Labour and Employment Law Conference 2010 Friday, March 19, 2010

Transcription

1 Labour and Employment Law Conference 2010 Friday, March 19, 2010 Four Seasons Hotel 791 West Georgia Street Vancouver, British Columbia

2 McCarthy Tétrault LLP Lawyer Profile PAUL A. BONIFERRO TITLE Partner OFFICE Calgary DIRECT LINE LAW SCHOOL Osgoode Hall Law School, LLB, 1991 BAR ADMISSIONS Ontario, 1993 Alberta, Biography Paul Boniferro is a partner and the National Practice Group Leader of our Labour and Employment Group practising in Toronto and Calgary. Mr. Boniferro is a past member of McCarthy Tétrault s Board of Partners. He uses his unique combination of experience gained in the private and government/political sectors to advise clients on a wide spectrum of employment issues, including executive compensation, terminations, wrongful dismissals, grievance arbitration, collective agreement negotiations, human rights complaints, government relations, occupational health and safety issues and WSIB claims. His advice has been sought by governments of all stripes to provide assistance in developing policy and legislation in labour and employment law. Mr. Boniferro is a bi-annual presenter to the Retail Roundtable Compensation Survey Group where he updates all major Canadian Retailers on developments in the area of Labour and Employment Law. Mr. Boniferro recently acted as Chief Spokesperson for the Government of Ontario in collective bargaining with OPSE (Ministry of Correctional Services). In addition Mr. Boniferro assisted the Liquor Control Board of Ontario in averting a strike with its unionized employees. Prior to joining McCarthy Tétrault, Mr. Boniferro was a Senior Policy Advisor to the Ontario Minister of Labour during one of the province s most significant periods of labour relations reform, where he advised the government on changes to the Labour Relations Act, the Workers Compensation Act, the Employment Standards Act and the Pay Equity Act. Since joining McCarthy Tétrault in 1996, he has been retained by the government on a number of occasions to provide advice on labour relations and employment issues. In 2004, Mr. Boniferro was appointed to the Minister of Labour s Employment Standards Action Group, and prior to that, was appointed by the Premier of Ontario to act as Special Negotiator with Québec on construction labour mobility. He represents a wide number of private and public sector employers, both unionized and non-unionized, including those in manufacturing, energy, property management services, steel and hospitality.

3 Lawyer Profile PAUL A. BONIFERRO Mr. Boniferro appears in the 2003 Canadian Legal Lexpert Directory, a guide to the leading lawyers in the area of labour and was selected as one of Lexpert s Top 40 Under 40 in September A much-requested presenter at labour and employment conferences, he is also an instructor for the Human Resources Professionals Association of Ontario (HRPAO) and is the past-chair of the HRPAO Government Affairs Committee. He is also a member of the Human Resources Association of Calgary (HRAC) and the Canadian and Calgary Bar Association, Labour and Employment Subsection. Mr. Boniferro received his BA (Political Science) from the University of Western Ontario in 1987 and his LLB from Osgoode Hall Law School in He was called to the Ontario bar in Mr. Boniferro has also studied in the MBA program at Lake Superior State University in Michigan. Page 2 Lawyer Profile

4 McCarthy Tétrault LLP Lawyer Profile JORDANNA CYTRYNBAUM TITLE Associate OFFICE Vancouver DIRECT LINE LAW SCHOOL University of British Columbia, LLB, 2003 BAR ADMISSIONS British Columbia, 2005 Biography Jordanna Cytrynbaum is an associate in the Vancouver office practising in the Litigation Group and the Labour and Employment Group. Her practice focuses primarily on civil litigation. Some of her recent experience includes defending human rights complaints, employment standards complaints and labour code complaints, defending wrongful dismissal actions, disability insurance litigation, litigating distribution agreement disputes and both applying for and defending injunction applications. Ms. Cytrynbaum received her BA (honours) in Psychology from Simon Fraser University in 2000 and her LLB from the University of British Columbia in Ms. Cytrynbaum was called to the British Columbia bar in Ms. Cytrynbaum is a member of the Canadian Bar Association and the Vancouver Bar Association.

5 McCarthy Tétrault LLP Lawyer Profile TINA GIESBRECHT TITLE Partner OFFICE Calgary DIRECT LINE LAW SCHOOL University of Manitoba, LLB, 1993 BAR ADMISSIONS Manitoba, 1994 Alberta, Biography Tina Giesbrecht is a partner in our Labour and Employment Group in Calgary. Ms. Giesbrecht advises a wide spectrum of both federally and provincially regulated clients on labour and employment matters including grievance arbitration, human rights complaints, executive compensation employment contracts, personnel policies, fiduciary obligations, non-competition and non-solicitation agreements. She also advises clients on employment issues arising from the purchase and sale of businesses including group terminations and successorship rights. In addition, Ms. Giesbrecht advises employers on privacy, workers compensation, occupational health and safety matters and termination of employment. Prior to joining McCarthy Tétrault, Ms. Giesbrecht practised in Winnipeg and taught employment law at the University of Manitoba. She regularly writes articles and presents seminars on a variety of labour and employment law issues. Ms. Giesbrecht is past Chair of the CBA Labour and Employment Subsection, Alberta Bar Association and a member of the Canadian Bar Association, the Law Society of Alberta, the Law Society of Manitoba, the Manitoba Bar Association, the Canadian Association of Counsel to Employers and the Human Resource Association of Calgary. She received her BA in 1990 and her LLB in 1993 from the University of Manitoba. Ms. Giesbrecht was called to the Manitoba bar in 1994 and to the Alberta bar in 2001.

