Unlawful strike

Court asked to clarify jurisdiction on claim for employees with no collective agreement

On June 7, 1999, following the approval of a decertification application before the Ontario Labour Relations Board, the CAW-Canada was displaced as the union representing employees at the Hamilton, Ont., plant of SERCA Foodservices Inc. As a result of this, by operation of law, the collective agreement between SERCA Foodservices (Hamilton) and the employees was terminated.

The Association of Employees of SERCA Foodservices (Hamilton) was certified on Aug. 11, 1999, as the employees’ new trade union. The association commenced negotiations with SERCA for a new collective agreement.

On Sept. 13 and 14, 1999, there was an unlawful strike at the Hamilton SERCA plant. As a result of the unlawful strike, Craig Roberts and Robert Lamothe were terminated for cause on the basis that they had engaged in conduct designed to provoke an unlawful strike.

In addition to terminating employees, SERCA brought a cease and desist application against the association before the Ontario Labour Relations Board. The application was brought against the terminated employees among others. A hearing was conducted on Sept. 17. The board held that Roberts and Lamothe had engaged in an unlawful strike and that they had called, authorized, procured and participated in the unlawful strike.

SERCA also brought proceedings against Roberts, Lamothe, four other employees and the association for damages pursuant to the Labour Relations Act, 1995, for their actions in relation to the illegal strike. The association responded by arguing that the employer had breached its obligations under the Act. The association alleged that two other employees had been improperly terminated. There was no similar claim in relation to Roberts and Lamothe.

At the time that the second proceeding was brought, the association and the employer were bargaining to reach an initial collective agreement. The Hamilton plant was scheduled to close and the future of its employees was uncertain, so reaching an agreement was crucial to the association in order to secure severance rights for the employees.

On Jan. 4, 2000, in the context of settling both the terms of the collective agreement and the outstanding proceeding before the Labour Relations Board, the association and SERCA entered into a settlement agreement. Part of the agreement provided that if a collective agreement was reached by the end of January 2000, the employer agreed not to pursue its claim for damages against Roberts, Lamothe and other employees.

The agreement was signed by the lawyers for the association but not signed by Roberts and Lamothe. However four other individuals against whom damages had been sought and who had been specifically mentioned signed the agreement. After the agreement was signed, it was ratified by the board on Jan. 12, 2000, and sent to counsel for Roberts and Lamothe.

Roberts and Lamothe commenced an action in the Ontario Superior Court of Justice against SERCA for wrongful dismissal. SERCA brought a motion, seeking to have the action dismissed on the basis that the Court had no jurisdiction over this dispute. SERCA argued that Roberts and Lamothe were dismissed in the context of a labour dispute and as such, the Ontario Labour Relations Board had exclusive jurisdiction. SERCA also argued that the settlement agreement reached by itself and the association was binding on Roberts and Lamothe.

On the issue of the settlement agreement, the Court considered existing law, which held that an employee or former employee is not bound by a settlement agreement made by a union and the employer unless the employee gives the union authority to bind him.

Based on the existing law and the evidence that showed that Roberts and Lamothe specifically stated they would never agree to a settlement in which their rights to pursue a claim for wrongful dismissal would be precluded, the Court held that Roberts and Lamothe were not bound by the settlement agreement. As such the agreement did not preclude them from bringing a wrongful dismissal action.

The Court then considered the issue of jurisdiction. If there were a collective agreement in place, there is no doubt that the matter should properly be before the Labour Relations Board. However in this case, no collective agreement was in place at the time of Robert’s and Lamothe’s dismissals. It was signed after their dismissal. Nonetheless, the Court held that the Labour Relations Board had exclusive jurisdiction over this matter.

In finding that the jurisdiction over this dispute was with the Labour Relations Board, the Court relied on the provisions of the Labour Relations Act which gave the board jurisdiction to address violations of the Act that occurred after a collective agreement expires. The issue of their dismissal had not been raised before any prior proceeding before the board so Roberts and Lamothe could still seek relief.

The motion was granted and the claim for wrongful dismissal was struck.

For more information:

Roberts v. SERCA Foodservice Inc., Ontario Superior Court of Justice, Docket No. 01-CV-212258SR, Oct. 22/01.

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