The Evolving Law On Overlapping Employment Regulatory Regimes

Transcription

1 The Evolving Law On Overlapping Employment Regulatory Regimes Navigating the Divide Between Labour Standards, Human Rights, Workers Compensation, Labour Relations, and Occupational Health and Safety, and the Common Law

2 Introduction Employers must know and apply several different legal regimes (areas of law) Each legal regime has hundreds of rules and requirements Legal regimes overlap and conflict at times, ie. more than one (or two) legal regimes can apply to a workplace problem Failure to manage overlap can result in increased liability, inefficiencies, multiple-litigation, and unnecessary costs Tool to manage overlap purposive, principled approach described below First determine which legal regimes may apply to a workplace dispute by assessing if the issues fall within one or more of the purposes of the legal regimes Manage the overlap by using the conflict rules and options within the applicable legal regimes

3 Sources of Law Common law Statute law

4 Common Law Judge-made law Stare decisis Supreme Court of Canada Saskatchewan Court of Appeal Saskatchewan Court of Queen s Bench Saskatchewan Provincial Court Extra-jurisdictional Courts*

5 Common Law Law of Master/Servant Non-union employment situations Lawsuit brought in court Wrongful dismissal Constructive wrongful dismissal Reasonable notice or pay in lieu (severance) PURPOSE OF COMMON LAW freedom of contract and enforcement of contract

6 Statute Law Regulatory and Enabling Statutes Supplemented by judicial interpretation

7 Labour Standards The Labour Standards Act Freedom of contract works best when parties are equal in bargaining strength Employers are usually the stronger of the bargaining partners Minimum standards needed to prevent employer from abusing the employment contract

8 Labour Standards Labour Standards Branch Deals with issues such as: Hours of work Overtime Wages Vacation Maternity and Parental leave Minimum pay in lieu of notice PURPOSE OF LABOUR STANDARDS Minimum employment standards to prevent employer abuse of power

9 Labour Relations The Trade Union Act Instead of compensating for the unequal bargaining relationship, this regime seeks to equalize the bargaining positions The Construction Industry Labour Relations Act, 1992 Federally-governed workplaces Saskatchewan Labour Relations Board Duty to Collectively Bargain in Good Faith Disputes involving unionized employees, collective bargaining agreements, etc. Disputes may be between employee and employer, union and employer, or employee and union

10 Labour Relations Collective Agreement Issues in a unionized workplace adjudicated by an arbitrator PURPOSE OF LABOUR RELATIONS: strengthening bargaining position of employees by requiring collective bargaining

11 Occupational Health and Safety The Occupational Health and Safety Act, 1993 Occupational Health and Safety Branch Duty to provide healthy and safe workplace OHS Workplace Committees Harassment Complaints Refusals of unsafe work, hazardous substances, safe work environments, and workplace accidents PURPOSE OF OH&S: require the employer to maintain a healthy and safe workplace

12 Human Rights The Saskatchewan Human Rights Code Saskatchewan Human Rights Commission Investigates complaints of discrimination Saskatchewan Human Rights Tribunal Hears and decides discrimination inquiries

13 Human Rights (cont.) Protected Categories Age Ancestry Family status Marital status Mental disability Receipt of public assistance Religion Sexual harassment Sex/pregnancy Sex/other Sexual orientation PURPOSE OF HUMAN RIGHTS: prevent discrimination and encourage barrier free workplace

14 Workers Compensation The Workers Compensation Act 1979 Bars civil actions (including grievances) against employers for workplace injuries Workers Compensation Board In cases of injury or death arising out of, and in the course of, employment, provides financial protection, medical benefits and rehabilitation services to injured workers and their dependents Collects assessment premiums from employers and makes appropriate payments from a common fund PURPOSE OF WCA: compulsory no-fault insurance system as the exclusive compensation system for workplace injuries

15 Areas of Overlap & Conflict Labour Standards & Common law Labour Standards & Labour Relations Human Rights & Labour Relations Human Rights & Occupational Health and Safety Workers Compensation & Personal Injury Suit Workers Compensation & Labour Relations Occupational Health and Safety & Workers Compensation Human Rights & Workers Compensation

16 Why is it Important? Different regimes have different remedies Despite overlap, some areas where a body does not have jurisdiction Sometimes there s an ability to pursue in multiple forums, sometimes not

17 Managing the Overlap Purposive approach tool to help navigate the overlap understand the purposes of each legal regime assess the workplace issue - does it falls within one or more of these purposes? once the applicable legal regimes have been flagged, seek out the rules (including conflict rules and options) within the applicable regimes Your counsel can help

18 Scenario #1 Facts: The two waitresses and bar room employees were told that their services were no longer required and not to come into work anymore. Questions: Do the claimants have any legal recourse? If yes then what recourse? If no, why not?