6 McCarthy Tétrault LLP Lawyer Profile SUNIL KAPUR TITLE Partner OFFICE Toronto DIRECT LINE LAW SCHOOL Osgoode Hall Law School, LLB, 1995 BAR ADMISSIONS Ontario, Biography Sunil Kapur is a partner in our Labour and Employment Group in Toronto. Mr. Kapur s practice is focused exclusively on management-side labour, employment and human rights law. Mr. Kapur has advised and represented employers in the sectors of financial services, manufacturing, transportation, education, health care, security, information technology, resources and public service. Mr. Kapur has advised and represented those employers in labour board proceedings, arbitration, mediation, collective bargaining, employment litigation, judicial reviews, civil appeals and human rights. Mr. Kapur has advised numerous fortune 500 companies on labour and employment matters arising from mergers and acquisitions. He regularly provides training for clients on a wide range of issues. Mr. Kapur is a member of the Advisory Committee to the Ontario Labour Relations Board. He is also a part-time member of the Ontario Human Rights Tribunal. Mr. Kapur is a regular speaker on labour, employment and human rights matters. He is a member of the business committee of the Toronto Board of Trade, the business and employment sections of the American Bar Association, the Ontario and Canadian Bar Associations and the Canadian Association of Counsel to Employers. Mr. Kapur received his B.Sc. from the University of Toronto in He was an Ontario Graduate Scholar and has won several academic awards from the University of Toronto. Mr. Kapur received his LLB from Osgoode Hall Law School in 1995 and was called to the Ontario bar in 1997.

7 McCarthy Tétrault LLP Lawyer Profile CHRISTOPHER McHARDY TITLE Partner OFFICE Vancouver DIRECT LINE LAW SCHOOL University of British Columbia, LLB, 2000 BAR ADMISSIONS British Columbia, 2001 Biography Christopher McHardy is a partner in the Vancouver Labour & Employment Group. He advises employers on a broad range of issues relating to labour, employment, human rights, privacy and immigration law. His experience includes: advising US clients on labour, employment, privacy and immigration laws in connection with establishing business operations in British Columbia; advising employers on, and preparing and negotiating, employment and consulting agreements, restrictive covenants; workplace policies, employee handbooks and other employment-related documents; advising on labour and employment issues in corporate mergers, acquisitions and outsourcing; advising employers on union certification drives and applications, decertification applications, unfair labour practices and collective bargaining; and representing employers in collective bargaining; defending employers against employee claims in provincial and superior courts, the Human Rights Tribunal, the Employment Standards Tribunal, the Labour Relations Board, labour arbitration boards, the Workers Compensation Board and its Appeal Tribunal, the Privacy Commissioner and other administrative bodies; representing employers in mediation and other alternative dispute resolution processes; advising employers on human resource management practices, privacy laws, union avoidance, and employee hiring, layoffs and terminations; and advising and assisting organizations and individuals with immigration matters, particularly work permits, Provincial Nominee Program applications and permanent residence. Mr. McHardy received his B.Comm. (1997 Honours) and his LLB (2000) from the University of British Columbia. Mr. McHardy has focused his practice on labour and employment matters since his call to the BC bar in 2001.

8 McCarthy Tétrault LLP Lawyer Profile EARL G. PHILLIPS TITLE Partner OFFICE Vancouver DIRECT LINE LAW SCHOOL University of Victoria, LLB, 1980 BAR ADMISSIONS British Columbia, 1981 Biography Earl Phillips is a partner in the firm s Vancouver office practising in the Labour and Employment Group. His recent experience includes: labour arbitrations regarding substance abuse, collective agreement interpretation, medical information, privacy, attendance management, surveillance and theft; labour board hearings regarding unfair labour practice complaints, true employer, successor and common employer issues, and certification and decertification applications; labour and employment issues in restructurings and reorganizations; human rights issues regarding attendance management, religious rights, substance abuse, disability, and the duty to accommodate; and negotiating and drafting executive employment contracts. Mr. Phillips regularly appears before federal and provincial tribunals and arbitration boards and the courts of British Columbia. He is a frequent writer and speaker on various topics including, most recently, significant Supreme Court of Canada decisions, mandatory retirement, employment privacy, disability management, whistleblowing, substance abuse in the workplace and general employment practices. Mr. Phillips is recognized in the 2010 Canadian Legal Lexpert Directory, a guide to the leading law firms and practitioners in Canada, as a leading lawyer in the area of employment law. Mr. Phillips is a member of the Human Resources Management Association of British Columbia and of the BC Labour and Employment Sections of the Canadian Bar Association. He also serves as a director of the Regent College 2000 Foundation and The Children s Foundation.

