Canadian HR Reporter

CANADIAN HR REPORTER September 21, 2015 NEWS 7 peaceably with all men,' and not to use force to gain what we want," he said. Legal trouble But labour laws dictate that em- ployees have the right to join a union, and Gingrich's employees are protected under the Ontario Labour Relations Act. Shutting down constituted an illegal lock- out and demonstrated unfair la- bour practices, which prompted the union to launch a complaint with the Ontario Labour Rela- tions Board (OLRB). "Unifor was very surprised by the decision of Gingrich Wood- craft to close its business and il- legally lock out its employees. It is not often that employers will demonstrate such a blatant and public disregard for labour laws and workers' rights," said Sarah Lesniewski, a spokesperson for the union. "e law in Ontario is very clear — workers are free to join a union and cannot be dismissed, intimi- dated or discriminated against for doing so." Farah Baloo, Unifor's lawyer on the file, said the religious argu- ment is not relevant to the case, which should be open-and-shut. "It has nothing to do with free- dom of religion and it is com- pletely to do with the right of employees to be represented by a trade union. I think it's a post facto justification for illegal conduct — it's not relevant," said Baloo. e union is seeking 52 weeks' pay for employees as well as back pay for any lost wages. Unifor is also seeking damages of $10,000 for organizational and bargaining expenses. Whose right is it anyway? But Dan Matson, counsel for Leon Gingrich, said the owners are en- titled to religious rights under the law as well. "Based on Bible principles, their faith states that they must live peaceably amongst all men and it is their belief that this can- not be accomplished with the ad- versarial processes that come with a labour union," said Matson, add- ing the right to unionize doesn't necessarily trump the right to live according to individual faith. "Gingrich Woodcraft recog- nizes the freedom of association and the right to unionize that comes with that freedom, but also takes the position that they have the freedom to live according to their faith and therefore have the right to choose whether or not to operate." e Christian Labour Associa- tion of Canada (CLAC) union said the situation is an unfortunate one overall. "As a trade union that embraces the teachings that we read about in the Bible, I don't know if our approach would have salvaged the relationship given the state- ments that the employer has made, saying that any trade union is incompatible with their beliefs," said Andrew Regnerus, CLAC's construction co-ordinator for Ontario. "CLAC comes from a Chris- tian point of view and does col- lective bargaining, and we believe that certainly is defensible from a faith-based or Bible-based view- point," he said. While it is unlikely the OLRB will force Gingrich to reopen its doors, one possible outcome is the employees and union will be compensated for the closure, Reg- nerus said. Employers whose religion dic- tates the terms of employment are rare in Canada, and even rarer when a union is involved, said Baloo. While the labour rela- tions act has protections in place for employees wishing to opt out of a union shop, there aren't such provisions for employers. e labour board hearings are scheduled for Sept. 30 and Oct. 1. Hearings pending FURNITURE < pg. 1 people who have such a disability," but it provided for a "protected route to assistance," not "rigid and inflexible discipline." The appeal court found the policy could catch an employee with an addiction disability, but also drug users who didn't have a disability. In addition, a disabil- ity revealed voluntarily before a significant event would have no adverse impact. As a result, "dis- ability was not a real factor in the enforcement of the policy," it said. e appeal court also found the suggestion that Stewart was in de- nial of his condition didn't change the reasonableness of Elk Valley's accommodation steps and the policy's purpose of maintain- ing a safety-sensitive workplace. Whether Stewart felt he was de- pendent on drugs or not, he knew he used them before going to work and he had the opportunity to come forward without penalty. "Creating a situation where, post-incident, claims of denial might be treated as a potential vaccine against discipline hardly advances the effort to create and maintain a safe workplace," said the court of appeal. It disagreed with the Court of Queen's Bench regarding ac- commodation, finding "undue hardship relates to the negative effect on the operations of the em- ployer arising from the effort to accommodate." Elk Valley's balancing of options for accommodation with its safety- sensitive workplace was adequate and the company lived up to its duty to accommodate, said the ap- peal court. e appeal was dismissed and Stewart's dismissal was upheld. For more information see: • Stewart v. Elk Valley Coal Cor- poration, 2015 ABCA 225 (Alta. C.A.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. 'Protected route to assistance' DRUG POLICY < pg. 5

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