Court of Appeal Affirms Prohibition Against Individual Bargaining
The Court of Appeal has held that employers can not bargain terms or conditions of employment with individual employees. In the words of Mr. Justice Laskin, “the law prohibits a unionized employer from bargaining conditions with an individual employee.”
The case before the Court of Appeal involved a professor at Loyalist College who was released prior to the completion of her probationary period. When she was hired the College demanded, and the grievor agreed, that her hiring was based on the requirement that she “pursue professional
development”. “OPSEU was not consulted” noted the Court. Ultimately, the grievor was released on the sole basis that she had not complied with the requirement to pursue professional development despite her strong in-class performance.
A grievance was filed and the Board of Arbitration held that the requirement to pursue professional development was invalid and unenforceable because it had not been negotiated with the Union. The College’s application for judicial review of the Board of Arbitration’s decision was dismissed by the
Divisional Court. And now the highest court in Ontario has confirmed that employers can not negotiate special terms or conditions of employment with a prospective employee that have the effect of undermining the protection provided by the collective agreement. Rather, unionized employers must deal with the union.
The employer's application for Leave to Appeal to the Supreme Court of Canada was dismissed with costs on November 20, 2003.
Click here for full decision .pdf
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