9 McCarthy Tétrault LLP Lawyer Profile DONOVAN PLOMP TITLE Associate OFFICE Vancouver DIRECT LINE LAW SCHOOL University of British Columbia, LLB, 2000 BAR ADMISSIONS British Columbia, 2002 Biography Donovan Plomp is an associate in our Labour and Employment Group in Vancouver. He has appeared as counsel in matters before the British Columbia Labour Relations Board, the Canada Industrial Relations Board, the British Columbia Human Rights Tribunal, the Supreme Court of British Columbia and grievance arbitration panels. He has also assisted clients in drafting employment contracts and policies, as well as advising on a wide variety of workplace issues including privacy, disability, and the application and interpretation of collective agreements. His recent experience includes: advising employers regarding various human resources and labour relations issues, including employee disability, attendance management, human rights and employment policies, and terminations; representing employers in wrongful dismissal and other employment related litigation; representing unionized employers in grievance arbitration and labour relations board proceedings, including discharge, discipline, interpretation of collective agreements, unlawful strike and unfair labour practice complaints; advising employers regarding union organizing campaigns and certification and decertification applications; and advising on labour and employment issues in corporate mergers, acquisitions and reorganizations. Mr. Plomp received a BA (Hons) from the University of Ottawa in 1997, and his LLB from the University of British Columbia in After graduating from law school, Mr. Plomp served as a judicial law clerk with the Supreme Court of British Columbia. Mr. Plomp was called to the British Columbia bar in Mr. Plomp is a member of the Canadian Bar Association and the British Columbia Human Resources Management Association. He is currently the Chair of the BC Employment Law section of the Canadian Bar Association.

10 McCarthy Tétrault LLP Lawyer Profile ERIKA L. RINGSEIS, Ph.D. TITLE Associate OFFICE Calgary DIRECT LINE LAW SCHOOL University of Calgary, LLB, 2002 BAR ADMISSIONS Alberta, Biography Erika L. Ringseis is an associate in our Labour and Employment Group in Calgary. With a Ph.D. in Industrial/Organizational psychology, Ms. Ringseis has a strong interest in workplace issues. Her practice focuses on all areas of labour and employment law, including grievance arbitrations, wrongful dismissals, workplace violence, discrimination and harassment issues, leave and employee relations issues, and privacy. In addition to appearing before arbitration boards, mediation conferences and tribunals, and at various levels of courts in Alberta, Ms. Ringseis has taught and prepared a number of undergraduate and graduate courses, workshops, seminars and guest lectures on various employment, labour, psychology and legal topics including: Employment Standards Code in Alberta, Human Rights Privacy Law and Employment Records conferences prepared for Lorman Education Services, on an ongoing basis; The Fundamentals of Canadian Employment and Human Rights Law workshop presented at the Canadian Institute s Western Canadian Forum on Employment Law, Calgary, 2008 and 2009; Discrimination in Employee Selection: The Canadian Legal Framework presentation at the 26 th International Congress of Applied Psychology, Athens, Greece, 2006; and From the First Handshake to the Last Paycheque: Legal Aspects of Supervision ; workshop seminar prepared and presented to employers throughout Alberta with the Northern Lakes College, In addition to oral presentations, Ms Ringseis written publications include: Damages Awarded at Trial are Reinstated: the Supreme Court of Canada Gives its Ruling in RBC Dominion Sercurities Inc. v. Merrill Lynch Canada Inc. et al. by E. Ringseis and H. Singh, in Ultimate Corporate Counsel Guide, No. 22 (October, 2008); and

11 Lawyer Profile ERIKA L. RINGSEIS, Ph.D. Judicial Review of Arbitration Awards in Alberta: Frequency, Outcomes & Standards of Review by E. Ringseis and A. Ponak, in Canadian Labour & Employment Law Journal, Vol. 13 at p. 301 (2007). Ms. Ringseis is an active participant in the Calgary legal community as Chair of the Canadian Bar Association southern Labour/Employment subsection. She is a member of the Canadian Bar Association and the Canadian Society for Industrial and Organization Psychology. She is also a member of the Association of Women Lawyers. Ms. Ringseis is a volunteer lawyer with the Calgary Legal Guidance, Student Legal Assistance, and a volunteer judge for Jessup and McGillvray Law Moots. Page 2 Lawyer Profile

12 McCarthy Tétrault LLP Lawyer Profile JACQUES ROUSSE TITLE Partner OFFICE Montréal DIRECT LINE LAW SCHOOL Université de Montréal, LLL, 1981 BAR ADMISSIONS Québec, Biography Jacques Rousse is the firm-wide Practice Group Leader of our Labour and Employment Group. He is a partner practising in Montréal. He advises management in all matters with respect to human resources and executive compensation. In the event of litigation, he acts before arbitration boards, administrative tribunals and the civil courts in matters related to grievance arbitration, employment contracts, wrongful dismissals and human rights complaints. Mr. Rousse also appears before tribunals in matters concerning workers compensation, occupational health and safety, and privacy law. Furthermore, he has acquired considerable experience in collective bargaining, as well as in labour and employment matters related to restructurings and mergers and acquisitions. He represents a wide number of private and public sector employers both unionized and non-unionized, including companies and organizations in the manufacturing, health, financial, hospitality and service sectors. Mr. Rousse is a member of the Ordre des CRHA et CRIA du Québec. He has spoken at numerous conferences and seminars related to labour relations, human rights, and occupational health and safety. He received his LLL from the Université de Montréal in 1981 and was called to the Québec bar in 1982.

