Paulene C. Pasieka

The complainant, an employee with a long history of absenteeism, was diagnosed with cervical cancer and missed several months of work for surgery and recovery.

Upon her return, the employer issued a warning letter setting attendance conditions, noting her past absences including the cancer-related leave.

After a subsequent 40-day absence due to a car accident, her employment was terminated.

The Commission argued the termination was discriminatory because the cancer-related absence was a proximate cause.

The Board of Inquiry dismissed the complaint, finding that the employer had accommodated the cancer absence by allowing her to return to work and improve her attendance, and that the termination was justified by her subsequent failure to maintain reasonable attendance.

The applicant union applied for certification of employees at a new plant.

The employer and the incumbent union argued the application was untimely due to a recently signed collective agreement.

The applicant and employee complainants argued the agreement should be set aside under section 60 of the Labour Relations Act or as a remedy for the incumbent union's breach of its duty of fair representation under section 68.

The Board found that the incumbent union already held bargaining rights for the new plant under a prior city-wide agreement, so section 60 did not apply.

However, the Board held that the incumbent union breached section 68 by completely failing to consult the new plant's employees before concluding a separate, inferior collective agreement for them.

The Board declined to set aside the collective agreement as a remedy, finding it inappropriate to penalize the employer who had not breached the Act, but ordered the union to pay damages to the complainants for the loss of opportunity to be consulted.