DID YOU KNOW?

1. An employer may be limited in its ability to dismiss an employee for behaviour which has been overlooked in the past.

Where an employer has condoned employee behaviour, that behaviour cannot then be cited as just cause for dismissal. Condonation occurs where the employer takes no action for a lengthy period of time after becoming aware of the behaviour in question, or has not responded to similar actions in the past. The theory behind condonation is that the employee has developed a reasonable expectation that the behaviour in question would not be treated as cause for discipline or dismissal. If behaviour has been condoned in the past, and the employer intends to treat such conduct as amounting to just cause in the future, then employees must be clearly and explicitly advised as to the change in policy.

2. Drug and/or alcohol testing programs introduced in the work place may violate employee rights under the Ontario Human Rights Act.

It is now accepted that a properly designed and implemented drug/alcohol testing program may be lawfully introduced in certain work places. However, there are now several cases before Canadian Courts and Human Rights Tribunals where key aspects of specific employer testing plans have been struck down as violating important human rights. It is anticipated that this will remain a hotly contested legal issue until these cases reach the highest level in the court system. In the meantime, any attempt by management to introduce a drug and alcohol testing program in your work place should be carefully monitored and assessed against the existing Canadian cases dealing with this issue. Union representatives should be extremely cautious before endorsing or agreeing to any aspect of such a plan.

3. "Systemic discrimination" is different from "direct discrimination ", and is harder to identify.

Some types of discrimination are direct, where a person consciously acts on a distinction between certain groups. For example, a rule that persons who are afflicted with the disease of alcoholism may not work on a line crew would constitute direct discrimination. On the other hand, sometimes policies and practices which appear neutral on the surface actually have the affect of discriminating against certain groups. For example, a rule which requires all members of a line crew to hold a valid operator's licence, because they may be called upon to operate a utility vehicle, would have the effect of barring all persons whose licences have been suspended. This type of situation may amount to systemic discrimination against the employee who is fighting a battle with alcohol. A negotiated accommodation such as the performance of duties which do not require a valid operator's licence may be the solution.

4. Employers may have an obligation to accommodate breast-feeding employees.

5. The OLRB don't deal with complaints of Sexual Harassment in the Work Place.

An issue has recently arisen as to whether the Ontario Labour Relations Board has jurisdiction to deal with complaints of sexual harassment filed pursuant to the Health and Safety provisions of the Occupational Health and Safety Act. Historically, complaints of sexual harassment were taken to the Ontario Human Rights Commission. The delays associated with the Human Rights process, and the limited relief available from the Human Rights Commission, led employees to look to the provisions of the Occupational Health and Safety Act. In the Lundhurst Hospital case, the Ontario Labour Relations Board appeared to indicate that it had the jurisdiction to deal with such complaints. However, in two subsequent decisions, the Board has strongly indicated that the Board's power to deal with such complaints is purely discretionary, and in both instances the Board exercised its discretion by declining to hear the complaints. The Board has stated that such matters are better dealt with by the Human Rights Commission pursuant to the provisions of the Human Rights Code.

6. Unions too are subject to the human rights duty to accommodate.

There has recently been a great deal of discussion about the employer's duty to accommodate disabled employees and others who may invoke the protection of human rights legislation. An employer is required to accommodate such employees up to the point of "undue hardship". Undue hardship has been defined as excessive disruption of or interference with the employer's operation. The word "undue" necessarily implies that accommodating the employee may require the employer to face some inconvenience, expense and disruption to its business. While the standard will vary depending upon the size and complexity of the employer's operation, there is little doubt that the inconvenience, expense and disruption must be substantial in order to constitute undue hardship.

What should not be forgotten is that, in large measure, the union faces the same duty to accommodate. Where the union has negotiated an arrangement with the employer that has a discriminatory impact, it has a joint responsibility with the employer to find a reasonable accommodation for the employee. Even if the union is not a party to a discriminatory work arrangement, it may not hinder the reasonable efforts of the employer to accommodate a disabled employee. Although the employer has the primary responsibility for initiating the process of accommodation, the union must recognize that such accommodation may create conflicts with existing collective agreement provisions. In this regard, the union should always be prepared to put forward alternative measures which meet the duty to accommodate but which are, perhaps, less disruptive to procedures otherwise set out in the collective agreement.

This last point highlights the fact that human rights legislation may require a union to modify the provisions of the collective agreement if doing so is necessary to achieve an accommodation. However, the union will not be required to do so if the accommodation involves a substantial departure from the normal operation of the terms and conditions of employment in the collective agreement. Any significant interference with the rights of others will ordinarily justify the union in refusing to consent to a measure which would have that effect. The ambiguity of terms like" substantial" and "significant", and the increasing sensitivity of employees to human rights issues, dictate that the union must approach accommodation issues in a thoughtful and sensitive manner, and on a case by case basis.

Prepared for Local 636 with the compliments of the labour relations lawyers at Shields & Hunt of Ottawa

...AND DID YOU ALSO KNOW?

• …that while the Ontario Labour Relations Board (OLRB) will consider applications for decertification when it is satisfied that at least forty percent (40%) of the employees in the bargaining unit appear to no longer be represented by a Union - if more than fifty percent (50%) of the ballots cast in the secret vote, the OLRB will declare that the Union no longer represents the employees in the bargaining unit or;
• …that the majority of Unions in Ontario belong to the Ontario Federation of Labour and the Canadian Labour Congress whose constitutions bar them from representing bargaining units who have decertified for at least one year or;
• …that even if another Union agrees to represent you (and is successful in gaining the necessary support to be certified), things may not stay the same in your workplace since there is no 'successor status' for this (new) Union guaranteed by law or;
• …that the terms and conditions defined by the collective agreement may be altered amended or terminated if employees support the campaign to end the Union's representation of a bargaining unit or;
• …that the rights and obligations afforded by the collective agreement are no longer enforceable once the Union is decertified or;
• …that any grievances which may remain outstanding at the time of decertification are abandoned, unless the employer voluntarily agrees to address them or;
• …that without the protection of the collective agreement, an employer can rely on the minimum standards provided by such legislation as the Employment Standards Act (ESA), the Labour Relations Act (LRA) or the Occupational Health & Safety Act (to name but a few), to determine your working conditions or;
• …that premium payment for overtime under the ESA is after forty -four (44) hours in any week - and paid at a rate of time and half (1 ?x's) the employee's regular hourly rate or;
• …that in determining an employees entitlement to overtime, an agreement may be made with the employer to work up to sixty (60) hours per week and average the employee's hours over a period of not more than four (4) weeks (or longer if approved by the Ministry of Labour) or;
• …that under the ESA, a lunch break is not provided until an employee has completed at least five (5) hours of work or;
• …that coffee breaks and wash up time are negotiated benefits - not legislated rights (but may be taken in lieu of a lunch break) or;
• …that under the ESA, there are only eight (8) days recognized as 'Public Holidays' but you must satisfy certain qualifiers to be paid or;
• …that under the ESA, an employer is required to provide employees with vacation pay (at a rate of 4% of their annual earnings) - but not vacation with pay and; the employer can determine when an employee can take the vacation to which he or she may be entitled or;
• …that there are no seniority rights without a collective agreement or;
• …that there are no sick leave payments required without a collective agreement or;
• …that if the collective agreement is no longer in full force and effect - there is no job security for employees in the event that work currently performed by members of the bargaining unit is awarded to outside contractors or;
• …that those workers in Ontario who are represented by a Union enjoy a higher quality of life than those who are not organized.