FAQ's Cases - Stewart McKelvey

23[103] Also, in The Newspaper Guild v. The Leader-Post, a Division of Armadale Co.Ltd., 23 the Board noted that in making its analysis of the decision, it would not enter directly intoan evaluation of the merits of the decision.For our purposes, however, the motivation of the Employer is the central issueand in this connection the credibility and coherence of the explanation for thedismissal put forward by the Employer is, of course, a relevant consideration.We are not required, as an arbitrator is, to decide whether a particular cause fordismissal has been established. … Our task is to consider whether theexplanation given by an employer holds up when the dismissal of an employeeand some steps taken in exercise of rights under The Trade Union Act coincide.The strength or weakness of the case an employer offers in defence of thetermination is one indicator of whether union activity may also have entered intothe mind of the Employer.2011 CanLII 72774 (SK LRB)[104] The explanation offered by the Employer in this case was, firstly, that thedecision to implement layoffs had been taken prior to commencement of the organizationaldrive, but had been postponed by the Farm Progress Show and the Plant Opening Celebrationsin June of 2011. Secondly, the Employer noted that who was to be laid off was determinedsolely by Ms. Outerbridge and Mr. Riddock based upon length of service, attendance issues,performance issues and level of remuneration. Thirdly, the layoffs were restricted to the grainauger production employees since there were still outstanding orders for grain bins. Finally, itnoted that no new employees had been hired since the layoffs to fill the vacancies created whenthe six employees were laid off.[105] Counsel for the Union argued that other choices could have been made withrespect to which employees were chosen for lay off. As noted in The Newspaper Guild v. TheLeader-Post, a Division of Armadale Co. Ltd., it is not for the Board to determine or secondguess the Employer’s decision respecting the lay off or termination, unless it can be shown thatthat decision was, in itself, motivated by some anti-union animus.[106] In United Steelworkers of America and Brandt Industries Ltd. 24 , the Board hasnoted that “where there is a choice of employees to be laid off, the employer must go furtherand explain why it chose to lay off one employee and not the other.” In that respect, Ms.Outerbridge provided a document 25 outlining the criteria utilized by the Employer for those23 [1984] 1 st Quarter Sask. Labour Rep. 242 at 248.24 Supra, Note 625 See Exhibit E-8