13 BC Labour and Employment Update Earl Phillips and Christopher McHardy March 19, 2010 McCarthy Tétrault LLP P.O. Box 10424, Pacific Centre Suite Dunsmuir Street Vancouver, BC V7Y 1K2

14 BC Labour and Employment Update Introduction It has been another active year for the courts, tribunals and arbitrators dealing with labour and employment issues. We have not had a run of blockbuster cases from the Supreme Court of Canada like we discussed last year, but we are starting to see the effects of those cases. By and large, the news is better for employers, but it remains a challenge to keep up with the developments. Human Rights Human rights issues continue to dominate the labour and employment news. At the same time, employment related human rights matters continue to dominate the human rights case lists. A rough guess says that at least 75% of the labour and employment issues we advise on have a human rights element. The issues come up in labour arbitration, workers compensation, employment standards and wrongful dismissal cases, and are a regular feature of the day-to-day advice we give on workplace matters. Meanwhile, a more precise study of the work of the BC Human Rights Tribunal over a recent eight month period shows that the Tribunal lives on employment based human rights disputes. A full 75% of the final decisions rendered by the Tribunal in that period were employment based. The good news is that the employer won in half those cases. The bad news is that they are expensive victories: the average case took more than five days of hearing. The good news/bad news dichotomy will be repeated as we review the developments in the last year. The final good news though, is that there is more good than bad. What is / what is not discrimination Aversion to live experiments on rats There are new problems being discovered all the time, and that means there are surprises in the workplace. A lab worker at the University of Western Ontario developed an aversion to a basic part of his job he could no longer handle experiments on live rats. The arbitrator noted there was no medical diagnosis for that type of disability and it was necessary to distinguish between a disability and a simple preference not to do a certain type of work. On the other hand, there were objective symptoms of a problem anxiety, nausea and insomnia that had to be considered. The arbitrator BC Labour and Employment Update Page 1

15 adopted what she called a multi-dimensional approach that includes a socio-political approach in preference to a strictly biomedical approach, and decided in favour of the employee. 1 Stress claims under Workers Compensation Act A concern arose with how Worksafe BC was handling stress claims. The Court of Appeal determined that the Worksafe BC policy for interpreting the traumatic event required by the Workers Compensation Act was discriminatory in that it created a significantly higher threshold for workers with purely mental injuries. 2 The Court ordered the policy to be amended and Worksafe BC has responded. A traumatic event may now include an emotionally shocking event and the worker s reaction may be delayed. Racial discrimination But not every complaint will meet the test of discrimination. A law firm employee filed a complaint of racial discrimination. The employer was able to answer every allegation and negated any inference of discrimination, even though there were conflicts in the parties submissions and some issues of credibility. The employer was successful in having the complaint dismissed at a preliminary stage on the basis that there was no reasonable prospect of success. The Tribunal stated that a ruling on an application to dismiss before a hearing must be based on all the material before it, but conflicts in the evidence and even issues of credibility do not prevent the dismissal of a complaint. The Tribunal decided this was an employment relationship that had gone bad, not a case of discrimination. 3 Attendance management Attendance management programs The BC Supreme Court has righted the ship on attendance management. Two years ago we reported on the BC Human Rights Tribunal decision that labelled Coast Mountain Bus Company s attendance management program ( AMP ) as systemic discrimination. Just after last year s conference, the BC Supreme Court overturned the most significant aspects of the Tribunal s decision by ruling: 1 University of Western Ontario, [2008] O.L.A.A. No. 192 (QL), Knopf 2 Plesner v. BC Hydro, 2009 BCCA McWhinney v. Soleman Hashmi, et al., 2009 BCHRT 132 BC Labour and Employment Update Page 2

16 the application of the AMP to employees with chronic or recurring disabilities was not discriminatory; the early placement of employees in the AMP was not discriminatory it is not systemic discrimination to monitor employee attendance and provide warning letters to those with excessive absenteeism; the AMP did not fail to accommodate disabled employees; and the AMP was a bona fide occupational requirement. 4 The Union has appealed and the matter is scheduled to be heard by the Court of Appeal next week. We do not expect the union to succeed. Warnings about attendance Another attendance management issue at the Tribunal ended very happily for the employer. The complainant argued that the warnings he received about his poor attendance amounted to discrimination on the basis of disability and was retaliation for a previous human rights complaint that had been settled. The Tribunal noted what the Supreme Court said in Coast Mountain and determined that there was no discrimination or retaliation, but rather that the employer had the right to warn an employee who had been absent for the vast majority of a two year period. 5 The Tribunal then went further and determined that the Complainant had not acted in a good faith belief that his rights had been violated. In fact, the Tribunal said, he was looking for a financial windfall and protection from the consequences of his own behaviour. He made extreme allegations against his employer and its management with little regard for the truth, and he compromised the settlement processes of the Tribunal by making a baseless claim of retaliation. The Tribunal concluded by ordering the Complainant to pay the employer $3,000 as costs for improper conduct. Prima facie discrimination: Is the disability causing the problem? Employees often blame work related misconduct on a disability. If there is no dispute about the existence of the disability, many adjudicators find it easy to draw the conclusion that there is prima 4 Coast Moutain Bus v. CAW-Canada, 2009 BCSC Horn v. Norampac Burnaby, a Division of Cascades Canada Inc., 2009 BCHRT 243 BC Labour and Employment Update Page 3

