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Unions and employers are no doubt aware that retaining legal cousel necessitates a more expensive and less expeditious grievance arbitration process. However, if a party's prospects for success are enhanced by legal representation, the additional delay and expense may be justified. Does legal representation affect grievance outcomes? Most arbitrators are lawyers. Does an arbitrator's legal training affect the outcome of a grievance? In an effort to answer these questions, all discipline or discharge grievance arbitration awards decided in the Canadian province of Newfoundland during the period 1980-1992 were analyzed. The results suggest that legal representation does not affect grievance outcomes, nor do lawyer-arbitrators decide cases any differently than their lay colleagues.
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The Changing Workplace: Reshaping Canada's Industrial Relations System by Daniel Drache and Harry Glasbeek is reviewed.
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The article reviews the book, "Managing Workforce 2000: Gaining The Diversity Advantage," by David Jamieson and Julie O'Mara.
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The article reviews the book, "Blackboard Unions: The AFT and the NEA, 1900-1980," by Marjorie Murphy.
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In the Waterman case, the Supreme Court of Canada decided - at least with respect to the defined benefit pension plan under review - that pension benefits received by a wrongfully dismissed employee during the reasonable notice period are not deductible from any severance pay in lieu of reasonable notice that is otherwise payable. A majority of the Court held that the pen- sion benefits constituted a form of deferred compensation that was not intended to indemnify against income loss due to a wrongful dismissal, while the min- ority maintained that pension benefits received during the notice period must be deducted to prevent the dismissed employee from obtaining an undeserved windfall. In this article, the author reviews the law relating to the deductibility of various benefit payments from wrongful dismissal damages. In his view, the Waterman majority judgment does not provide wrongfully dismissed employees with an improper windfall, and there is no principled reason why pension bene- fits should be deducted from a damages award and thereby placed on a separate footing from other benefits that are components of an employee's overall com- pensation package.
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Canadian employers have a common law obligation to give reasonable notice when terminating an employment relationship without cause. In deter- mining the appropriate length of the notice period, trial judges hearing wrongful dismissal claims must consider a range of factors, including what are known as the Bardal factors. In this paper, the author presents and analyzes the results of his empirical study of appeal court decisions reviewing trial court awards of reasonable notice across Canada from 2000 to 2011, and examines the impact of the Bardal factors (as well as several others) on outcomes at the appellate level. The study finds that appeal courts have not treated all of the Bardal factors equally, but appear to have given the most weight to the employee's age and length of tenure. Other factors found to have significant predictive value on the length of reasonable notice awards were the employee's gender and whether a successful claim for Wallace damages was made. The data also indicate that employee appeals have succeeded relatively more often than employer appeals, and that the length of notice ordered by appellate courts seems to have plateaued over time. In light of his conclusion that only a narrow range of considerations significantly affect notice awards, the author argues that the current system of judicial assessment of reasonable notice could well be replaced by a less expen- sive and time-consuming statutory scheme that would incorporate a formula for applying the relevant factors and would be administered by employment standards tribunals rather than by the courts.
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In 2014, the National Labor Relations Board's Regional Director ruled that scholarship football players at Northwestern University were "employees ". Subsequently, in 2015, the full board, andwithout deciding the players' status, declined to assert jurisdiction effectively ending the dispute. There are parallels between this dispute and lawsuits currently before the Canadian courts involving the Canadian Hockey League ("CHL'). The CHL is nominally an "amateur" league and is the principal development league for players hoping to pursue a career as a professional hockey player. The players claim they are "employees" under provincial employment standards statutes. The CHL maintains that the players are "student athletes ", akin to NCAA Division I scholarship athletes. This article examines the similarities and distinctions between CHL players and NCAA Division I athletes, discusses the CHL litigation, the probable outcome, and the possible ramificationso f this litigationf or the CHL and its players. *
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Are “major junior” hockey players amateur athletes honing their skills with a view to playing professional hockey, or employees working in for-profit businesses? This question lies at the heart of the ongoing class actions involving the Canadian Hockey League (“CHL”) and its member leagues and teams (the “CHL Litigation”). --From introduction
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