19 Scenario #1 Result: Following their termination, both of the respondents successfully made a claim under The Labour Standards Act, R.S.S. 1978, c. L-1, as am. (the "Act"), for pay in lieu of notice as required by s. 43 of the Act.

20 Scenario #1 Facts Part II: Subsequent to their pursuit of a remedy under the Act, the respondents commenced an action in this court for wrongful dismissal, claiming breach of their employment contracts in that they were dismissed without notice and without just cause. The applicant seeks to have their claim in this regard struck on the basis of issue estoppel. Question: If the claimants successfully sue under Labour Standards, can they also sue for common law reasonable notice?

21 Scenario #1 Tarr v. Prairie Oasis Ltd. (c.o.b. Kipling Motor Inn), [1996] S.J. No. 74 (Court of Queen s Bench) At paragraph 24: As the claims for damages for wrongful dismissal are not one and the same as the claims for pay in lieu of notice pursuant to section 43 of the Act, the first element of issue estoppel as set forth in Sherwood v. Burston has not been satisfied. I also note that a claim for statutory pay in lieu of notice does not encompass other heads of damage which may be available in an action for damages for wrongful dismissal, such as loss of benefits. - MacIntyre J. in allowing the claimants suit at common law despite the successful Labour Standards complaint

22 Scenario #2 Facts: Club manager was summarily fired about two weeks after hire when it was learned that she was married to a penitentiary inmate who had been convicted of murder. Several of the Club members were corrections and police officers. They feared their safety would be compromised if the complainant overheard casual conversation and transmitted it to her husband. Questions: Which of the bodies mentioned might have jurisdiction to hear the matter? Does the matter violate any Acts or common law tenets? If so, which tenets or provisions does the above scenario violate?

23 Scenario #2 Saskatchewan (Human Rights Commission) v. Prince Albert Elks Club Inc., 2002 SKCA 106 (Saskatchewan Court of Appeal) At paragraph 54: [The complainant] was a victim of prejudice and unfair discrimination and the principle at stake is an important one. The Elks Club fired her not because of who she is or her abilities but because of the person to whom she is married. Marital status can refer to being or not being married or how you live your life together with your life partner; or it can be to whom you are married, which is the issue raised in this case. - Vancise J.A. in upholding a finding of discrimination by the Human Rights Inquiry

24 Scenario #3 Facts: Teacher with 20 years experience was assigned to a modular classroom. She began to experience persistent health problems, which included fatigue, headaches, nosebleeds, and severe cough. Her family doctor had difficulty providing a specific diagnosis. Teacher suspected that the cause of her health problems arose from her modular classroom, principally because her health improved when she was away from the classroom. She requested that the School Board accommodate her by moving her to another building or classroom. School Board told her that this was not possible and did not agree that the classroom contained a contaminant. She was found a position for Mrs. Lewis in another school.

25 Scenario #3 Questions: Which areas of the law might apply and on what grounds? What steps might you suggest be taken in this matter?

26 Scenario #3 Lewis v. Regina School Division No. 4, 2003 SKQB 344 (Queen s Bench) In response to charge of unsafe work environment (at paragraph 39): [Occupational Health and Safety] Regulation 308 commences with the words "Where a chemical substance or biological substance is present at a place of employment...". There was no evidence that any chemical or biological substance was present in the modular classroom in which Mrs. Lewis taught. Thus, there was no obligation on the [School] Board, as set out in Regulation 308(b), to assign Mrs. Lewis to less hazardous alternate work if it is available. Matheson J.

27 Scenario #3 Lewis v. Regina School Division No. 4, 2003 SKQB 344 (Queen s Bench) In response to allegations of discriminatory behavior: To be a prohibited discriminatory action, as set out in s. 27, not only must the action have adversely affected the worker but also have been taken because the worker has done one or more of the listed acts. If it is established that the employer engaged in discriminatory action against a worker, it must also have been established that the reason therefore was because the worker sought to enforce the Act or the Regulations or refused to work. Under such circumstances, the employer could not have taken the discriminatory action unknowingly, or innocently. Matheson J. in determining that the employer did not discriminate per the Occupational Health and Safety Act,1993

28 Bonus Round Fact Scenario: An employee alleged that she had been the victim of harassment in the workplace and sexual harassment by one of her supervisors. She sued both her employers and the alleged harasser in court. In the lawsuit she sought both compensatory and exemplary remedies, based on a violation of the Charter of Human Rights and Freedoms. The employee subsequently obtained compensation under Workers Compensation legislation for having suffered an employment injury as a result of the same events.

29 Bonus Round Questions A. What issues of overlap apply? B. What advice would you give in such circumstances? C. What if the employee worked in a unionized workplace?