17 facie discrimination and then move on to the BFOR and duty to accommodate analysis. The O Malley v. Simpson-Sears Ltd. test is usually cited: A prima facie case of discrimination is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant s favour in the absence of an answer from the [employer]. 6 Disability and excessive absenteeism Other adjudicators are not so quick. Instead, they insist there be some nexus between the disability and the conduct involved. In one case, an employee with excessive absenteeism was terminated and then reinstated on a last chance agreement. He went AWOL again and was terminated, after which he provided medical evidence showing that he had always suffered from depression. But the only evidence of a nexus between the depression and the absenteeism was the grievor s own testimony, which the arbitrator held was lacking in credibility. The grievance was dismissed. 7 In another absenteeism case, the terminated employee was denied EI benefits because of his misconduct. He went on a drinking binge and then into detox, and did not show up for work for a 10 day period. The original denial of benefits was then overturned on the basis that the employee s conduct was a symptom of his alcoholism, not wilful misconduct. The case went to the Federal Court of Appeal which ruled against the employee. While a terminated employee would not be denied benefits if he could show he was an alcoholic and that his misconduct had been involuntary as a result, the Court noted there was no medical evidence to provide the connection. 8 Disability and theft A third case of this type involved a drug addict who stole scrap copper from his employer over a one month period. After being terminated, he attended Narcotics Anonymous and was making good recovery progress. But he also tried to get EI benefits by lying about the reason for being terminated specifically denying the previously admitted thefts. The arbitrator was not impressed, noting the premeditated thefts and his subsequent dishonesty with EI. The grievance was dismissed. 9 Alcohol and drug testing We continue to see cases ruling on different types of testing at different times and for different reasons. The individual cases can cause confusion and it sometimes seems that basic principles are 6 O Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R Canada Post Corp., [2009] C.L.A.D. No. 79 (McPhillips) 8 The Attorney General v. Bigler, 2009 FCA 91 9 Tyco Thermal Controls (Canada) Ltd., [2009] O.L.A.A. No. 15 (Harris) BC Labour and Employment Update Page 4

18 being changed. Some analysis tries to categorize what is allowed by looking at the type of testing: - site access, random, safety sensitive, post incident, last chance monitoring, etc. But the basic principles remain the same: testing for drug or alcohol use is generally prohibited unless it is reasonable. The next two cases help to explore some of the reasonableness considerations. Odd behaviour and smell of alcohol An employee began to exhibit some odd behaviour and was absent for several days. After several unsuccessful attempts to contact him, the employer called the union and the police. The employee responded with a call to his supervisor in which he slurred don t ever call the cops again and hung up. The next time he reported for work, he smelled of alcohol and his supervisor told him to wait for a meeting. Instead, the employee went home until he was called again and told to come in. He came back to work and stilled smelled of alcohol. He was asked to take an alcohol test in accordance with company policy that calls for testing when there are grounds to believe the employee is not fit for duty. He refused to be tested and was suspended. He then grieved. The arbitrator held that the employer had reasonable cause to ask for the test, noting Reporting for duty in that condition and in a context of erratic or out-of-character behaviour justified a response. 10 Access to site testing A contractor in Alberta had testing policies in its collective agreement that incorporated certain guidelines endorsed by the construction industry. It then got a contract with Petro-Canada which required compliance with Petro Canada s pre-site access testing policy. Employees were given two months to complete the testing and were told how long it would take for various drugs to clear their systems. They were also given EAP information and told that a refusal of the test would lead to layoff from the site, while a positive test would lead to assessment and counselling with the ability to return to the site. The union only grieved on behalf of existing employees. At the Court of Appeal, they were successful in establishing that the collective agreement only allowed pre-employment testing, not testing to allow existing employees access to a particular site. 11 The case finally turned on what had been agreed in the collective agreement and the inability of the employer to impose new testing requirements without the agreement of the union. But the arbitrator and the Alberta Court of Queen s Bench had determined that a policy for testing before allowing access to the site was justifiable in the context of the workplace and its history. Even the Court of Appeal 10 Eurocan Pulp & Paper Co., [2009] B.C.C.A.A.A. No Bantrel Constructors Co., 2009 ABCA 84 BC Labour and Employment Update Page 5

