Tenure of Employment v. Industrial Peace: A Discussion in Jurisprudence on the Concept of ‘Tenure of Employment’
International Zeitschrift 10.2 (February 2015): 20-43
24 Pages Posted: 20 Feb 2015
Date Written: February 17, 2015
This paper amounts to a discussion about justice: it is about whether just outcomes for the individual vis-à-vis ‘lines of jurisprudence’ and case law should matter within the democratic framework of Canada’s governing institutions. In the case of Alberta Union of Public Employees v. Lethbridge Community College,  1 S.C.R. 727, 2004 SCC 28 the Supreme Court of Canada overturned the highest Court in Alberta in the latter’s ruling that an employee deprived of both her employment and right to tenure without cause must receive the justice of reinstatement. Even at the close of the original appeal before a split arbitration board, one arbitrator of three, like the Alberta Court of Appeal later ruled, decided that reinstatement was the only option the employer had under the law. In this paper I will argue that the Supreme Court erred in its decision in this instance because it chose to support its own dictum of preserving “industrial peace” over and against what the Alberta Court of Appeal, labour arbitrator Bartee, and I see as the most important issue: the upholding of an employee’s rights as spelled out in the collective agreement. This was not a case where industrial peace should have been the underlying concern primarily because a Canadian employee was robbed by her employer of contractual and statutory rights under the collective agreement and the law respectively.
The Court, more concerned with what this decision might mean in future for “industrial peace,” felt they could justify their decision by employing the tactic of a long discussion on the jurisprudence relating to the broad remedial powers given to arbitration boards to settle disputes arising from their own dicta but yet in conflict with the collective agreement and statute law. Notwithstanding how one wishes to order the nexus of factors which need to be considered in a case such as this, for instance the rights of the employee/employer, power of the board, right to an appeal, etc., I argue the court erred by not choosing the breach of a Canadian citizen’s legal and contractual rights as the single most important factor in this case. Cases involving dismissal really turn on whether the employee was fired for cause or without cause, and if the latter, then, as the Alberta Court of Appeal saw clearly, reinstatement is the only option. The Supreme Court, though, had something else at the front of their minds and front and centre in their decision: their own mantra of “industrial peace” pre-empted by a long, philosophically dislocated, discussion about the broad remedial powers of arbitration boards. I will argue that this decision needs overturning because it extinguishes a fundamental principle of justice in Canada: citizens cannot be deprived of their tenure of employment without just cause under a collective agreement.
Keywords: Employment Law, Tenure of Employment, Right of Reinstatement, Collective Agreement, Unjust Dismissal, Dismissal without Cause, Labour Law
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