Employment Standards Act:
An act negotiated on behalf of the state for all workers (addresses power imbalance)
-purpose is to prevent exploitation through floor rights
4 rationales for ESA:
1. Prevents Exploitation:
-ESA
Floor Rights: minimum social and economic rights for all employees to prevent exploitation. They cannot be contracted out of or waived by employee.
-ie. hours of work, when you get over-time, severance etc.
2. Safety:
-workplace standards
3. Dignity
-workers human rights
4. Social Welfare Objectives:
-employment insurance i.e. employers must buy into it
-pension legislation
Scope of The ESA:
Section 3(1): the ESA applies to all employees other than those excluded by regulation
Section 3(2): If a CA contains any provision respecting:
a. Hours of Work or Overtime
b. Statutory Holidays
c. Annual Vacation or Vacation Pay
d. Seniority retention, recall, termination of employment or layoff
then the CA will trump the ESA
Section 3(3): if a CA contains no provision respecting a matter set out above, the ESA provisions will be deemed incorporated into the CA
“Touching Test” (Canadian Woodworks)
-if anything in CA touches on subject matter at hand the ESA is ousted
-very broadly worded so that CA usually prevails
-Counter: s. 3(3)àNO provision in CA that touches on a matter above
Human Rights
Discrimination in employment
13 (1)A person must not
(a)refuse to employ or refuse to continue to employ a person, or
(b)discriminate against a person regarding employment or any term or condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
(2)An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection(1).
(3)Subsection (1) does not apply
(a)as it relates to age, to a bona fide scheme based on seniority, or
(b)as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.
(4)Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
-even though the rule discriminates on a prohibited ground, you let the discriminatory practice stand
MEIORIN/SELI FRAMEWORK
A.Complainant makes a prima facie case of discrimination
-when making a prima facie claim based on “family status” there needs to be a serious interference with a substantial duty of family obligation (Health Sciences)àdifficult to make out a prima facie claim
How to establish a prima facie case (SELI):
Prima Facie Case: lower standard than BOP
1. Does the complainant show an identifiable characteristic with one of the prohibited grounds?
-factualàare you black?
-easy to pass
-establish the discriminated group or person
-possibility of un-enumerated groundsàcategories not closed (Vriend)
2. Show that there is adverse treatment:
-factual inquiry
-is there adverse treatment
-use of comparator group appropriate
3. Is the adverse treatment founded in a prohibited ground?
-is there a connection between the adverse treatment and a shared characteristic or does differential treatment arise from differences in skill, duties or experience of employee?
- bring some evidence to show that alleged discriminatory practice is tied to a prohibited ground
Note: it is not open to parties to contract out of Human Rights Code through collective bargaining (Seli)
B.Onus shifts to Employer; must be proven on BOP that the requirement is a BFOR:
Step 1 – Objective Element –whether the purpose of the general standard is rationally connected to the performance of the job
a. Identify the purpose of the general standard (physical fitness)à(safety and efficiency)
b. Show that general standard (physical fitness) is rationally connected to the requirements of the job (safety and efficiency)
-the court will not inquire too closely where the general purpose of the standard is to ensure the safe and efficient performance of the job
Step 2 – Subjective Element - the particular standard was adopted in an honest and good faith belief that it was necessary to fulfill a legitimate work-related purpose
-analysis shifts from general purpose (safety/efficiency) to particular standard itself.
-generally will defer to employer unless there is any hint of malice
a. Identify the particular standardà(run 2.5km in 11min)
b. Why is the particular standard (run 2.5km) necessary for the general standard (identifying those who are physically fit)
-employer should be able to point to investigations which form basis for adopting particular standard
-particular standard (run 2.5km in 11min)àgeneral standard (physical fitness)àwork related purpose (safe/efficient performance of job)
c. Motive: if the imposition of the standard was not thought to be reasonably necessary or was motived by discriminatory animus, then it cannot be a BFOR
Step 3 - the particular standard was reasonably necessary to accomplish that legitimate work-related purpose
-Most difficult step, court will inquire most closely here
To show that the standard was reasonably necessary, the employer must demonstrate that it is impossible (high standard) to accommodate the individual(s) without imposing undue hardship upon the employer.
-Undue Hardship: “undue” infers that some hardship is acceptable; it is only undue hardship that satisfies the test (Central Okanagan)
Step 1: Employer must take an individual employee approach-must address the challenges of each employee and consider accommodating them and identify the point of UH for each one (Grismer) + (Central Okanagan)
Sum: assess the person individually to see if they are capable of performing the job while still meeting the employer’s legitimate work related purpose without undue hardship
Step 2: Assessing whether individual can be accommodated short of undue hardship (Alberta Dairy)
1. Cost of accommodation: size of employers operation may influence the assessment of whether a given financial cost is undue
2. Inter-changeability of employees and facilities: can an employee work in another facility or job?
“bundle of tasks” can we accommodate the worker by finding work in multiple positions so that he has a full time job (Tarxien)àphysical disability
-the size of employers operation may influence the ease with which work force facilities can be adapted to the circumstances
3. the prospect of substantial interference with the rights of other employees: will accommodating 1 employee substantially affect the rights of other employees?