19 implied that it might have been justifiable, but for the specific collective agreement language which had not been met. Both these cases show that testing may be reasonable and allowed in the right circumstances, and when pursued in a reasonable fashion. Mandatory retirement Provincial employers have been dealing with the loss of mandatory retirement for some time. Now, federal employers have to face the prospect as well. The Canadian Human Rights Act says it is not discriminatory to terminate an employee who has reached the normal age of retirement for employees working in positions similar to the position of that individual. Recent cases have held that the mandatory retirement exception is unconstitutional as it violates the section 15 equality rights under the Charter of Rights and Freedoms. 12 Sexual harassment Here is a case to help you convince your colleagues or boss that you should have a sexual harassment policy for your workplace. The BC Human Rights Tribunal dismissed a sexual discrimination claim at an early stage because the employer had a policy, investigated the complaint, and took action to resolve the problem. The complainant was not happy with the outcome but the Tribunal refused to hear her case. The Tribunal emphasized the importance of encouraging employers to have, use and enforce harassment policies. As long as the policy, process and result are reasonable, the Tribunal is unlikely to entertain the complaint of a dissatisfied employee. 13 Family status discrimination Discrimination on the basis of family status is the new growth area in human rights law. There are more claims coming forward as the proliferation of families with two working parents creates inevitable challenges in caring for the kids, and the aging population creates more elder care obligations on employees. At the same time, there are different views of what is needed to establish discrimination on the basis of family or marital status. 12 Vivien v. Air Canada, [2009] C.H.R.D. No. 24 (QL); and CKY-TV, [2009] M. J. No. 336 (QL) 13 McLuckie v. London Drugs and Bob Thompson, 2009 BCHRT 409 BC Labour and Employment Update Page 6

20 The serious interference with substantial duty test The BC Court of Appeal held in 2004 that prima facie discrimination on the basis of family status could only be found in cases of serious interference with a substantial parental or family duty or obligation of the employee. 14 The court was concerned that every conflict between work and child care responsibilities could otherwise be the basis for a discrimination complaint. That test has been much criticized and it is often forgotten that the court actually held in favour of the complainant. The employer had altered the hours of work and made it impossible for the employee to provide the medically necessary after-school care for her seriously disabled child. BC Human Rights Tribunal approach Some critics say that the BC Court of Appeal s test is too stringent and makes family status discrimination secondary to other prohibited grounds of discrimination. But the BC Human Rights Tribunal has more closely followed the Campbell River case. The employee was a single father who had worked for a moving company for a long time. He knew that it was a regular feature of his job that he would work irregular and sometimes lengthy hours, often on short notice. He had made arrangements for his son to be picked up from school or daycare and cared for until he finished work. When he was assigned new work one day that would start after 4 pm, he refused and said he was going to pick and choose the jobs he did, as he needed to be home with his son. The tribunal did not find a serious interference with a substantial parental obligation, and there was nothing that distinguished the complainant s circumstances from other parents who must juggle work and parental obligations. 15 A broader approach? Meanwhile, other adjudicators are struggling with family status discrimination claims and the confused legal framework in different jurisdictions. In one case, an arbitrator in Ontario was dealing with four grievances arising from a change to the hours of work initiated by the employer and agreed to by the union based on the preference of a vast majority of its members. The change was to a 4 x 10 hour shift schedule. That caused problems for four fathers trying to meet their child care obligations. For three of the four, the new shift schedule meant they had to adjust the child care schedule they had established which put an increased burden on their wives. It also affected their ability to attend their children s extra curricular activities. 14 Health Sciences Assoc. v. Campbell River and North Island Transition Society, 2004 BCCA Falardeau v. Ferguson Moving (1990) Ltd., 2009 BCHRT 272 BC Labour and Employment Update Page 7

21 The fourth grievor had worked out a joint custody arrangement with his former wife where the children lived with each parent for alternate weeks. The 10 hour shifts made that impossible and the grievor could only have the children living with him on weekends. The arbitrator ruled against the first three grievors, finding that not every conflict between a work obligation and a parental obligation should give rise to a finding of discrimination. The fourth grievor s case was more complex, and the arbitrator ruled: [I]t is reasonable to conclude that a change in a workplace rule which forces parents to alter a carefully constructed custody agreement to their detriment in order to accommodate that workplace rule may be found to be discriminatory. 16 Anti-nepotism policy A college disqualified a candidate for a Dean s position because the candidate was married to an instructor who worked in a department under the Dean s authority. That was consistent with the college s conflict of interest policy which prohibited the hiring of anyone who would be in a position of supervising a family member. The arbitrator held that an anti-nepotism policy that does not accommodate human rights does not reflect the required balancing of interests. 17 The net effect is that a family member should not be automatically disqualified, the family relationship may be considered in making a hiring decision, and the employer will have to consider if accommodation of the family relationship is possible without undue hardship. Duty to accommodate The duty to accommodate news for employers is more good than bad, and that is largely because of the Hydro-Québec 18 decision of the Supreme Court of Canada in The basic idea of work for pay as being the essence of the employment contract, and the need to understand the duty to accommodate and undue hardship in that context, is gaining traction. The commute to work How an employee gets to work is normally none of the employer s business, or responsibility. But when an employee becomes disabled, or when an employer changes work conditions for an employee who is already disabled, the employer may have a duty to accommodate. 16 Power Stream Inc., [2009] O.L.A.A. No. 447 (QL) (Jesin) 17 Douglas College, [2009] B.C.C.A.A.A. No. 152 (Lanyon) 18 Hydro-Québec, 2008 SCC 43 BC Labour and Employment Update Page 8

