OMHRA Spring Conference 2010

1. OMHRA Spring Conference 2010 Michael Kennedy and Margaret Szilassy

2. Human Rights: Disability Accommodation and the New Tribunal

3. Defining Disability • City of Montreal: result of physical limitation, ailment, social construct or perception thereof • But not temporary illnesses experienced by everyone • Anderson: bronchitis not a disability • Moulton: respiratory infection not a disability

4. Information Required to Trigger Duty to Accommodate Low threshold: whether the respondents knew or ought to have known that the employee has disability-related needs that require accommodation No absolute rule requiring specific diagnosis or nature of disability

5. Role of the Third Party Benefits Administrator • Employers will be held responsible for actions of third party benefits administrators • Third party sending mixed signals: Williams • Legitimate dispute over quality of medical evidence v. harassment: Scarlett

6. Accommodation Process • High standard placed on employers • Proactive duty to inquire: e.g., Wall, Simpson • Oak Bay test: all relevant information about current medical condition, prognosis, ability to perform job duties, capabilities for alternate work • Employer’s onus to prove options considered, steps taken

7. Reasonable v. Perfect or Preferred Accommodation • Not perfect but reasonable: Alexander • Considered the fact employer accommodating others: Saxon • Allegations of menial work or work beyond restrictions critically analyzed: Leckie, Alexander, Akram

8. Undue Hardship • Applying Hydro-Québec: the test is not impossibility • Grzesiak: Is the proper operation of the business hampered excessively? • More than impressionistic evidence required

9. ESA UPDATE

10. Case Law Update • Service Calculation • Frustration of Contract • William Osler and ONA (Shime) • Tembec v. USW IWA (Div. Ct.)

11. Case Law Update • Remedies and Limitations • ESA Limitation Period Applied by Arbitrator • Compass Group Canada (Beaver) Ltd. and UFCW (Brent) • ESA Limitation Not Applied by Courts • Evangelista v. Number 7 Sales Ltd. (Ont. C.A.) • Matiowski v. Lake of the Woods Business Incentive Corp. (Ont. S.C.)

12. Bill 168 Preventing Workplace Violence:

13. Domestic Violence • 32.0.4If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

14. Employer Options (absent disclosure) Ensure domestic violence is addressed in Workplace Violence policy (or separate policy) Ensure it is clear to all employees through policy/procedures who the appropriate contact person is for domestic violence concerns (Dupont Inquest)

15. Employer Options (absent disclosure) Training for employees: e.g., how to recognize the signs of domestic violence; how to respond to an incident

16. Employer Options (absent disclosure) Provide information on community resources available in public locations (see links on TF) Ensure employees are aware that EAP is available for situations involving domestic violence Inform employees they must report any violent behaviour Domestic violence key contact or union/mgt team

17. Employer Options (with disclosure) • Gather facts, investigate, assess threat, seek police assistance • Provide victim with information re EAP, community resources and suggest they consider seeking medical attention • Leave of absence for victim

18. Employer Options (with disclosure) • Develop workplace safety plan with victim, which could include one or more: • Panic button • Cell phone with direct dial 911 • Allow flexible hours to make workday less predictable • Notifying security and reception re. how to proceed if abuser attends at workplace (code words?)

19. Employer Options (with disclosure) • Workplace safety plan continued: • Temporarily relocate victim within workplace • Notify co-workers to advise management if they are contacted by abuser • Provide escort to car or public transportation • Provide parking spot close to entrance • Advise save threatening voicemail or emails received at work

20. Investigation Reports Does an employer have to share a harassment investigation report or workplace violence investigation report with the joint health and safety?

21. Investigation Reports s. 25(2)(l) …an employer shall…provide to the committee or to a health and safety representative the results of a report respecting occupational health and safety that is in the employer’s possession and, if that report is in writing, a copy of the portions of the report that concern occupational health and safety;

22. Investigation Reports s. 25(2)(m) …an employer shall…advise workers of the results of a report referred to in clause (l) and, if the report is in writing, make available to them on request copies of the portions of the report that concern occupational health and safety.

23. Bill 168 Disclosing People with a Violent History • Provide information to workers about a person with a history of violent behaviour if: (a) The worker can be expected to encounter that person in the course of his or her work; and (b) The risk of workplace violence is likely to expose the worker to physical injury.

24. Bill 168 Disclosing People with a Violent History • Only the amount of information reasonably necessary to protect the worker • “person” – other workers, customers, patients, etc.

