The grievance arbitration award in Westfair Foods Limited v United Food and Commercial Workers Canada, Local 401, 2024 CanLII 100283 (AB GAA) helps delineate between an employer’s right to contract out bargaining unit work, and where “contracting out” mysteriously becomes “contracting in”. The case highlights the importance of carefully navigating the line between employers filling necessary gaps in their workforce, and unsuspectingly taking on responsibilities for workers they never hired. Additionally, it offers a new, summarized list of factors for arbitrators to consider in answering the question: whose employee is this?

The controversial April 2024 decision of the Ontario Superior Court of Justice in Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029 (“Dufault”) has been the subject of much discussion and is one of this year’s worst horror stories for employers. It reveals the need for employers to constantly review their employment agreements, to ensure they remain enforceable and compliant with the ever-shifting case law in this area.

The October 17th, 2024 Federal Court of Appeal (FCA) decision in Canadian Pacific Railway Company v. Sauvé1 shines a light on employers' thorny problems in workplace harassment and sexual harassment cases. In attempting to respond to an employee’s allegation that a manager had sexually harassed her, CPR conducted an investigation that resulted in the manager being fired. The manager made an unjust dismissal complaint that resulted in the CPR investigation being overturned. After a 12-day adjudication hearing, it was concluded that the manager’s relationship with the complainant was consensual. The manager was reinstated, but with a suspension for exercising poor judgment. That decision withstood a judicial review application, but the Federal Court of Appeal has now restored the firing. The Court of Appeal decision is a good reminder for employers that the handling of complaints made under their Respectful Workplace policies can be complicated and should be approached with care.

Last week, I sat on a panel with Dan Demers of Cann/Amm Testing Services Inc., a noted expert in workplace impairment, and Norm Keith, the author of Workplace Health and Safety Crimes and Alcohol and Drugs in the Canadian Workplace. Because of my involvement in the Canadian Standards Association’s Technical Committee for the development of a national standard to address workplace impairment (CSA Z1008.1), I am familiar with both experts, and their presentations last week were excellent. I decided that I should share some of the highlights with you. Here is just a high-level overview of some key concepts that may interest you with respect to your rights as an employer to require drug or alcohol testing.

The Mian v. Expro Group case illustrates an increasingly common scenario:  the remote worker who, when a conflict with their employer arises, sues in the place they live rather than in the employer’s home jurisdiction.  Is that allowed?  As is true in many legal claims, the answer is “it depends.”

I have the good fortune of meeting with large groups of people who are interested in employment law. Whether it’s a large meeting hall full of company workers in Ontario, a Zoom room of executives in New York, or a classroom full of law students in New Brunswick, all of them understand that certain kinds of bad behaviour can justify firing an employee. The hard question is “When is bad behaviour bad enough to get fired?” That line has shifted over the decades that I’ve been a lawyer, and it appears to be taking another shift right now.

Every fall I turn into a matchmaker.

At the start of each university semester, I warn law students that I want to cause them to fall in love with my friend, Employment Law. They’re about to spend the next 40 years (and an extraordinary amount of time) wrapped up in some field of law, and I want them to choose their “law life mate” wisely. Employment Law is often overlooked, and it shouldn’t be.