We’re back from the Christmas break and so are the courts and tribunals…

The Alberta Court of King’s Bench upheld a termination clause in an employment contract and found that, despite alleging just cause for termination, the employer could rely on that clause at trial. The clause in question read:

The Company will be entitled to terminate your employment:

(a)               Immediately for just cause;

(b)               By providing you with notice of termination, or pay in leu of such notice in accordance with notice provisions as described in the Offer of Employment letter dated 09/05/2013.

[The Offer of Employment Letter said: “90 days’ notice to terminate to be provided by the employee and a 90 days’ notice period for the employer”]

In this lengthy decision, the Federal Court of Appeal granted judicial review of a decision rendered by the Canadian Human Rights Tribunal on the basis that the hearing was procedurally unfair, adopted the wrong test for bias, and that an Addendum submitted by the panel member demonstrated bias against the complainant: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2025 FC 18

The Court put considerable weight on the fact that the employee was sophisticated, had considerable bargaining power, negotiated the terms of his contract, and that the employer agreed to the termination provision sought by the employee: Singh v Clark Builders, 2025 ABKB 3

The Alberta Human Rights Commission released a pair of decisions to start the year involving the same complainant. The complaint involved an allegation that the complainant was discriminated against on the grounds of religious belief when his employment was terminated during the probationary period after he had cancelled two shifts in order to attend the funeral rites of his ancestral king that had recently passed away in Nigeria. The Tribunal found that the complainant did not raise religious grounds at the time he cancelled the shifts so the termination was not in any way related to a religious ground. Instead, the Tribunal found the complainant was subject to legal restrictions that would not allow him to perform his job as a security guard and that was the reason he cancelled his shifts: Shodunke v Paladin Security Group Ltd., 2025 AHRC 1

That decision on the merits of the complaint was followed by a decision considering the respondent’s application for costs against the complainant. The Tribunal found that the complainant was dishonest in his dealings with the Tribunal and the respondent. He failed to report a criminal charge that would impact his ability to do his job and withheld a key document document. He failed to cooperate with the Tribunal, didn’t respond to emails, did not follow the Bylaws, and caused unnecessary delays in the hearing process. The complainant in his closing submissions quoted verbatim the evidence of witnesses, counsel, and the Chair raising suspicions that he had recorded the hearing without permission. When given an opportunity to explain himself, he provided no evidence that he didn’t record the hearing and tried to deflect by submitted:

To show to this Tribunal my proficiency in shorthand and fast writing (which I did to jot down relevant points during the hearing for my defence and response to Paladin – in my written submission) and profound comprehension in my brilliant brain, permit me to refer you to only one of the stories that I published in (my) Gateway Mail on July 15, 2018….

Last year, the Tribunal ordered a disruptive respondent to pay three individual complainants $10,000. The respondent in this case sought “at least” $20,000 in costs. In a rare case of the Tribunal ordering costs against a complainant, the Tribunal ordered costs in the amount of $25,000: Shodunke v Paladin Security Group Ltd., 2025 AHRC 2

The Alberta Labour Relations Board dismissed a duty of fair representation complaint at the documentary review stage, as is typically the case. What makes this decision somewhat interesting is the fact that the Board considered whether the union failing to properly investigate and advise the complainant about a deadline to apply for a COVID payment constituted a breach of the duty of fair representation. Unions are allowed to make mistakes without breaching the duty, however, serious negligence is a different story. Here, the Board found that the union’s mistake was not a gross error and therefore not serious negligence. No breach of the duty of fair representation resulted: Power v Health Sciences Association of Alberta, 2025 ALRB 5

The employee in this matter was terminated in 2019. After grieving the termination, the employee was reinstated following a hearing in 2023. The employer was ordered to compensate the employee for lost wages and benefits during the time he was out of work. This decision considers how to apply an employee’s earnings in mitigation as well as what to do about income the employee received from performing a second job that he had been also been doing on the side prior to his termination. The employer argued that all of this income should be deducted from what it owes the employee. The union argued that none of it should be deducted. Ultimately, the arbitrator did some math and adopted a pattern-based approach to carve out an amount that would have reflected how much the employee earned in this role prior to his termination: Purolator Inc. v Teamsters Local Union 938, 2025 CanLII 47 (CA LA)

An application to dismiss a class action brought against the Crown by federal public service employees (including members of the RCMP) who suffered employment consequences as a result of the imposition of a COVID-19 vaccination policy was granted in part. Parts of the claim that could be heard through the grievance process were struck and leave was granted to amend the claim to clean up issues concerning plaintiffs that did not have grievance rights: Payne v. Canada, 2025 FC 5 

Return to the office mandates were in the news recently. Many departments of the federal government were reported to have failed to meet their targets for return to the office policies. As of January 2 this year, Amazon’s 8,000 corporate employees based in Canada are required to work in the office five days per week ending a hybrid practice that had been in place since 2023.

In resolving objections raised by the employer in an application for certification, the Alberta Labour Relations Board considered the meaning of “office and clerical” workers and determined chemists and lab technicians did not fit that description: Unifor, Local Union No. 4050 v Air Liquide Canada Inc., 2025 ALRB 1

The Alberta Labour Relations Board dismissed an employer’s appeal of an Order of Officer awarding termination pay for an employee under the Employment Standards Code. The employer classified all of its employees as “construction” workers and applied the exception in s. 5(1) of the Regulations to avoid paying termination notice to its employees. Classifying everyone as a construction worker simplified payroll even though employees would work construction or driving truck depending on the season. The Board found that the employer had incorrectly classified the employee as a construction worker when his duties at the time of termination were that of a truck driver so the exception did not apply: Sub-Terrain Excavating & Trucking Ltd. Operating as Sub Terrain Excavating v Ross, 2025 ABESAB 1