Professional Documents
Culture Documents
Guy Duperreault
Applicant
EI Umpire
500-5050 Kingsway
Burnaby BC V5H 4C2
In my original letter of appeal I cited two sections of the charter that are put
into jeopardy or even violated by the policies of the EI board. As a result of
doing research for my appeal to the board of referees, I learned that my
charter arguments were applied against a policy questionnaire that is itself
an error in the administration of the EI Act 36(1). And I also learned that
36(1) of the EI Act is itself in violation of the Charter of Rights and Freedoms.
Furthermore, I argue that the section of the act that has denied me benefits,
as it has been administered and justified by referees and umpires, is
inherently flawed, and that those actions of the EI board and its agents also
violates the Charter of Rights and Freedoms, specifically 2(a), 2(d) as noted
in my original appeal, but now that I know this questionnaire is unnecessary,
also section 12.
There is an inequity in how 36(1) has been enforced over the years, and that
hypocrisy impugns the integrity of blinkered enforcement of 36(1) and
invalidates the reasons for my claim’s denial. The referees who dismissed
my appeal did not err in law, but the law itself is in error.
I also argue that the interpretation of 36(1) that I have read in the
jurisprudence by the board and its agents is morally and legally incorrect.
These justifications may have arisen from a psychological and/or emotional
need within the members of the EI boards and agents to try to justify what is
known to be an unfair law because, as it stands, 36(1) requires no
justification to deny claims to labourers embroiled in a labour dispute. Given
that 36(1) requires no justification in denying claims, it is puzzling that most
boards, referees and umpires who have ruled on 36(1) have verbosely
justified it. Although there is at least one exception to that.
required by article 57 of the Federal Courts Act, when a date is set for the
hearing of my appeal.
36(1) of the EI Act violates section 15(1) of the Charter of Rights and
Freedoms, in that it discriminates against a distinguishable class or group in
society: the labourer, in favour of another distinguishable class or group,
the employer. Furthermore, the discrimination is not designed to ameliorate
the situation of a disadvantaged group, so 15(2) does not apply to validate
the discrimination. Functionally it exacerbates the discrimination by shifting
the inequality extant between the labourer and the employer further in
favour of the employer than already exists.
36(1) Reads:
Subject to the regulations, if a claimant loses an employment, or is
unable to resume an employment, because of a work stoppage
attributable to a labour dispute at the factory, workshop or other
premises at which the claimant was employed, the claimant is not
entitled to receive benefits until the earlier of
(a) the end of the work stoppage, and
(b) the day on which the claimant becomes regularly engaged
elsewhere in insurable employment.
The issue of "all things being equal" is, ostensibly, at the heart of the oft
repeated cry that EI is to remain neutral in a labour dispute. For example:
It has been stated in considerable of the jurisprudence that this
section (Section 36(1), formerly Section 31 and formerly Section 41
of the Act) is based on the proposition that government neutrality
should be preserved in a labour dispute. This is stated by the Court
in Caron v. Richard et al. CUB 14267 where Hugessen and
Desjardins, J.J. quoted L'Heureux-Dubé, J. in Hills, [1988] 1
at 537:
"The two principles generally invoked in the interpretation of s
44 rest on the proposition that government neutrality should
3
It is worth noting that the OED Shorter Dictionary defines inequitable as "Not
equitable, unfair."
These, and many other similar citations and cases, provide evidence of the
aetiological nature of the enforcement of the act – it is a law which has in its
case-law the intent or constriction of neutrality and fairness in a labour
dispute with respect to, ostensibly, both parties in the dispute. And, as with
most things in life, the measure and vitality of an intent is in how it is made
manifest through the actions and their associated consequences by those
entities that hold the power to see that intent made manifest in tangible,
pragmatic ways. The language of the intent is lucid and succinct. I repeat,
with changed emphasis:
As an expression of its firm desire to prevent the EIA from
having any influence whatsoever on labour-management
relations, Parliament has imposed strict rules to prevent
employment insurance being used to support either party to a labour
dispute [my emphasis].