25. Bill 168 Disclosing People with a Violent History • Proactive or Reactive Assessment of Persons? • Information that can or cannot be used? • Ontario Student Records • Medical Records • Criminal/Police Records • Youth Criminal Justice Actrecords

26. Bill 168 Disclosing People with a Violent History • Policy with criteria of when person to be designated as having a history of violence • Don’t let just anyone make the call – create a threat assessment team

27. Bill 168 – Risk Assessment • What is it? • Only for workplace violence, NOT workplace harassment

28. Bill 168 – Risk Assessment • Assess the risk of workplace violence that may arise from: • The nature of the workplace • The type of work • The conditions of work

29. Bill 168 Risk Assessment • Must take into account common risks at other similar workplaces • Share results with JHSC or health and safety representative • Reassess as necessary for the protection of the workers

30. Bill 168 Risk Assessment • What does this mean to the employer? • Employee surveys / focus groups • Review past incidents from security/HR • Physical workplace inspections

31. Case Law Update

32. Plourde v. Wal-Mart SCC • Turned on technical interpretation of QuebecLabour Code • No interpretation of Health Services

33. Hendrickson Springs • Issue about compensation in lieu of reinstatement

34. Fullowka v. Pinkerton’s SCC • Duty of care owed by NWT government and security firm but no liability because they met standard of care • National and local unions separate legal entities • No vicarious liability on part of national union

35. National Automobile et al v. Johnson ControlsOCA • Temporary lay-off provisions of ESA • Divisional Court upheld arbitrator decision that not necessary to comply with s. 56(2)(b) in order to rely on s. 56(2)(c) • Upheld by OCA

36. Fulawka v. BNS ONSC • Class action for overtime pay allegedly owed to certain employees of BNS certified • Distinguishes Fresco

37. OLG v. OPSEU • Arbitration for using “N” word • 10-month suspension

38. Innisfill v. IPFFA • Judicial Review of Arbitrator Shime • Two hatters issue

39. Orangeville v. OPFFA • Two matter case • Grievance denied

40. Independent Electricity Market Operator v. CUSW OLRB • Application for declaration of non-construction employer pursuant to sections 126 and 127 of LRA • Arbitrator: to make such a declaration would infringe freedom of association rights as collective agreements/bargaining rights would be terminated • Declaration infringes Charter and sections inoperative in this case

41. PSAC and Canadian Union of Labour Employees (Albertyn) • To accommodate religious leave requests, employer should ask: • Is employee sincere believer in a particular religion? • Is there a nexus between the religious occasion the employee requests to observe and the religion concerned? • If the nexus is not obvious, has the employee’s explanation of the nexus between the occasion and his/her sincere religious belief established the nexus?

42. Legislative Update

43. FEDERAL • Employment Insurance Act Regulation amendment • New electronic ROE process, March 2009 • “old school”  paper ROEs only • issued to employee within 5 days of interruption of earnings • still applies when using / submitting paper ROEs • Amendments permit ROEs to be issued electronically

44. FEDERAL • Web ROE (Service Canada) • “new rule” (applicable to Web ROEs only): • Issue it within 5 days of the end of the pay period during which the interruption of earnings occurred • Whether pay period is weekly, biweekly, semi-monthly, monthly etc. • Can give employers more time (up to 15 days of interruption) • May give your client more than what they bargained for / agreed to

45. ONTARIO – BUDGET – “OPEN ONTARIO” • 2-YEAR WAGE FREEZE FOR PUBLIC SECTOR EMPLOYEES • Public Sector Compensation Restraint To Protect Public Services Act, 2010 • Will apply to substantially “all organizations covered by the Public Sector Salary Disclosure Act, except for municipalities” • Will be effective from March 25, 2010 to March 31, 2012 • Freeze wages at the rate they were on March 24, 2010

46. ONTARIO – BUDGET – “OPEN ONTARIO” • FREEZE applies to: • Non-bargaining employees in the Ontario Public Service • Hospitals, boards of health • Schools, colleges, universities • Hydro One, Ontario Power Generation • + “many other provincial agencies, boards and commissions” • BUT excluding employer who receive less than $1 million funding from the province, municipalities or boards

47. ONTARIO – BUDGET – “OPEN ONTARIO” • Compensation plan defined to include all aspects of an employee’s compensation • Base pay • Merit pay • Time off such as vacation • Pension • Health and other benefits

48. ONTARIO – HEALTHCARE • Long-Term Care Homes Act, 2007 • Establishes a new system of governance for long-term care homes • Replaces Nursing Homes Act, Charitable Institutions Act and Homes for the Aged and Rest Homes Act • Parts of the Act come into force on July 1, 2010—the same date as: • Local Health Integration System Integration Act, 2006 • Authorizes Local Health Integration Networks (LHINs) to plan, fund and manage health care services in Ontario • July 1, 2010

49. Criminal Reference Check Changes and Practical Implications on Employers

50. Criminal Record Checks – pre-Dec 2009 • The Canadian Police Information Centre (“CPIC”) would provide information to employers, with consent, about an individual’s convictions under the Criminal Code • NOT pardoned offences or convictions under provincial legislation • This information was provided quickly and allowed Employers to make decisions about hiring an individual with a record before they started work