Top 2013 Canadian Employment & Labour Cases

Looking for a bootcamp on important cases from 2013?  Here are a few of my favourite Canadian bloggers and their top 5-10 cases from 2013.  There is some overlap, but also a good range of cases to highlights how law can be much more of an art than a science.

Feel free to comment if you think an important case was overlooked in any of the above lists.

 

Other great top 10 type lists to check out:

 

Happy Reading - and may 2014 treat you all well.

 

 

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Can You Discriminate Against a Volunteer?

The Ontario Human Rights Code and the Accessibility for Ontarians with a Disability set out the rights and obligations regarding employees, but what about volunteers?  A reader of this blog (thanks Angie!) has asked about the application of these laws when recruiting volunteers.  Human rights codes across Canada work largely the same on this issue, but since Angie is from Ontario, I’ll focus on this province.  

Volunteers are not “Employees”

Can You Discriminate Against a Volunteer?First of all, volunteers are not “employees”.  The Ontario Employment Standards Act defines “employee” as a person who performs work or services for an employer “for wages”.  As long as the person is receiving wages, they are not a volunteer and are therefore entitled to minimum wage, paid holidays and all of the other minimum standards set out in the Employment Standards Act

It is possible to reward a volunteer, but that reward must be purely discretionary and not tied to performance.  In other words, you can provide the volunteer with a generous gift basket on your annual volunteer recognition day, without the risk of creating an employment relationship.  You cannot, however, pay the volunteer $10 for each new donor to your organization that he or she signs up on the street corner.  That’s a commission and tied to performance, indicating an employment relationship. 

But “Employment” Does Include Volunteers under the Human Rights Code

While the Employment Standards Act clearly does not apply to volunteers, it is likely that the Human Rights Code does.  The Human Rights Code does not specifically refer to volunteers, but it also does not limit “employment” to only paid positions. 

Rather, under the Human Rights Code, employment is interpreted broadly and will generally include volunteers for the purposes of applying the Human Rights Code to the workplace.  See the Ontario Human Rights Commission’s website for general guidance (while the Human Rights Tribunal is not bound by the OHRC, the OHRC remains a persuasive voice in the human rights regime in Ontario).

Volunteer Canada has published a useful guide for organizations that engage volunteers.  The Canadian Code for Volunteer Involvement sets out guidelines for policies and procedures for volunteers, indicating that such policies and procedures should be consistent with human rights legislation (see page 13 of the guide). 

Recruiting Employees/Volunteers

When recruiting employees (which will include volunteers under the Human Rights Code), the law is clear that you cannot discriminate against an individual based on any of the grounds set out in the Human Rights Code:

Employment

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

For example, it is discrimination if you refuse to hire someone because they are disabled, are pregnant, are too old, are members of a lesbian social club, are members of a particular religious organization, etc. 

The Human Rights Code further specifies that the recruitment process itself cannot be discriminatory:

Employment

23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Application for employment

(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Questions at interview

(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

Employment agencies

(4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.

Special Interest Organizations

It is clear an organization cannot discriminate – but can an organization prefer volunteers that reflect the membership or purpose of the organization?  Many volunteers are engaged by special interest organizations, which by definition may exist to promote specific religious beliefs, gender issues, sexual orientation or cultural backgrounds, etc. 

Can organizations recruit to favour and/or exclude volunteers based these otherwise protected grounds? 

To some extent, yes, they can.  The Human Rights Code sets out special rules or exemptions in the area of recruitment for “special interest organizations” as follows:

Special interest organizations

18. The rights under Part I [the general section on Freedom from Discrimination] to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

For example, a woman’s shelter is not discriminating against men if it has a policy to recruit only women volunteers.  A church club for teenagers can require members to adhere to the religious practices of that church.  A Dutch social organization can require board members to have a Dutch background.

This exemption is complicated.  There will be limits to this section, and we most often see the limits determined when you have competing human rights issues.  For example, can a religious organization refuse to recruit a transgendered volunteer?  A full review of competing human rights would require a separate blog post, but suffice it to say that an organization can prefer volunteers that reflect the purpose or mandate of the organization, so long as the organization is not discriminating against the volunteer applying for the position (which I know is easier said than done in many situations).  

Volunteers and AODA

The other piece to the human rights regime in Ontario is the Accessibility for Ontarians with a Disability Act, 2005.  Both the Customer Service Standard and the Integrated Accessibility Standard under the Accessibility for Ontarians with a Disability Act, 2005 specifically require organizations to train both employees and volunteers about the provision of goods and service to persons with a disability and about the accessibility standards set out in the legislation.

The purpose of AODA is to achieve accessibility for Ontarians with a disability.  The standards willbe read broadly and interpreted to achieve the highest standard available under AODA and the Human Rights Code.  Any ambiguity around the application to AODA to a volunteer will likely be read widely to capture volunteers and ensure all individuals engaged at an organization are bound by the AODA standards.

 

Take Aways

The world of volunteers is outside and yet part of the employment context.  It is not always crystalCan You Discriminate Against a Volunteer? clear what role a volunteer has within an organization, but given the quasi-constitutional status of human rights legislation in Canada, employers and organization that engage volunteers would be most prudent to assume the full range of discrimination law applies to their volunteers. 

This includes ensuring your volunteers are held accountable for any discriminatory conduct they engage in while representing the organization.  As always, setting out expectations in a policy for all members of the organization - whether paid or unpaid – will provide clarity around human rights issues.

 

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Bill 168 Assessments: Deadline is Around the Corner

Becoming complaint with the new workplace violence and harassment law (Bill 168) has recently moved to the centre of many organizational radars.  The deadline to comply  is June 15, 2010, so there are about 5 weeks left to take the necessary steps to meet the requirements of the legislation. 