And to that end I turn to the concern cited within many of the denied appeals
relating to employers financing strikers via their compulsory EI contributions,
if these strikers were to receive EI payments whose benefits have been paid
for by their erstwhile employer. This overlooks the fact that the employee
also contributes to EI. And thus the frequent citation that an employer's
compulsory payments are not to be used against them is not neutral: it is an
inequity because the employees who have contributed to EI are being denied
all insurance owed them – and not just the part paid for by the employer.
That has all the earmarks of a built in unfairness. But, despite that, it is not
unreasonable to see some kind of fairness in this because it can be seen to
be unfair to the employer if, in their planning of an extended “break-the-
employer” kind of strike, the employees were able to count on the EI
benefits as a secondary strike fund.
Now, what about the scenario in which an employer plans for and enacts a
“break the union” kind of lockout? Does the case law admit that in this
scenario, the compulsory contributions of the employee made before the
lockout are an unfair financial cost that helps the employer in its lockout?
No. It does not. In fact I have not read any jurisprudence referring to the
employee's contributions. And that is unfair, because, if we follow the
financial argument as it relates to employers, the employees contributions to
EI amount to the employees helping destitute themselves because the
employee is denied even access to the base contributions s/he made before
the labour dispute – with or without interest – let alone any type of
reasonable insurance benefit based on his or her contributions!
5
I am not the first to have raised the issue of how fair has been the effort of
the EI Board towards achieving neutrality. The issue of "fairness" has been
addressed in the jurisprudence. For example, from the FCA Docket A-90-81,
October 28, 1981, ATTORNEY GENERAL OF CANADA applicant, and GARY
SCHOEN respondent, regarding CUB 6384,:
There is perhaps another way to explain the umpire's decision. While
he did not say so, he may have read subsection 44(l) as disentitling a
claimant from receiving only the benefits o[r] the portion of the
benefits that, if the subsection did not exist, would become payable
as a result of the loss of employment attributable to a labour dispute.
In other words, according to that interpretation, the subsection would
not disentitle a claimant, whose employment is terminated by a
labour dispute, from receiving the benefits to which he would have
been entitled if that employment had not been terminated; it would
merely disentitle him from receiving additional benefits as a
consequence of the termination of his employment by reason of a
labour dispute. That interpretation would certainly produce fair
results. I have nevertheless reached the conclusion that it must
be rejected. Under the Act, when a person is, by reason of section
44, disentitled from receiving benefits for a day or a period, that
person thereby loses his right to receive any benefit for that day
or period. This, in my view, flows from paragraph 16(1)(a) and
subsection 27(2) 2 . It follows that:, in my opinion, subsection
44(1) cannot be interpreted so as to disentitle a claimant of only a
part of the benefits that he would otherwise have the right to
receive. [My Emphasis.]
Fairness is here explicitly excluded! And yet, in case after case after case,
fairness is cited as a reason to exclude benefits because it would be unfair
to an employer. It is okay for the law to be unfair to the employee, but not the
employer.
6
By this judgement Judge Pratte belies even the pretext of neutrality in the
law’s enactment, and clearly establishes the context of unfair
discrimination: the enforcement of 36(1) is blatantly unfair, and all decisions
that use fairness case law are subject to Charter arguments and “fairness”
scrutiny. Is the aetiology of the act and the purpose of board to ensure
neutrality and fairness between disputants or to assist employers in the
disenfranchisement of labour? If you decide that the aetiology of the act is
strictly to be fair to the employer and to that end assist the employer its
subjugation of labour, then I suggest that the Board stop the hypocritical
citations referring to fairness. If, on the other hand, the aetiology of the act
is to make manifest a neutral and fair playground for the owners of labour
and the labourers themselves, so that each may participate in a democratic
society as socio-economic equals in fair market haggling, then I suggest
that boards such as this one do not pretend that ignoring the circumstances
of individual cases is being fair. Neutrality does not arise from
dispassionate blinkered adherence to some organized letters that comprise
a statute.
his right to the full development and expression of his personality, all
other rights and claims must, the democrat holds, be subordinated.
I do not know how this principle is to be defended any more than I
can frame a defence for the principles of democracy and liberty.
