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July 18, 2016

'Groundbreaking' labour ruling highlights Canada's lack of progress for worker rights: rabble.ca





Canada's Supreme Court ruling, issued on July 14, in favour of fired nuclear energy worker Joseph Wilson has been rightly revered by labour movement representatives.
The Canadian Labour Congress threw its might behind Wilson's case when the former Atomic Energy of Canada Ltd (AECL) non-unionized employee was fired in 2009 after nearly five years with the Crown corporation. During his time at AECL, Wilson was promoted from his original position of buyer/order administrator to procurement supervisor. He also maintained a clean disciplinary record.
Wilson's legal dispute with the energy giant began when he filed an "unjust dismissal" complaint at the end of 2009 to a labour inspector, claiming he had been fired for raising concerns around corrupt procurement practises at AECL.
The corporation hit back, justifying its action by citing legislation in the Canada Labour Code that states employers can dismiss non-unionized employees as long as two weeks' notice, or two weeks' pay in lieu of that notice is given -- even if there is no just cause for termination.
As Wilson's case progressed, AECL refused to accept a preliminary ruling from a labour adjudicator that found the corporation could not resort to severance payments, however generous, to show its dismissal had not been unjust.


For Wilson, who may have left a good job to join AECL, this was his first hurdle overcome. Importantly, for about 500,000 federal employees and the wider labour movement, this preliminary decision signalled to federal employers that the practise of buying workers' acceptance of dodgy terminations was not invulnerable.
Despite this, the next stages of Wilson's case were wins for AECL -- with both an application judge and the Federal Court of Appeal agreeing that nothing in the Canada Labour Code prevented employers from firing non-unionized employees on a non-cause basis. However, his case was escalated to the top court when the Federal Court of Appeal agreed it should to be reviewed on a standard of correctness.
Thursday's decision, delivered by Justice Rosalie Abella, highlighted important lessons for labour in Canada. While it found in favour of the worker, and vindicated Wilson's battle of more than five years against AECL, it was not a unanimous decision.
Justices Suzanne Côté, Russell Brown and Michael Moldaver, sided against Abella and five of their bench peers. The arguments made by the trio relating to the rights of non-unionized workers' under the Canada Labour Code are testament to the major attitudes and problems that continue to face workers, both unionized and non-unionized.
The pertinent legislation being debated in Wilson's case was implemented in 1978, and designed -- as outlined by Abella in her written decision -- to further the rights of non-unionized workers, so they might be afforded similar protections under the Canadian Labour Code as their unionized counterparts.
Côté, Brown and Moldaver fundamentally disagreed with this.
"Applying correctness review, we are of the opinion that a federally regulated employer can dismiss an employee without cause, so long as appropriate notice and severance pay are provided," Côté and Brown wrote in the trio's rebuttal.
As there is nothing in the law that "guarantees lifelong job tenure to employees of federally regulated businesses," dismissing an employer by giving notice or compensation in accordance with the Canada Labour Code is just, the pair reasoned.
Furthermore, Côté and Brown rejected their bench peers' assessment of the original intent of the legislation, and claimed they had misinterpreted comments made by then Labour Minister John Munro in 1977:
"It is our hope that [the amendments] will give at least to the unorganized workers some of the minimum standards which have been won by the organized workers and which are now embodied in their collective agreements. We are not alleging for one moment that they match the standards set out in collective agreements, but we provide here a minimum standard," Munro said of the changes.
Côté and Brown wrote: "[This] record weakens the majority's conclusion that Parliament intended to expand the rights of non-unionized employees in a manner that identically matched those held by unionized employees, since the minister expressly disclaimed any intent to do so".
While the significance of Wilson's legal victory should not be understated, Côté, Brown and Moldaver's voices must be given weighty consideration.
In this case, labour won because the Supreme Court vote came down six to three in favour of the worker. But, 10 years ago, the result may have turned a very different tally.
To ensure we progress in the fight for fair rights in the workplace, all workers -- unionized and non-unionized -- must continue to confront the attitudes and beliefs expressed by the three dissenting justices -- inside and outside the courtroom.
Because, while the legislation at the heart of Wilson's case was implemented in 1978, nearly 40 years later, his legal challenge is being touted as "potentially groundbreaking" for essentially ensuring the law was followed.


Teuila Fuatai is a recent transplant to Canada from Auckland, New Zealand. She settled in Toronto in September following a five-month travel stint around the United States. In New Zealand, she worked as a general news reporter for the New Zealand Herald and APNZ News Service for four years after studying accounting, communication and politics at the University of Otago. As a student, she had her own radio show on the local university station and wrote for the student magazine. She is rabble's labour beat reporter this year.

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