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					                                        Faculty of Law
                                      University of Victoria

                          LAW 326 - EMPLOYMENT LAW
                            April 2002 Final Examination


Date:       Friday, April 12, 2002

Time:       9:00 a.m. - 12:30 p.m.                                 Professor Heather Raven
  OR        9:00 a.m. – 11:20 a.m.

Room:       158
This exam consists of six pages. Please check to be sure that you have received a complete exam.
DO NOT USE YOUR REAL NAME (OR SIGNATURE); use your CODE NAME ONLY and print it
clearly on each examination booklet and on the exam envelope.


INSTRUCTIONS

1.      The first 30 (or 20) minutes is a compulsory reading period. Writing in the examination
        booklets is NOT permitted during this period. Paper will be provided to make notes. Do
        not place these notes in the examination envelope as they will not be read or marked by the
        instructor.
2.      This is an open book examination. You may use your class notes, outlines and casebook.
        You may NOT consult or use library books or computer data bases.
3.      Please write legibly on alternate lines and only on one side of the page.
4.      All references to statutes and the Labour Relations Board refer to British Columbia
        Statutes and the British Columbia Labour Relations Board.
5.      In answering the questions ALWAYS support your answers with reference to the
        section(s) and subsection(s) of the relevant statute and any applicable court or tribunal
        decisions.
6.      Please pay close attention to the number of marks assigned to each question and allocate
        the time spent on each question accordingly.
7.      This exam has eight (8) questions. ALL QUESTIONS MUST BE ANSWERED.
              Question 1:       30 Marks - DO NOT ANSWER THIS QUESTION IF YOU
                                COMPLETED THE WRITTEN ASSIGNMENT
              Question 2:       30 Marks
              Question 3:       10 Marks            Question 6: 5 Marks
              Question 4:       10 Marks            Question 7: 5 Marks
              Question 5:       5 Marks             Question 8: 5 Marks
Law 326: Employment Law                                                                  Professor Raven
April, 2002                                                                                   Page 2 of 6



QUESTION ONE:                           [30 Marks]

        DO NOT ANSWER THIS QUESTION IF YOU COMPLETED THE
        WRITTEN ASSIGNMENT

Alma Andrews is 49. She has worked for the Kidds Toy Company since 1990. She came to
Kidds as an accounting clerk. Over the next five years, Alma completed her Bachelor of
Commerce degree at night school and she obtained a professional designation as a chartered
accountant. Over the years, she received several promotions and is now Assistant Manager of the
Accounting Department.

Alma was next in line for the position of Manager of the Accounting Department. When that
position became vacant four months ago, she was bitterly disappointed when Kidds hired Gloria
Hope for the job. Gloria has less experience in accounting than Alma. Kidds hired her because it
needed someone to improve the efficiency of the Accounting Department and Gloria is an expert
in computerized accounting systems.

Gloria began to implement sweeping changes in the accounting system. She also called a staff
meeting at which she indicated that she expected all staff to follow office procedures "to the
letter" to improve efficiency.

Gloria assigned Alma to a project to computerize the collection of delinquent accounts,
establishing what Alma believed to be an unrealistic deadline for its completion. When Alma
questioned the deadline, Gloria said that the project was "vital" and the deadline was realistic.
She also said that if Alma "was not able to get the job done" she (Gloria) would have to find
someone who could. Alma did not meet the deadline and finished the project a week late. Gloria
called her into her office and said that she expected "better co-operation and performance in the
future" and warned Alma that her performance must improve if she wanted to keep her job. She
then assigned another project, again establishing a tight deadline. Although Alma met the
deadline, the project contained a serious error that Gloria had to fix. Gloria was so annoyed that
she called a staff meeting to discuss poor employee performance. During the meeting, she
described Alma's project as "a piece of unmitigated junk" and as an example of "how not to get
the job done". Alma was emotionally hurt and deeply embarrassed because everyone at the
meeting knew that Gloria was talking about Alma's work performance.

The next day Gloria called Alma into her office and told her that the position of Assistant
Manager in the Accounting Department was to be eliminated as part of a corporate
reorganization. Gloria offered Alma a position as an accounting clerk. When Alma protested
saying she was highly overqualified for the accounting clerk position, Gloria said there were no
accountant's positions open and that it was a "take it or leave it offer". Gloria gave Alma the
weekend to accept or reject Kidds' offer.