By blindly following a law which has even been deemed unfair by not just
Louis Pratte, the federal court judge who wrote the Schoen decision, but by
the two other judges who participated in that decision – John Urie and D.J.
Verchere – the enforcement of 36(1) of the EI Act violates the principle that
“the state is made for man and not man for the state.” In enforcing an unfair
law, man – in this case the labourer – is subjugated to the state and its
agents. Specifically, by blindly enforcing 36(1) in a lockout, EI is a tool
assisting the impoverishment of labour as a means to an end beyond the
individual labourer, that being the model of labour management fashionable
within today’s flavour-of-the-day corporatist ideology. If the labourer sees
as one of its goals the collective well being of society via a respected and
reasonably paid labour force, any action on the part of the state, even
through the EI board, to hurt that is a violation of the principles of a
democratic society as stated by Joad, and a violation of 15(1) of the charter.
I feel that Joad’s statement deserves repeating:
For the welfare of the state is nothing apart from the good of the
citizens who compose it. It is no doubt true that a State whose
citizens are compelled to go right is more efficient than one whose
citizens are free to go wrong. But what then? To sacrifice freedom in
the interests of efficiency, is to sacrifice what confers upon human
beings their humanity. It is no doubt easy to govern a flock of sheep;
but there is no credit in the governing, and, if the sheep were born as
men, no virtue in the sheep.
Besides the blatantly stated unfairness of the FCA ruling that overturned the
“fair” decision of CU6384 above, there is, for inexplicably unfair non-
reasons, no distinction made by EI between workers locked out and those
who have initiated a strike. In the argument that follows I honour the
distinction, and extend the argument that EI neutrality is at least improbable
when the distinction is ignored in general – but in the case of employers who
take advantage of 94.2(1) of the Canadian Labour Code, which allows the
use of replacement workers during a labour dispute, it is impossible, and
8
any pretext at it being neutral is not just asinine, but antithetical to any
reasonable principle of democracy.
In pragmatic terms, the case law history of the blanket denial of EI benefits
to a locked out labourer amounts to a benefit the employer can take
advantage of in its planning for and management of a labour dispute –
especially in a "break-the-union" kind of dispute for which the employer has
taken great effort to plan and prepare. An employer with a knowledge of the
EI Act and 36(1)'s jurisprudence may very well plan for an extended dispute
with the full knowledge that its employees will be facing destitution and no
assistance from EI.
My argument has, in fact, some jurisprudence behind it. From DENNIS HILLS,
"et al", – v. – ATTORNEY GENERAL OF CANADA (REFERENCE NO: CUB 8764;
JUDGMENT NO: A-175-84); COURT FILE NO: 19094; DATE OF ISSUE;
November 21, 1997 (March 24, 1988)):
a) Government Neutrality in a Labour Dispute
In order to remain neutral the law should but does not distinguish
between strikes and lockouts. The reasonableness of the claims and
the merits of the dispute are ignored in the determination of the question
whether the labour dispute actually exists. The government can hardly
invoke neutrality if it declines to differentiate between a legitimate
grievance leading to a lockout and a voluntary stoppage of work
following a breakdown in industrial relations. It is indeed difficult to
classify as neutral a refusal to pay benefits in the former situation (Terry
Norris, "Dissociating from a Trade Dispute, and Claiming Unemployment
Benefit" (l985), 135 New L.J. 967 at p. 967). As mentioned by Susan H.
Ephron: "The neutrality principle can serve as a justification for the
"labour dispute disqualification" only if the parties to the dispute
stand on equal footing. In the majority instances they do not" (Susan
H. Ephron, "Redefining Neutrality: Alternative Interpretations of the
Labour Dispute Disqualification in Unemployment Compensation"
(1986), 8 Comp. Lab. L. 89, at p. 104).
From this judicial statement it is very clear that if employees find the thought
of EI benefits not an enticement to strike – and I can certainly attest to that in
my case – it is equally true that the lack of benefits is certainly a
consideration in an employers' lockout plans, especially if the labour dispute
is anticipated, expected and planned to be protracted, and the employer
takes advantage of 94.2(1) of the Canadian Labour Code, which allows the
use of replacement workers. This tangible, even measurable difference in
attitude between "labour" and "employer" towards EI contributions/benefits
belies equality and fairness between the disputants, and makes a mockery
of the enforcement of 36(1) as a means of ensuring state neutrality. The
denial of benefits, which is basically an act of inaction, clearly favours the
10
employer and thus perverts the board’s intent of neutrality and fairness.
