Fair or Foul: Do employees have an enforceable right to fairness at work?
Equity, or fairness, in the workplace has long been identified as an important – or even primary – interest of employees. Is this interest in being treated fairly one that is legally protected? In this session, leading labour lawyers will discuss this question, identifying circumstances in which employees have a right to be treated fairly by their employers – defining what fairness means in these contexts – while noting circumstances in which employees' right to be treated fairly is less certain. Specific questions to be addressed include the following:
- In a unionized workplace, is an employer generally required to exercise its right to manage in a fair and reasonable fashion in the absence of express language in the collective agreement requiring it to do so? Is the obligation to act in good faith in administering the collective agreement the same as – or comparable to – a duty to exercise management rights fairly and reasonably? Is there a difference between acting fairly and acting reasonably?
- If there is collective agreement language requiring the employer to exercise its management rights fairly, does the requirement to act fairly extend beyond matters specifically covered by the collective agreement?
- Must rules promulgated unilaterally by a unionized employer be "fair"? If so, what separates "fair" rules from "unfair" rules?
- Leaving aside questions regarding the existence of a general duty of fairness, does an employer have an obligation to act fairly in disciplining or discharging employees in unionized workplaces? What about non-unionized workplaces? Does it matter whether the employer is a public or private organization?
- What steps must an employer take to ensure that a workplace investigation is conducted fairly? Does it depend on the type of investigation? For example, are there specific requirements regarding procedural fairness in harassment investigations?
- What is the scope of the union's obligation to represent bargaining unit members fairly? How can the union meet this duty when members are in conflict?
- What are some best practices for ensuring fairness in the workplace? Do employers, unions, and employees have a shared interest in ensuring that workplaces are fair?