When Alma arrived at work on Monday, the first thing she saw was a notice in the coffee room
that she (Alma) had been demoted to accounting clerk. Alma was upset and deeply humiliated.
Alma immediately went to Gloria's office to ask why the notice had been posted before she
(Alma) had given Gloria her decision about the accounting clerk position. Alma told Gloria that
Law 326: Employment Law                                                                        Professor Raven
April, 2002                                                                                         Page 3 of 6


she would be consulting a lawyer during her lunch break that afternoon. Gloria replied that Kidds had
given her (Alma) a very generous offer and that going to see a lawyer was a rejection of the accounting
clerk's position.
Alma was terminated, effective immediately at the meeting. Alma was devastated and suffered
such severe emotional distress that she was unable to look for a new job for three months and she
had to obtain psychiatric counselling. Her attempts to find a new accounting position have been
unsuccessful due to a downturn in the economy and Alma seeks your advice about seeking legal
recourse against Kidds.

ADVISE ALMA FULLY AS TO HER LEGAL POSITION AND THE LIKELY OUTCOME
SHOULD SHE DECIDE TO BRING A LEGAL ACTION AGAINST KIDDS.




QUESTION TWO:                             [30 Marks]

        "What the authors of the B.C. Labour Code tried to do was to re-examine each and
        every feature of the legal framework and to incorporate just about every good idea
        that had been tried out, or even proposed, elsewhere. There were two central themes
        to this highly ambitious effort. The first entailed an endorsement of the value of
        collective bargaining as a means through which employees could participate in the
        affairs of the workplace. The Code reflected another crucial value -- the pursuit of
        labour peace within those units where collective bargaining had been established.
        This objective was believed to be important not just for employees but also for the
        general public, including unionized workers themselves."
        (Paul Weiler in the Process of Reforming Labour Law in British Columbia, 1983)
PROVIDE A CRITICAL ANALYSIS AS TO WHETHER THE CURRENT LABOUR
LAW REGIME IN BRITISH COLUMBIA DEALING WITH THE DETERMINATION
OF AN APPROPRIATE BARGAINING UNIT AND WITH PICKETING FULLY
EMBODIES THE VALUES DESCRIBED BY PAUL WEILER.
(a)     RESTRICT YOUR DISCUSSION TO SECTIONS 1, 22, 57, 64, 65 AND 68 OF
        THE CODE.
(b)     YOU MAY TREAT THE DECISIONS OF THE SUPREME COURT OF
        CANADA AND THE CANADA LABOUR RELATIONS BOARD AS ADOPTED
        BY THE LABOUR RELATIONS BOARD OF BRITISH COLUMBIA.
Law 326: Employment Law                                                                   Professor Raven
April, 2002                                                                                    Page 4 of 6


OUESTION THREE:                          [10 Marks]

Wanda Worker is a firefighter. Firefighting is a stressful occupation and Wanda likes to have a
couple of drinks after her shift in order to "relax". One evening, there was a huge fire in the
warehouse district. All available off-duty firefighters were called out to fight the fire. Wanda had
just completed her shift and was relaxing with her third beer at the local pub when she was called
out. While backing her pumper truck into position at the fire, Wanda bumped into the fire chiefs
truck. This was the second time Wanda had bumped into another vehicle while she was on duty.
The damage to the chief s car was minimal: a broken headlight and a few dents and scratches.
The fire chief suspended Wanda without pay for ten days and placed a severe letter of reprimand
on her personnel file.

ANSWER BOTH PARTS OF THIS QUESTION.

PART A: [6 Marks]

Wanda is very upset about the letter on her personnel file. She wants to challenge the letter using
the grievance procedure as set out in the collective agreement. HOW SHOULD THE UNION
DETERMINE IF THE DISCIPLINE IS APPROPRIATE?

PART B: [4 Marks]

After investigating Wanda's grievance, the union is considering not pursuing the grievance.
ADVISE THE UNION ON HOW IT SHOULD PROCEED IN ORDER TO MEET ITS
OBLIGATIONS TO WANDA UNDER THE LABOUR RELATIONS CODE.




OUESTION FOUR:                           [10 Marks]

Terry Twigg has worked as a horticultural employee at Big Tree Nursery for ten years. Big Tree
is a small operation employing four horticultural workers, a half-time office worker and the
owner-operator, Ruby Rose. Big Tree grows balsam seedlings that are used by logging
companies to replant logged-off areas. Balsam seedlings are particularly affected by the Balsam
Woolly Aphid. The seedlings must be hand-sprayed several times before being shipped for
planting. The spray used to combat the aphid is quite toxic to humans. It is the only spray
available to commercial growers of balsam seedlings. About one-third of Terry's duties consist of
spraying. Big Tree provides all of the legally required spraying gear to its employees. About a
month ago, Terry experienced a severe allergic reaction after a spraying session. An inspection
of her spraying gear showed it to be in excellent working order. Terry's doctor determined that
she had become allergic to the latex used in the face mask and gloves of the spraying gear. The
doctor ordered her to avoid all contact with latex. Terry asked Ruby Rose to reassign her from
spraying duty. Ruby refused saying that she could not afford to hire someone else to do the
spraying. Through the internet, Terry found spraying gear that does not contain latex. However,
this gear costs ten times the amount of the gear supplied by Big Tree. Ruby refuses to purchase
the non-latex spraying gear. Terry used Big Tree's spraying gear on a few more occasions.
Law 326: Employment Law                                                                    Professor Raven
April, 2002                                                                                     Page 5 of 6


However, her allergic reaction became so severe that she could no longer continue working. Big Tree
recently terminated Terry because of her inability to perform the spraying duties.