That the employer clearly gets a benefit, supplies additional evidence of
discrimination that can produce measurable disenfranchisement of the
labourer and imbalanced benefit at the labourer’s expense for the employer.
Clearly 36(1) of the EI Act is in violation of 15(1) of the charter, as well as the
fundamental principles of a democracy requiring that all are equal before
the law.
Now, how does all that apply to me? I was locked out by TELUS. Is there
evidence that TELUS is aware of labour and EI law by which they could make
plans for a protracted lockout? Their having hired a bevy of lawyers
certainly infers that they did, yes. There is no reason to suppose that TELUS
hired those lawyers in order to remain ignorant of labour law in any and all of
its aspects. At the very least as a responsible corporate entity, TELUS
requires knowledge of EI in order to administer its accounts. Furthermore,
as evidence of their legal preparations, TELUS took a very aggressive
stance towards the use of 94.2(1) of the Canadian Labour Code – see
evidence document #1.
And:
[127] The Board is dismayed that an experienced and sophisticated
employer should seek to take advantage of a “very carefully crafted”
undertaking given to the Board through its learned counsel, at public
hearings, in order to devise other circumstances that avoid the strict
wording of its undertaking. Such actions are contrary to effective
industrial relations and sound labour-management relations
promulgated by the Code in its Preamble. In the circumstances of this
case, the employer’s actions have had the consequence of poisoning
11
And, from citation 2004 FCA 438, in which the Federal Court of Appeals
dismissed with costs TELUS's appeal to the CIRB's dismissed appeal of
CIRB Ruling RD278:
[72] The applicants provided no authority for the proposition that
employee wishes had to be considered by the Board when determining
whether there was a valid labour relations purpose for issuing a single
employer declaration.
[83] Given these differences, it cannot be said that the 2004 Decision was
patently unreasonable in applying the more relevant Board
jurisprudence dealing with accretions to a bargaining unit.
[84] For these reasons, I am not persuaded that the 2004 Decision so
misinterpreted the Board's jurisprudence as to render it patently
unreasonable for the Board to exercise its discretion under section 18.1
without first ascertaining the wishes of the new employees.
[87] ... The complaint is unfounded in so far as it alleges that the 2004
Decision simply overlooked the fact that the 2001 Decision distinguished
between employees hired as a result of TELUS' expansion of its existing
operations, and employees of acquired companies. As I indicated
earlier in these reasons (at [19]), when making its 2004 Decision the
Board was very alive to this distinction: see, for example, paras. 186-88
and 313 of the reasons for the 2004 Decision.
See also para.s [89], [90], [96], [98], [100], [105], and
[112] For these reasons, I would dismiss the application for judicial
review with costs.
A retired employee has this to say about the new collective agreement:
I have grave concerns, (as do others), about our Pension Plan with this
Co. [TELUS] and this Union [TWU]. Last collective agreement there was
a cut of the employer’s contribution of .75%. The Co. is setting up their
own L[ong] T[erm] D[isability] plan and the criteria for qualifying will be
different than [it was for] the LTD plan under the T[elecommunications]
W[orkers] P[ension] P[lan]. Meanwhile, the Union has to continue funding
our LTD plan for the people who are still on it. So when I asked the
Administrator of the Plan where the money was coming from for that, she
said that they are doing a review of the LTD plan and will be negotiating
with the Co. to cover it, so, - how successful do you think we will be to get
more money out of the Company for our LTD plan? How does zero,
nada, nil, zilch, forget it, ha ha ha, sound to you. Because the C.A. was
written by the Co. there was NO consultation with our Plan. And the
members passed this C.A.
(As a point of interest, this issue of the LTD funding was not
discussed by the union executive at the ratification meeting I
attended, nor do I remember seeing it in their literature
preceding the second vote.)
And has the employer made good on the new found power it has? Yes.
