of rules (e.g., common law, statutory law, contracts and collective agreements). This reflects that students need to (1) build a mental framework in order to understand how employment law operates and (2) develop some foundational knowledge of what the rules actually are (e.g., what are the basic rules around firing someone?).

One of the topics that gets glossed over in this sort of introduction is that, sometimes, what the law means (in practice) isn’t clear. Or, at least, an employer and worker/union might have a different interpretation of what the law required or permits. This can reflect legitimate differences of opinion, differing interests, and, sometimes, apparent conflict between rules from different sources of law. In the interests of time (and understanding that a survey course is just an introduction), we tend to wave this complexity aside with “disputes are remitted to an adjudicative body for resolution.”

Sometimes, it is worthwhile having a look at a case to see just how this adjudication works. As part of a research project, I came across an interesting arbitration decision from 2009 that is a fun read. The decision is:

Edmonton Space & Science Foundation v Civic Service Union 52, 2009 CanLII 90156 (AB GAA)

You can find the decision on by searching the CanLII number (90156). CanLii is an excellent repository of Canadian law.

The basics facts are these:
  • A worker was employed at the Edmonton Space and Science Centre and was a part of a union.
  • The collective agreement permitted the employer to terminate a worker only when the employer had just cause. This is much more restrictive than the termination provisions set out in the Alberta Employment Standards Code (wherein workers can be sacked for no reason so long as notice is provided).
  • The worker resigned, giving a month’s notice. The employer doubted how diligent she would be in performing her duties during the resignation notice period and purported to terminate her with one week’s notice under the Employment Standards Code.
  • The worker grieved that the employer had no right to do so, given the collective agreement limited terminations to just-cause scenarios.
So, we have here basically a fight over whether the collective agreement trumps the Employment Standards Code or vice versa. After listening to the evidence and arguments of the parties (including refereeing a preliminary bun fight, where the employer wanted (among other things) to force the worker to narc out which member of the management team leaked that the worker was getting the sack), the arbitrator distilled the matter down into two questions (he listed three slightly different questions, but they are more granular than we care about):
  1. Was the griever terminated without just cause by the employer?
  2. Can the employer rely upon the Employment Standards Code to override its obligations under the collective agreement?
I won’t spoil the ending, except to say that (1) the employer’s argument was more inventive that I would have guessed (at the beginning of the decision, I laughed aloud at the employer’s position), and (2) the arbitrator does a good job of walking everyone through his thinking about how these two different sources of rights operate in this particular fact situation and how their seeming conflict can be resolved.

This decision is a good example of how employment-law sausage is actually made when the parties can’t agree and when there are multiple sources of rights that may conflict.

-- Bob Barnetson

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