Legal Strikes and Illegal Strikes Under Labor Law
Q1.Legal strikes and illegal strikes are dramatically different in terms of how they are viewed in Labour Law.Discuss.
(5 marks) Section 1 (1) of the Labour Relations Act, 1995 defines “a strike as a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output”.
According to the “Labour Relations Act, 1995” the strikes are legal only if some preconditions are met such as the collective agreement must have expired, a strike vote must have been held and 50% of the members are in favour of the strike, and a conciliation officer must have been appointed. All the employees covered under Labour Relations Act, 1995 are not lawfully permitted to strike e. g. ospitals, and nursing homes and Toronto Transit Commission do not have the right to strike. Some departments like fire fighters and police are not subject to the above-discussed law and have their own legislations. If a union is not adhering the law the strike can be charged as illegal and the participants are subject to discipline. The employer can request the board for cease immediately and if the orders are disobeyed, court injunction can occur.
The breech of court orders can result in fines and jail sentences and employers can also sue the individuals or unions for the damages. The union leaders can be charged and held responsible for the consequences of the strike. Considering the differences of legal and illegal strike, as defined above by law, it can be argued that legal strikes and illegal strikes are dramatically different in terms of how they are viewed in Labour Law. Question 2: How should Bob begin to address this situation? (5 marks)
Bob Graham a newly appointed Labour Relation Manager has been directed by the management to get rid of the chief union steward Peter who is known for absenteeism (missed over 100 shifts), coming late to work (53 times), do not advise his supervisor about being absent (25 occasions), low performance at work, breath smells of alcohol on a regular basis (serious infraction), unpredictable mood swings and disruptive behavior to entire workforce. The complaints have been made by the employees to the management about Peter’s bsenteeism, attitude and performance but all in vain. Employees who habitually absent from work or come late are subject to discipline. Absenteeism in the plant averages six shifts a year whereas, Peter has missed one hundred shifts which is way more than the plant average therefore should be subject to discipline with a series of warnings and ultimately should be discharged. Although there are several concrete evidences and complaints about Peter’s misconduct at the workplace, his disciplinary record is clear.
The reason for this, described in the case study, is very obvious, management views Peter as someone to fear, as the company occurred a hefty financial loss as a result of a successful illegal strike lead by him. Bob is in a very critical position as he is new to the organization and that there is no record of Peter’s misconduct at the workplace. He has not been issued any verbal or written warnings. Therefore he should be very careful in whatever actions he take against Peter.
He should start an official, fair and objective investigation against Peter and should involve other senior management members too. The major issue faced by Bob is that apart from the clear evidences of Peter’s misconduct in the workplace there are no disciplinary reports against him. Bob should first develop a relationship of trust with the employees in the organization as a credible HR manager. Bod in normal situation would consult union steward and Peter’s immediate supervisor to discuss the issue. As Peter is the union steward, it can be hard for him to involve union effectively.
Therefore he should keep the evidences like his attendance, his behavior with others and should conduct interviews with the employees who have been complaining about his behavior and have substantial amount of documentary evidences by taking as many witnesses as possible. Because Peter is the chief steward of the union and has been occurring substantial financial losses to the company, it is worth hiring a third party to do the investigation for Bob. After he is collected concrete evidence against him, he should conduct an interview with Peter in the presence of another senior management member and address the issues.
Peter should be given verbal warning followed by the written warnings. He can repeat the written warnings if required so that the disciplinary action can be escalated to the next level. If Peter finally does not correct his behavior, which most likely seems to be the case, he should be suspended without pay fro 1 to 5 days. After that if he still does not change his behavior, he is subject to be terminated with cause. Question 3: If Peter is discharged, what arguments would the company lawyer use at arbitration? (10 marks)
If the management decides to discharge Peter, he using his power will take the disciplinary action to attribution where the union will try to show that management did not have cause to the disciplinary action against Peter. Company lawyer in this case should have real evidences against peter so that management can attempt to prove how the action taken was crucial for business. Peter committed some serious offences like drinking at the workplace and the clear disciplinary record the he has “irreparably damaged the employment relationship with the employer” (Module 5).