TELUS has begun the process of dismissing significant portions of its
13
workforce, as it may now easily do under its current contract, but which
would have been more difficult under the old one. (For example, the DAC
offices on the second floor of the "Glenlyon" office – where I work on the
first floor.) This makes manifest one of the significant fears the
membership had while picketing, and that had kept them on the picket lines
17 weeks. The other was that the new contract would allow the company to
displace a unionized workforce at will with contract workers. And this too,
has begun to happen, as, for example, the janitorial services have been
expunged from the union and that vacuum has been filled by contract
workers. The company can, as the above example affirms, move any one
any where at any time – and this too, they have begun to do, and which most
employees believe has as its primary purpose getting as many
“troublesome” union-strong British Columbia employees to quit as they can.
(At a time the company can have many of the service jobs done anywhere in
the world, offices are being closed in BC and moved to Alberta at not
insignificant and, ostensibly, unnecessary expense.) And the final example I
will here cite is TELUS having surreptitiously announced its intention to keep
on staff until further notice some of the replacement workers as contract
workers in Installation and Repair. This is in contradistinction to its
preamble to the new collective agreement regarding contract workers in
"traditional/core" jobs, where the company announced that TWU members
may be required to work with contractors for no more than two weeks after
the locked out employees' labour return to work. (This requirement was also
specified in my indoctrination process, complete with Powerpoint slides,
that I was forced to submit to upon and as a condition of my return to work
after the dispute.)
TELUS (TSX:T) said it earned 53 cents per diluted share in the three
months ended Sept. 30, which compared with a profit of $156.6 million,
43 cents per share, in the same period a year earlier
The earnings came in just above an average forecast for a 52 cent per
share profit, based on 11 analyst estimates gathered by Thomson
Financial
Operating revenues for the period were $2.06 billion, up from $1.95
billion a year ago
Revenues from TELUS's mobility division were the main driver of the
upswing, increasing 16 per cent to $864 million year-over-year. But
stable revenues and a lengthy strike by workers in its communications
division kept revenues flat in that business at $1.2 billion in the quarter
And as final evidence of the breadth of TELUS's planning, I cite below one
members' recollection of a meeting that occurred between MP Peter Julian
(New Westminster), Bruce Bell and others members of the TWU.
NDP MP Peter Julian has been unquestionably our strongest supporter.
Carolyn Chalafeault (sp?) is from Local Labour Council (VDLC)
Peter Julian said the TWU does not have the political support required to
win this battle. On the other hand [TELUS CEO] Darren [Entwistle] has
big and powerful political support. It is not a co-incidence that the anti-
scab legislation [Bill: C-263, To prohibit the use of replacement workers
in labour disputes] was defeated. The political world has known for at
least a couple of years that Darren planned to use replacement workers.
He called in his political favours to make sure the bill did not pass.
There are many politicians saying that they wished that they could help
us but their hands are tied. The fact is they won’t help us. Legislation is
already in place that could be used to help us but they are choosing not
16
to use it. Although these politicians claim they can’t, the truth is they
won’t. Peter Julian sited many different examples of this to the group.
Peter said the truth is, this battle is over. Our only hope is to vote ‘yes’
giving us 5 years to prepare for the next battle. We should use that time
to put ourselves in a better political position.
Up to this point I have made general arguments relating to the failure of the
EI act to be neutral in a dispute in which the employer, as part of a union
breaking agenda that was years in the making, relies on EI to follow its
blinkered pattern of disentitlement rulings to abet their battle plan –
especially in the event of a lockout with expectations that it would be
protracted – such as what occurred at TELUS.
TELUS, has made it clear in its official lockout announcements that those of
us who find work with a competitor will be fired. From TELUS's pamphlet
entitled "Team Member Guidelines for Potential Work Stoppage":
Question: Can I work full-time or part-time for another
telecommunication's company or competitor?
Answer: No. Even during a work stoppage, you remain a
TELUS employee and are subject to conflict of
interest policies.
