The Legal Response to Striking at the Individual Level in the Common Law Jurisdictions of Canada

It is universally accepted that in the economic battle of a strike each individual striking employee must bear the temporary loss of his income, subject to any assistance his union can give him in the form of strike pay. It is not, however, universally accepted that he should be penalized by losing his job and accrued claims to seniority and fringe benefits such as pension, severance pay, sick pay, vacations and holidays. This is particularly so in the case of a legal strike. The legal striker is, after all, merely a participant, and perhaps not even a willing participant, in the system espoused by labour relations law for settling the terms and conditions of employment. The full extent of the legal protections against such losses has received little attention in Canada, probably because most unions win reinstatement and no-victimization as part of any strike settlement. Such is not always the case, however, and where the. union is weak and loses badly, the individual striking employees may be in jeopardy. It is with such employees that this paper is concerned