22 The latter situation arose for Telus. The employee suffered soft tissue injuries to her neck and back from a motor vehicle accident. Her walk to work at the downtown office helped alleviate the pain. But when Telus moved her team to Burnaby, she had to take public transit which aggravated her condition and her doctor recommended that she have Wednesdays off. Telus paid her every Wednesday as a sick day for about two years until a company nurse decided there was insufficient medical support for the absences and that the employee could manage the pain with exercise. The employee then took Wednesdays off as unpaid vacation days. The arbitrator ruled that the employee should be paid for the Wednesdays off. Her medical condition had not changed, the Wednesdays off was a reasonable accommodation, and there was no evidence of undue hardship on the employer. 19 (Note that Telus never argued that paying her for the days off was an undue hardship.) What other types of work need to be considered? An employee needed dayshifts so that he could be at home at night to help care for and assist his wife who had become legally blind. The employer acknowledged the need to accommodate the employee when it introduced a shift rotation which required the employees to share night shifts, but the Alberta Human Rights Tribunal ruled that Canada Safeway failed in their duty to accommodate. Safeway s solution was to make the employee a cashier, but that was a lesser job at lesser pay. That solution was the most convenient to Safeway but the tribunal ruled that such an offer should have been a last resort. The employer should have first assessed the hardship of other options, in particular part time work in different departments at the same store, or even at other stores. 20 The clear lesson from this case is that an employer should exhaust all possibilities of maintaining the employee s status and level of compensation before settling on something less. Religious observance The conflicts with an employee s right to be absent from work for religious observance raises a similar issue. Previous cases have dealt with the issue by allowing the employer to re-schedule work so that the employee has the opportunity to make up for lost pay on religious holidays. But what happens when re-scheduling is not possible? That was the situation for a supply teacher with the Toronto District School Board. He wanted three paid days off to observe Passover, since there was no way the employer could adjust his schedule to make up for the lost days. The arbitrator held that the employer s policy of not paying for such days 19 Telus Communications Inc., [2008] C.L.A.D. No. 102 (QL) (Nordlinger) 20 Keith Rawleigh v. Canada Safeway Limited, Alta. Human Rights Panel, Sept. 29, 2009 (Chomey) BC Labour and Employment Update Page 9

23 was prima facie discriminatory since some employees would have to lose pay for days off that are not paid holidays in the school calendar. The arbitrator turned to the Hydro-Québec case and compared the teacher s situation with that of a disabled employee who is not able to work full hours. The disabled employee is not entitled to be paid for the hours not worked. The arbitrator decided that a person taking days off for religious observance should be treated the same and stated: Accommodation is not the payment of wages for no work in exchange, but rather the facilitation of the opportunity to work all of the time available for the performance of the work. There is nothing further that the employer could do to facilitate the making up of the three days of lost work and as a result, the obligation to accommodate to the point of undue hardship has been met. 21 Useful and productive work In a similar vein, another case has confirmed that the duty to accommodate does not require an employer to create make-work projects or extra cost positions. In a case involving an injured employee who was offered and attempted light duties, but was not able to do light duties for even half a shift, the arbitrator found the duty to accommodate had been met. The employer had exhaustively considered all job possibilities but found that the grievor lacked the qualifications or the physical ability to do any of them. The grievor wanted to answer the phone and do filing, but those tasks were part of the regular duties of the individual employees and shifting those duties to the grievor would not be useful or productive. The arbitrator said: Hydro-Québec indicates that an accommodation should be made if circumstances permitted various tasks to be reassembled and given to a disabled worker, without undue hardship to the employer, which would allow the employee to perform a useful and productive job. On the other hand the affirmation in Hydro-Québec, that the duty to accommodate must be compatible with the rule that employees must do their work has to mean that the threshold of undue hardship is crossed if the employer is required to maintain a handicapped employee in a position that is not of itself a useful and productive job in the context of the employer s operation, as summarized by arbitrator Kennedy in Re Hamilton Civic Hospitals Toronto District School Board, [2008] O.L.A.A. No. 692 (QL) (Whitaker) 22 Gables Lodge Ltd. (2009), 187 L.A.C. (4 th ) 286 (Kydd) BC Labour and Employment Update Page 10