I question whether or not such an edict is legal or enforceable. However, as
an Outside Plant Technician (Tech Level III – now called "Engineering
Technologist" in the new collective agreement) specializing in
telecommunications, the only other comparably paid job that I am readily
qualified for, is with a competitor. And as an employee with twenty-four (24)
years in BC Tel/TELUS, I would be putting at risk, in seeking employment with
a competitor, twenty-four years of company contributions to my pension
because they do not lock in until my twenty-fifth anniversary. For myself, all
things being equal, the company whether deliberately (which I suspect) or
not, is taking advantage of the EI's desire to keep from employee's the
17
I repeat from JUDGEMENT NO: A-175-84 COURT FILE NO: 19094, re. CUB
8764;
b) Employer financing strike against himself
It is also argued that the legislature cannot have intended that the
employer, through his contribution to the unemployment
compensation fund, finance a strike against himself. This
argument does not take into account that such contributions will
eventually be shifted by the employer to the consumer or to his or
her employees. Such "financing" may not even materialize since
strikes are often of lesser duration than the usual benefit-waiting
period. Even if it did, the absence of benefits during the waiting
period, combined with the prospect of benefits amounting to a
fraction of normal wages, will rather dissuade labour unions
from calling a strike than encourage them to do so (Shadur,
supra, at p. 298). [My emphasis.]
I once again chose to find work outside of my field of expertise. And since I
had learned that I would be unable to survive financially or physically as a
competitive contract painter, I sought work less physically demanding, but
which I felt I would be capable of doing if given a chance. As I noted in my
original letter of appeal, I applied for a marketing position at the Arts Club
Theatre and as a lecturer/educator for the Council of Canadians, and a few
other lesser positions, without success. Not surprisingly, my being a
“mere” telecommunications engineering technologist, albeit with a good
vocabulary and creative turns of phrase, was not enough to get me hired at
any of these positions. I was more than willing to work during the labour
dispute – this is clearly shown by my having actually got a job for which I
worked 45 hour weeks – and by my applying for several other jobs when the
painting job was completed.
EI benefits are not a tool I can use to crush my employer. EI benefits are what I
would have been able to use to just barely get by without excessive reliance on
credit. EI's failure to act abetted the company's plans, as they applied to me, in
bludgeoning acceptance of its imposed "collective agreement" by inexorably
increasing my personal debt. Denying me benefits for which I had at least
partially contributed was in my particular circumstances neither fair nor neutral:
it abetted my employer's use of replacement workers to exhaust not only my
own personal resources but those of the TWU as well.
I now cite from two dead white philosophers. Their comments on the
balance of power between labour and the owners of labour of two hundred
and one hundred years ago are as vibrant and on point today as when they
wrote them. And while you may dismiss them with nary a thought as
belonging to a different time, I contend that, in our age of corporatist media,
a corporatist bias in the CIRB, a corporatist government that recently acted
to keep enacted replacement worker legislation, the pro-corporatist anti-
labour oligarchical nature of Canadian society today is not as far from what
Adam Smith and John Stuart Mill described as we would like to believe.
(Bk. V, Ch. 10 par 32: Mill, John Stuart. Principles of Political Economy
with some of their Applications to Social Philosophy. Edited with an
introduction by W. J. Ashley, M.A., M.Com., Professor of Commerce in
the University of Birmingham, Sometime Fellow of Lincoln College,
Oxford. 1909, London; Longmans, Green and Co. Based on the 7th
edition. First edition published 1848; first publication of the 7th edition,
1870.) [My emphasis.]
I have used a rather odd phrase, above: “… in our age of corporatist media,
a corporatist bias in the CIRB, a corporatist government …“ What do I mean
by that? Here are examples of what I mean. Throughout the labour dispute,
in typical anti-labour fashion, the media described the dispute as a “strike”.
Rarely was it described as a “lock-out.” When I managed to “catch” Fazil
Mihlar, an editorialist of The Vancouver Sun, libeling the TWU in The Sun’s
effort to abet TELUS its pre-lockout propaganda, not only did he admit to
having knowingly lied, but he rationalized it:
While it is true that the TWU proposed renewing the existing contract with
improvements, our considered judgement was since Telus [sic] was a
new company (merging of the two firms from Alberta and B.C.) and the
competitive landscape had changed, any proposal should consider these
realities. So in our view, there was no new proposal or counter proposal to
what Telus [sid] had on the table. [See evidence document #4a.]