The contract between an employee and employer, which says that employee will carry out tasks according to the directions given and would adhere the established standards personally and professionally in return of the payment he gets from employer. The lawyer should talk about management rights in collective agreement, which outlines that the management has the right to fire the employees who are subject to discipline and poor performance to run the business smoothly. The lawyer should provide the substantial documentations Bob prepared while investigation and warning stage.
The lawyer should also emphasize if discipline is a required function on the management’s mandate to preserve stability in the workplace. Talking within the context of discipline the argument should be made by the lawyer about how Peter’s absenteeism significantly and progressively exceeded the plant average and that the behavior was not altered by him after a series of communication with him in making an effort to close the gap between his performance and the established standards of the organizations.
While highlighting the causes of discharge such as, 100 missed shifts, 53 late arrivals and 25 occasions of not advising the supervisor of his absence, the argument should also be made about as to how Peter was able to influence management using his power not to make a report on his disciplinary record. Considering his involvement in the serious infractions such as drinking at the workplace and harassing the co-workers psychologically it can be argued that his actions did not meet the mandatory standards established by the organization. No formal apology by Peter to the management can also be a significant argument for the company lawyer.
As defined in module 5 “Discipline can include termination with cause for serious infractions or infractions which have followed lengthy disciplinary records”, Peter is subject to both which provides a logical cause to the action taken against him. Q 4. What arguments would the union lawyer make in response? (10 marks) The work record, seniority, age, re-employability, company rules, duty to accommodate, the economic climate and his reputation as a union leader will be the key arguments by the union lawyer in response to the company lawyer.
Peter’s seniority and clean disciplinary record suggests that the union lawyer has a strong argument to make. Peter’s length of service with the company would provide the union lawyer an edge over the company lawyer as in the union-represented workplaces senior employees have significant rights and seniority derives almost all of the decisions to reduce bias. Peter’s seniority is complemented with the clean disciplinary record over the period of his job that puts the union lawyer in a strong position. Peter’s age and economic conditions in the industry he works in provide a strong argument.
According to the case study “Peter Frost is a 52 year old maintenance mechanic with 25 years service in a construction materials plant in western Mississauga”. According to the statistic provided on bureau of labour website the maintenance mechanics’ jobs are subject to change frequently and adaption to new sophisticated machinery is crucial. The increased automation and new computer controlled machines in the plants can result in less demand for old workers who got their training years back and were unable to update their skills.
Peter perfectly fits in this scenario, as he is working in the industry for a long time and doesn’t seem like he as been going for new training considering his attitude to work. Therefore his re-employability is an issue considering the external environment of the industry. The fact that Peter is a known union leader for conducting successful illegal strikes can also affect his re-employability. Company rules also put the union lawyer in a favorable position.
The clean disciplinary record of Peter advocates that the organization does not have the history of enforcement of disciplinary actions, the past practices and the publication of rules is poor. If the disciplinary rules and procedures were in place and were practiced the management would have been warned Peter of infractions as they occurred, and also the “Discipline in the labour relations field is foremost rehabilitative rather than punitive”(Module 4). If Peter admits he is addict to alcohol the company has the duty to accommodate under the Ontario Human Rights Code.
It can be logically argued on this base that peter’s addiction is a disease/ disability and he is covered under the terms of the Duty to Accommodate provisions of the Code (Module 5). Question 5: What criteria would an arbitrator use to decide the case and what decision would likely be made? (20 marks) In this discharge case the arbitrator has the ultimate right to support the discharge of Peter, dismiss his discharge or adjust the discipline to something less than a discharge for example an extended suspension without pay.
In situations like this, it is usually up to the company and union lawyers as to how they present and support the information they provide to the arbitrator. However the decisions made by arbitrator in the past and set examples are also the majour contributors in the decisions made by an arbitrator (Module 5). The literature about the previous cases reveals that an arbitrator typically considers the severity of infraction, the work record, seniority, age, re-employability of the employee and the company rules, duty to accommodate, the economic climate before making any decisions.