30 Bonus Round Answers Béliveau St-Jacques v. Fédération des employées et employés de services publics Inc. [1996] 2 S.C.R. 345 A. Workers Compensation legislation acts as a bar to civil actions in courts, including actions for civil liability and exemplary damages under the Charter. The Charter does not create a parallel compensation system and cannot authorize double compensation for a given fact situation. B. The court stated at paragraph 136: [T]he arbitrator could not have awarded damages for the prejudice suffered as a result of the employment injury. The exclusion of a civil liability action also applies to the grievance arbitrator. However, the court added: [ ] it is not inconceivable that an arbitrator dealing with such a grievance in these circumstances could have ordered other remedial measures, such as reinstatement or reassignment, if the collective agreement so allowed.

31 Advanced Bonus Answers Facts: Female support staff at educational institution initiated identical human rights complaints alleging that the employer was not fulfilling a promise in the collective agreement to negotiate a pay equity scheme. The human rights complaints sought equal pay for work of equal value. The employees union had also filed an unfair labour practice application with the board and grievance. The union and the employer settled the grievance, but the employees refused to withdraw their human rights complaints

32 Possible Forums i. The Labour Relations Board (based on an unfair labour practice complaint under the Trade Union Act)? ii. iii. iv. An arbitrator (based on a grievance under the collective agreement)? The Saskatchewan Human Rights Commission (based on a gender discrimination complaint)? The Director of Labour Standards? v. Any combination of the above?

33 Advanced Bonus University of Saskatchewan v. Dumbovic, 2007 SKQB 182 The dispute was not ultimately resolved until four forums weighed in: LRB, arbitration, human rights, and the court. The LRB decided not to hear the dispute but to defer the dispute to grievance arbitration because the dispute related to the interpretation of the collective agreement. Arbitrator. This matter proceeded by way of arbitration which ended up in an ongoing negotiation process between the union and employer. The pay equity issues were resolved between the union and both universities at the bargaining table. (The individual complainants, however, argued in court afterward that the settlement did not meet their satisfaction.) Sask. Human Rights Commission and Tribunal: The Sask. Human Rights Tribunal attempted to ignore the employer/union settlement and ordered an Inquiry to determine if the employer was discriminating against the complaints by not paying them equal pay for work of equal value

34 Advanced Bonus Continued Court: The employer applied to the court to quash the Human Rights Tribunal proceedings. The Court ruled that: - There is no jurisdiction under The Saskatchewan Human Rights Code for the Tribunal to formulate the legal and regulatory structures necessary to bring about a regime of equal pay for work of equal value in Saskatchewan workplaces. Thus, no jurisdiction to adjudicate complaints seeking that remedy. -The Legislature had provided the Director of Labour Standards with the authority to investigate equal pay complaints, and that nothing in the legislation indicated an intention on the part of the legislature to have both the Director of Labour Standards and the Chief Commissioner of the Saskatchewan Human Rights Commission to share concurrent responsibility for complaints of equal pay. - The Court also suggested that it may be an abuse of process for a small minority in a bargaining unit to attempt to relitigate a matter that has been settled by the collective bargaining agent and the employer. Note: For federally-regulated workplaces, section 11 of the Canadian Human Rights Code confers jurisdiction upon the Canadian Human Rights Commission to determine complaints about unequal pay for work of equal value (There is no equivalent legislative provision in Saskatchewan).

35 Suggestions and Tips Keep in mind the purposes of each legal regime Consider the different responses available for each regime, including the different conflict of laws options built into each regime Consult a lawyer (ideally before there is a problem)

36 David M. A. Stack is the Chair of the McKercher LLP Labour & Employment Law Group and practices in the areas of Civil Litigation, Administrative Law, Employment/Labour Law, and Corporate/Commercial Law. He has experience in all levels of court in Saskatchewan and has appeared in the Supreme Court of Canada. He has authored a number of articles, is a member of the National Human Resources Committee of the Kidney Foundation of Canada and is on the Board of Directors of the St. Thomas More Lawyers Guild of Saskatoon Inc. and the Professional and Community Advisory Board of Community Legal Assistance for Saskatoon Inner City Inc. (CLASSIC). Shane R. Parker practices in civil and criminal litigation, with emphasis on employment, personal injury, real estate and insurance matters. He has been appointed to the Canada Pension Plan / Old Age Security Review Tribunal in the region of Saskatoon, is currently the Vice-President of St. Thomas More Lawyers Guild Inc., and an active member of the Kinsmen Club of Saskatoon. Shane was a recent panelist at the Canadian Bar Association (Saskatchewan Branch) Mid- Winter meeting, and is a past Director of the Saskatoon Chapter of Saskatchewan Young Professionals and Entrepreneurs (SYPE). 374 Third Avenue South Saskatoon, SK S7K 1M5