When I rejected Mihlar’s self-serving, self-aggrandizing panegyric to the BC
Press Council, my complaint was dismissed because Mihlar’s editorial “was
not intended to be, and was not, a chronology of labor [sic] relations between
the Telecommunications Workers' Union and Telus [sic], or a chronology of
events.” See evidence document #4b.
The CIRB, during the course of the “negotiations”, and during the dispute,
developed a reputation amongst the labourers of delaying decisions
requested by the union; for example, the Union’s request for an expedited
decision to the CIRB on TELUS’s use of replacement workers to undermine
the TWU’s effectiveness as a bargaining agent was not acted on in 6 or 7
weeks. When TELUS was found guilty of unfair bargaining practices, TELUS
lost on appeal. That loss took almost a year to be decided, that year being a
delay that benefited TELUS’s “negotiating” replacement worker
preparations. But, most amazingly, in having re-confirmed that TELUS had
bargained unfairly, the CIRB struck the penalty that had been originally
imposed! See evidence document 5, from which I have cited the pertinent
bits. CIRB Board Files: 24220-C, 24375-C CIRB/CCRI Decision no. 317 April
20, 2005
[276] This reconsideration panel upheld, for the reasons set out in this
decision, the original panel’s ultimate findings that the employer
communications were impermissible and contrary to section 94(1)(a) of
the Code.
[277] This panel concluded that the imposition of the remedial relief,
21
...
And, finally, the failure of the federal government to remove from the labour
code the replacement worker legislation.
This is a cruel joke! Actually, it is a lie: none of the information asked for on
the form is required by 36(1) to determine my ineligibility to receive benefits.
As soon as I confirmed that my claim arose as the result of a labour dispute
on my initial application for benefits, regardless of any other circumstances,
my claim would be denied! In fact, as per FCA Docket A-90-81, my claim
would have been denied even if it had been unfair to deny it! With that stark
reality staring out at me from the jurisprudence, the questionnaire I filled out
on the state of my labour situation is a clear violation of section 12 of the
Charter:
Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment [my emphasis].
Knowingly giving someone under considerable financial pressure and
familial stress false hope is clearly a form of unusual treatment, in as much
as that was unnecessary. The questionnaire gave me hope that my claim
would not be denied. My employer locked me out for 17 weeks and the
labour dispute questionnaire proffered me a lie!
The Board would be far more honest and less cruel to have sent out an
immediate denial of the claim because I had indicated I was embroiled in a
labour dispute. I extend that argument, and suggest that the board made a
mockery of 36(1) by mailing me this questionnaire because not only did it
unnecessarily put false hope in my heart, it also wasted my time and the
time of the board’s agents. Furthermore, all of the questions asked were
either irrelevant, redundant, inappropriate or a violation of my rights.
Instead, the weak hope the Board could have offered would have been to
supply the meager means and reasons of how and why I could appeal that
denial. And honesty would have compelled them to state that such an
appeal would be without question denied. The rigmarole of having to fill out
the labour questionnaire not only wasted time and money, but delayed my
ability to appeal that denial by the time it took to the board to receive and
process the questionnaire.
I would like to point out that whether or not I am willing to cross a picket line is
not only irrelevant for the purposes of disentitlement – as your own
jurisprudence amply attests – but the existence of the question suggests that a
willingness to cross the picket line may actually qualify me for benefits.
23
document.) TELUS even directed their first level managers to follow up the
written advisory with a phone call – which I received some time in late
August or early September. I believe that both these acts are at least in
contravention of the Canadian Labour Code if not illegal harassment. That
TELUS then proceeded to proffer IPODS as bribes was illegal. Again, as
usual, neither the CIRB nor the Minister of Labour gave TELUS anything but
their union-breaking friendly blind eyes. Now, even if I had the morality of my
TELUS’s CEO to consider TELUS's offer of safe employment – which I do not
– and a willingness to violate my conscience and belief in social justice –
which I have not – I am protected from having to compromise either
because of the protection given me by 2(a) of the Charter.
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