In this case both the union lawyer and the company lawyer have provided some logical arguments to defend them, which makes it very difficult to predict what decision the arbitrator would most likely to make. The comparison of both parties’ arguments and the past decisions of the arbitrators would help to anticipate the decision the arbitrator would make about Peter’s discharge case. The company lawyer made a solid argument about the seriousness of the offences made by Peter such as drinking at the workplace.
Where as the union lawyer made a logical argument to defend peter, he highlighted that if Peter admits that he is alcoholic or drug addict which is considered to be a disease and a disease is a disability the employer considering the Duty to Accommodate Provisions of the Code is bound to accommodate Peter through appropriate means rather than discharge. The company lawyer made an argument about peters progressive absenteeism and poor performance over the period of 4 years.
Talking within the context of discipline the argument was made by the lawyer about how Peter’s absenteeism significantly and progressively exceeded the plant average and the gap between his performance and the established standards of the organizations. Peter’s seniority is complemented with the clean disciplinary record over the period of his job was highlighted by the union lawyer in response. The absence of any disciplinary charges on Peter’s record provided the union lawyer an edge over the company lawyer.
The lawyer argued about management rights in collective agreement, which says that management has the right to fire the employees who are subject to discipline and poor performance to run the business smoothly. The union lawyer raised an issue of company rules he argued that the clean disciplinary record of Peter advocates that the organization does not have the history of enforcement of disciplinary actions, the past practices and the publication of rules is poor.
The lack of communication history between Peter and the management in the previous years did put the company lawyer in an awkward position, as the discipline in the labour relations field is primarily rehabilitative and not punitive. The company lawyer talked about how Peter’s behavior was interfering with other employees but the evidences did not back that as his record was clear and there was a not substantial document available from previous years.
The union lawyer in this case seems to have an upper hand over the company lawyer as he argued about Peter’s seniority, age, re-employability the economic condition, the external environment of the industry which are the majour issued the arbitrator would consider while making the decision. The union lawyer had thoroughly researched the criteria the arbitrators use to make decision and has made argument about how the charges against peter are not well supported by the evidences. Arbitrators made the decisions based on the evidences provided by the both parties.
The examples of the documentation could be the documentations, videos and witnesses. The lack of these evidences from the company lawyer suggests that Peter is most like to get away with the situation and the decision might be made in his favour than the company. Q 6. How does the situation change if Peter admits he is an alcoholic? (10 marks) If peter admits he is an alcoholic he would have an upper hand over the company. According to the Ontario Human Rights Code the employer has the duty to accommodate the employees who have disabilities.
The union lawyer can make a logical argument to defend peter if he admits that he is alcoholic or drug addict which is considered to be a disease and a disease is a disability therefore considering the Duty to Accommodate Provisions of the Code employer is bound to accommodate Peter through appropriate means rather than discharge (Module 5). According to the interpretation of the act the organization must establish that Peter’s disability (consuming alcohol while working) interferes with the rights of other co-workers.
The clear disciplinary record of Peter over the length of his job makes it difficult to prove that his behavior has been seriously interfering the right s of other employees. The code says that the employers should accommodate the minor interference or inconveniences if the employee take initiative and request for accommodation. If peter explains why he is asking for accommodation the company is obliged to asses the need of accommodation based on the needs of Peter’s colleagues.
Peter however is required to apply for the accommodation in writing providing enough time for employer to respond and the company is required to response within reasonable time. If Peter is flexible and realistic the company should considers alternatives than discharge Peter as guided by the Ontario Human Rights Code. According to the case study, there are “persistent rumours from other employees and supervisors that Peter’s breath smells of alcohol on a regular basis” however there is no evidence of that as his disciplinary record is clear.
This puts Peter in a good position to request for the accommodation from employer as the law allows him to do so. Therefore based on the evidences discussed above it can be logically argued that if Peter, in accordance with law, admits that he is an alcoholic it is very likely that he will take advantage of the law as he is an experiences union steward. References: http://www. bls. gov/ooh/installation-maintenance-and-repair/industrial-machinery-mechanics-and-maintenance-workers. htm#tab-6 ——————————————– [ 1 ]. http://www. labour. gov. on. ca/english/lr/faqs/lr_faq3. php#what1