24 Pay for what you get To emphasize a related point, an arbitrator made a ruling against an accommodated employee. The employee had suffered a workplace injury. Part of the accommodation was to reduce her to part time hours with the remainder covered by workers compensation benefits. The part time pension plan was inferior to the full-time plan and she claimed the right to continue to contribute to and participate in the full-time plan. The collective agreement provided for separate plans based on the number of hours worked and the adjudicator ruled that it was not discriminatory to require her to join the plan that related to her new work schedule. 23 Actual or potential harm? The Ontario Divisional Court recently held that an arbitrator set the undue hardship threshold too high by requiring the employer to show actual harm that would arise from the employee s desired accommodation. 24 The employee was a paramedic. A problem with his eyesight prevented him from maintaining the required driver s licence. He then asked to be a non-driving, or attend only, paramedic, pointing to the fact that volunteer attend only paramedics were allowed. The arbitrator agreed but the court overturned his decision. The court noted there was uncontradicted evidence of real health and safety concerns if all paramedics could not drive, and that the use of attend only volunteers was in areas where the alternative was to have no ambulance service at all. The employer s goal was to provide the highest level of safety for patients served by full time paramedics in most areas of the province. The court ruled that the arbitrator had usurped the employer s authority to establish such a goal by requiring accommodation that would compromise safety. While the employer was required to unequivocally establish the existence of concerns relating to safety, it was not required to show actual harm. Safety and return to work A disabled employee cannot insist on returning to his old job when there is a safety risk. A corrections officer suffered post traumatic stress disorder from incidents with violent prisoners. His condition made it impossible to carry out his regular duties without risk to himself and his fellow officers. The employee refused transfers to other locations where he would not have contact with inmates, and he was not cooperative in the employer s attempts to find other jobs in the public service. 23 Atlantic Health Sciences Corp., [2009] N.B.L.A.A. No. 3 (Bruce) 24 Ontario Public Service Union v. Simcoe County, [2009] O.J. No (QL) BC Labour and Employment Update Page 11

25 The adjudicator held that the duty to accommodate is not unlimited and is not unilateral. The medical evidence did not support the subjective assertions of the employee that he was no longer symptomatic and was able to return to his old job. Any further accommodation by the employer would amount to undue hardship. 25 On the other hand, when an employee has objectively established her ability to return to work, the employer cannot substitute its judgment for hers and refuse to allow her to return. That was the situation with a pregnant nurse who was cleared to return with a restriction on heavy lifting. The employer did not think it was wise for her to return and initially refused to have her back. Eventually, she was allowed to return with restrictions on lifting. The arbitration board agreed with the union that the nurse should have been accommodated when she first made the request. 26 No expectation of return to work The doctrines of frustration and termination for innocent absenteeism still apply. When there has been a lengthy absence and there is no prospect of a return to work with the employer in the foreseeable future, the duty to accommodate has been met. There is no obligation on the employer to maintain the employment relationship in such circumstances. 27 Union role in accommodation The employee s disability required her to work a set schedule of 11 days out of 20 each month. The employer unilaterally changed her status from full time to part time and modified some of the elements of the position to accommodate the employee s disability. This was done without consulting the union. The arbitrator ruled that the employer should have invited the union s participation in the accommodation, even though the union would not hold a veto on the employer s decision. 28 Collective Agreement Arbitration All of the following cases flow from collective agreement disputes involving unionized employers. But they also contain many lessons for non-union employers as well. 25 Sioui, v. Deputy Head (Correctional Service of Canada), 2009 CSRB 44 (Pineau) 26 Prairie North Health Region (c.o.b. Battleford Union Hospital), [2009] S.L.A.A. No. 5 (Hood, Cymbalisty, Longpre) 27 London Transit Commission, [2009] O. L. A.A. No. 527 (Reilly) 28 Saskenergy Inc., [2008] S.L.A.A. No. 10 (Norman) BC Labour and Employment Update Page 12

26 Management Rights Getting satisfactory medical information from an employee is a constant challenge, even when it is an issue of assuring fitness to return to work after illness or injury. An employee at a long term care home had generated reasonable concerns about her mental fitness by sending threatening messages to management and refusing to provide certain types of medical information. The arbitrator ruled that the employer was both obliged and entitled to satisfy itself about the employee s fitness to return to work. 29 Conflict of interest Employers can also use management rights to protect it from conflicts of interests and damage to its reputation. An Ontario public servant working as a Bee Inspector was also President of the Ontario Beekeepers Association. His employer explained what it considered to be an actual conflict of interest and the potential for a reasonable perception of another conflict. The employee was told to choose between his employment and his activities with the Association. An arbitrator determined the employer had the management right to make such a decision and refused to hear the grievance. 30 Damage to reputation Employers also have a legitimate concern about their reputations. That includes private entities with a commercial reputation to protect, and public entities which must be able to maintain the trust and confidence of the public to fulfill their mandates. Two school board cases emphasize the point. In the first, a high school counsellor gave a student money to travel to get an abortion. The teacher knew that only another student would be accompanying the pregnant student. A parent complained. The arbitrator said that counselling on the alternatives was appropriate, but facilitating one option by providing personal funds, and without ensuring the student s safety, was not. Damage to the employer s reputation was noted. 31 In the other case, a school bus driver thought it would be a humorous way to enforce her no eating on the bus rule to give mothballs disguised as mints to a couple of violators. She didn t know that mothballs were noxious, but she did know they were not meant to be eaten. She didn t take any steps to ensure they didn t actually eat the mothballs. No harm was done, but one of the students did put one in his mouth and then spit it out. Another one was given to a younger student, but she threw it out 29 Stirling Heights Long Term Care Centre, [2009] O.L.A.A. No. 110 (Levinson) 30 Ontario (Ministry of Agriculture, Food, and Rural Affairs (2009), 181 L.A.C. (4 th ) 362 (Briggs) 31 School District No. 34 (Abbotsford) (2009), 181 L.A.C. (4 th ) 426 (Burke) BC Labour and Employment Update Page 13