Lots to Do...

Bill 168 passed last December and amends the Ontario Occupational Health and Safety Act.  Employers must have completed a number of steps by June 15, including:

  • update or create policies on workplace violence and harassment;
  • develop a program to implement the policies;
  • conduct an assessment of workplace violence;
  • communicate to and train staff about the the policies and programs;
  • determine protocol around domestic violence that exposes workers to violence in the workplace; and
  • determine protocol regarding the disclosure of information about a person with a history of violent behaviour that may expose a worker to violence.

Yes, there is a lot to do.  Many organizations already have decent policies and programs on workplace violence and harassment and will simply have to tweak existing documents to comply.  Others need to start from scratch.

Workplace Assessments

Virtually everyone, however, will be starting from scratch when it comes to the mandatory assessment of workplace violence.  The amendment requires employers to "assess the risks of workplace violence that may arise from the nature of the workplace, the type of work, or the conditions of work."  The assessment must take into account circumstances that are both common to similar workplaces and specific to your workplace. 

And that's it - there is no other legislative guidance that outlines what the assessment should look like, how comprehensive it should be, in what format it should be, etc.

I have given a number of training sessions to clients on how to conduct workplace assessments.  One of the messages I try to get across is that this is not rocket science.  It's a matter of developing a comprehensive and logical checklist of the risks of violence in your workplace. 

While it may be impossible to eliminate all risks of workplace violence and harassment, this exercise is about identifying risks so that steps can be taken to minimize those risks.

While the legislation only requires the assessment of workplace violence, I believe it is prudent -  and not necessarily extra work - to include the assessment of workplace harassment in the exercise.  Quite often, harassment is a preliminary step to violence and the two concepts cannot always be separated.

In general, employers, along with significant employee participation, will want to review the physical characteristics of your workplace to determine levels of risk, and to review past injury reports, security incident reports, human rights complaints and internal grievances to identify any patterns of behaviour or corners of the organization that may be at a higher risk.

Resources

Very recently, the Ontario Ministry of Labour and the Occupational Health and Safety Council of Ontario released some excellent resources to assist workplaces with becoming compliant:

  • What Employers Need to Know explains the various parts of the amendments, provides detailed resources about domestic violence, outlines how to develop the required policies and programs, and how to conduct the assessment.
  • A Toolbox includes sample policies, an optional employee survey, and a template assessment worksheet to build on and cater to your workplace.

While there are many good consultants and organizations that can assist with conducting the assessment, for many workplaces, the Ministry of Labour's resources will provide an excellent and cost-effective way to conduct the assessment in-house.  Regardless of the route chosen, the HR team will need to dig through the existing (and sometimes very out of date) policies and documents that will inform the assessment, so it is impossible to completely outsource the project. 

Of all of the tasks required by the new amendments, the assessment will likely be the most time-consuming and labour intensive exercise.  Once you have your template up and running, however, future assessments will likely be much less of a burden. 

Furthermore, the assessments should provide a great opportunity for organizations to cross-educate management and employees about where are the potential risks of workplace violence and harassment, and to inform each other about concerns that should be acted on before they escalate into serious situations.  

 

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Employment Law Resources for Employers

Earlier this week, I received an email from the owner of a small company who was frustrated at all of the resources available for employees and the lack of resources for employers.  She pointed out that the various human rights commissions across Canada will often offer services to complainants, and that in general, the system felt biased towards employees.

I agree that once a matter gets to a hearing, our arbitrators and decision makers acknowledge the power imbalance that often exists between an employer and an employee, particularly if the employee is unrepresented.  This is the case throughout the law, and represents more of an attempt to ensure fair outcomes than any intentional bias towards one side.

Having said that, I thought it would be helpful to point out some useful (free) resources that do exist for employers:

(a) Ontario Employment Standards

(b) Federal Employment Law Information

(c)  Health & Safety 

 (d)  Human Rights

  • Although the Ontario Human Rights Commission (OHRC) no longer has carriage of files at the Human Rights Tribunal, the OHRC has produced a number of helpful publications over the years, including guides about hiring employees, developing compliant workplace policies, drug testing, employment-related medical information, and an extensive online publication called "Human Rights at Work".  These guidelines are not binding on the Tribunal, in court or at an arbitration, but are useful minimum standards to use as a defence should an employee claim discrimination in the workplace.
  • The Human Rights Tribunal has a number of online publications, including a Respondent's Guide (the one most used by employers) and a Guide to Preparing for a Hearing.
  • Employees can access the Human Rights Legal Support Centre, the new organization established last year when the Human Rights Tribunal started accepting cases directly from complainants, rather than having to go through the OHRC as a gatekeeper.  The Centre is for "individuals throughout Ontario who believe they have experienced discrimination", not for employers. 
  • The Ontario Human Rights Code is online.
  • Practical Tip:  The Tribunal is now no different than any other legal proceeding, and given the assistance complainants (i.e. employees) can get through the Human Rights Legal Support Centre, I would caution an employer from trying to go it alone at the tribunal.  Whether you retain a lawyer to help with just the response at the beginning, or with the entire process, including the legal arguments at the hearing, there is no way to avoid the fact that this is an increasingly complicated a legal forum.

The above list is just a start and I know there are many, many more resources out there.  If you have a recommendation for a good employer advocacy organization, let me know and I'd be happy to post your link here as a resource to employers. 

Resources readers have since suggested to me:

  • The Office of the Employer Adviser (OEA) is an independent agency of the Ministry of Labour that helps Ontario employers manage their workplace safety and insurance costs.  They provide advice to any size employer, but represent primarily employers who employ fewer than 100 employees.
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