ANSWER BOTH PARTS OF THE QUESTION.

PART A:         [8 Marks]

DOES TERRY HAVE A REMEDY UNDER THE HUMAN RIGHTS ACT? WHAT WOULD
BE THE LIKELY OUTCOME IF SHE FILED A HUMAN RIGHTS COMPLAINT AGAINST
BIG TREE?

PART B:         [2 Marks]

IF THIS MATTER HAD ARISEN IN 1997, WHAT DEFENSE WOULD HAVE BEEN
AVAILABLE TO BIG TREE?




OUESTION FIVE:                           [5 Marks]

The Warehouse Workers Union (Union) was certified to represent the employees of Direct Worldwide
Shipping Company (Direct). Direct specialized in international and extra-provincial moving of
household goods of persons leaving the Victoria area. Direct ceased business December 31, 2000. EZ
Movers opened for business in Direct's former warehouse on July 1, 2001. About half of EZ's
business consists of selling packing materials for "do it yourself' moves, renting warehouse space for
furniture storage and household moving in the Victoria area. The other part of EZ's business is the
international and extra-provincial shipping of household goods. Direct's former head shipper is the
office manager for EZ. EZ has just hired two former Direct employees.

IDENTIFY ANY LABOUR CODE APPLICATIONS THAT THE UNION MIGHT MAKE
AND BRIEFLY DISCUSS THE LIKELY OUTCOME OF ANY SUCH APPLICATIONS.




OUESTION SIX:                            [5 Marks]

The Steelworkers Union (Union) has applied for a certification of a bargaining unit at Venture Steel
(Venture). Venture is contemplating laying off certain employees and using the money saved to fund
salary increases as part of its annual salary review process.

ADVISE VENTURE OF ITS OBLIGATIONS UNDER THE LABOUR RELATIONS CODE
AND BRIEFLY DISCUSS THE FACTORS VENTURE SHOULD CONSIDER BEFORE IT
ACTS.
Law 326: Employment Law                                                                      Professor Raven
April, 2002                                                                                       Page 6 of 6


OUESTION SEVEN:                           [5 Marks]

The Brewery Workers' Union (Union) is organizing at the Big Beer Brewery (Beer). Beer was informed
of the organizing campaign by an employee who did not support unionization. Beer decided to hold a
series of meetings. Various statements were made by Beer representatives at the meetings about its
desire to remain non-union, the adverse effect unionization could have on the company's future and
employees were told how they could revoke their union membership. Beer terminated a union
supporter, made changes in the timing of lunch and coffee breaks, and forbade its employees to discuss
"union matters" during their lunch and coffee breaks. The Union filed a s. 6 complaint which was
upheld by the Labour Relations Board.

WHAT ORDER COULD THE UNION REQUEST FROM THE LABOUR RELATIONS
BOARD AS A REMEDY FOR BEER'S BREACH OF S. 6 AND BRIEFLY DISCUSS THE
FACTORS GOVERNING THE GRANTING OF THAT REMEDY?




OUESTION EIGHT:                           [5 Marks]

Acme Information Systems and the Computer Workers Union (CWU) are bargaining for a first
collective agreement. Acme's owner and bargaining chair was still very upset that her employees sought
and obtained union representation. She was determined to "teach them a lesson". When the union tabled
its bargaining proposals, Acme refused to table any proposals because in her opinion, the employees
already enjoyed above industry standards in their terms and conditions of employment. Responding to
the union's wage proposal she said that Acme could not afford to grant any wage increases or the
company would "go under". She also said that a seniority system would be "impossible" because Acme
needed complete discretion and flexibility in assigning work projects to the best qualified employees in
order to meet the demands of the marketplace. Two more bargaining meetings were held and Acme
again refused to place any proposals on the bargaining table and refused to budge from its initial
position on all of the union's proposals. No further bargaining meetings are scheduled.
You act as counsel for the Union. The members are frustrated and angry. CWU asks your advice about
any possible lawful means it can use to pressure Acme to bargain.

IDENTIFY FIVE LAWFUL MECHANISMS THE UNION COULD USE TO ATTEMPT TO
GET ACME TO NEGOTIATE A COLLECTIVE AGREEMENT.




                                     END OF EXAMINATION

				
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