4. problems of morale of other employees
-objections based on attitudes inconsistent with human rights are an irrelevant consideration
-other employees are expected to bear significant inconvenience in the search for accommodation
5. disruption of a CA
-objections based on view that integrity of CA is to be preserved irrespective of discriminatory effect on an individual employee should not be considered in assessing UH (Central Okanagan)
6. Safety of other employees:
-magnitude of risk is a consideration (Central Okanagan)
7. MINE: Can the employee perform the essential duties and requirements of the job???-->physical disability
Note: use only relevant factors; must balance factors against right of individual to be free from discrimination in deciding whether hardship caused is undue (Central Alberta Dairy Pool)
Step 3: Consider questions set out in Meiorin in deciding if standard reasonably necessary
(not a checklist; use one, some, all)
1) Has the employer investigated alternative approaches that don’t have discriminatory effect, such as individually testing against a more individually sensitive standard?
- Substantial duty on employer to investigate
2) If alternate standards found to be capable of fulfilling employers purpose, why not implemented?
3) Is there a way to do the job that is less discriminatory while still accomplishing work related purpose?
4) Is it necessary all employees meet the single standard for employer or can they be reflective of group/individual differences?
5) Is the standard properly designed to ensure that desired qualification is met without placing undue burden on them?
6) Has the union or complainant fulfilled their roles in the search for reasonable accommodation?
Sum: if the general purpose of the standard is rationally connected to the performance of the particular job, the particular standard was imposed with an honest, good faith belief in its necessity, and its application in its existing form is reasonably necessary for the employer to accomplish its legitimate purpose without experiencing undue hardship, the standard is a BFOR
Union’s Duty To Accommodate (Central Okanagan):
A union which causes or contributes to discrimination incurs liability
A union may become a party to discrimination in two ways:
1. By participating in the formulation of the work rule that has the discriminatory effect.
-This will generally be the case if the rule is a provision in the CA
2. The union impedes the reasonable efforts of an employer to accommodate
-if reasonable accommodation is only possible with the unions co-operation and the union blocks the employer’s efforts to alleviate the discriminatory effect, it becomes a party to discrimination
Note: Any significant interference with the rights of others in the bargaining unit will ordinarily justify the union refusing to consent to a measure. Although the test of undue hardship applies to a union, it will often be met by showing prejudice to other employees if the proposed accommodating measures are adopted.
Duty of Complainant (Central Okanagan):
-complainant cant hold out for perfect solution
-when an employer has initiated a proposal that is reasonable and would fulfil the duty to accommodate the complainant has a duty to facilitate the implementation of the proposal
-if failure to take reasonable steps on part of complainant causes the proposal to founder, the complainant will be dismissed
Employer’s Independent Duty to Investigate Nature of Injury:
The employer bears a duty to investigate the nature of employee’s disability (severity, impact, and anticipated duration) before making decisions with respect to the possibility of accommodation and failure to do so is a breach of the code regardless of whether or not accommodation was possible short of undue hardship (Conte v. Rogers, Rozon v. Barry)
Harassment:
While harassment may arise on any of the enumerated grounds set out in s.13, most of the jurisprudence concerns sexual harassment
Harassment=discrimination on a prohibited ground (Bell)àmust link to s. 13
Sexual harassment is discrimination based on the prohibited ground of sex (Janzen)
Sexual harassment: is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job related consequences for the victim (Janzen)
Common to all descriptions of sexual harassment is an exploitation of an uneven power differential based on sex or economics (Janzen)
Central to a finding of sexual harassment is the finding that such conduct is “unsolicited” and “unwelcomed” (Janzen)
Sexual harassment: may be blatant (leering, grabbing, sexual assault) or may be subtle (sexual innuendoes and repeated propositions for dates or sexual favours) and normal sexual or social activity may become sexual harassment where a power differential exists between the parties (Janzen)
Objective test for determining whether conduct is “unwelcome” (Janzen):
Taking into account all the circumstances, would a reasonable person know that the conduct in question was not welcomed by the complainant?
· a complainant is not required to expressly object to conduct unless a respondent would have no reason to suspect that it was unwelcome
· not only overt, but also subtle indication of unwelcomeness may be sufficient to communicate that conduct is unwelcome
· the fact that a complainant submits or tolerates sexual demands does not meant that they are welcome or unsolicited
Note: harassment of any person because of that person’s personal characteristics that are associated with a prohibited ground is a violation of human rights legislation. For example, harassment of a worker because of his race, physical or mental disability, sexual orientation (and so on) would be actionable discrimination under the statute.
Harassment: Employer Liability
Employers are liable, under the statute, for all acts of their employees done “in the course of employment” (Robichaud)àbroadly interpreted
Policy: Employer liability flows from “control of the workplace”-only employers are in a position to implement preventive measure and take effective remedial action to remove undesirable conditions (Robichaud)
Limiting Remedial Consequences:
Employers are obligated to ensure that their workplaces are harassment-free by (Robichaud):
a. taking steps to prevent harassment from occurring and,
-did the employer have established preventative measures?
-did the employer know, or ought to have known about it?
-are preventative measures sufficient?
b. responding appropriately to incidents or patterns of harassment when they do occur.
-how quickly did the employer respond?
-did the employer take it serious?
-was a thorough investigation held?
-what did the employer do to show that the conduct was unacceptable to other employees?
Note: an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent as an employer who fails to adopt such steps. These matters, however, go to remedial consequences, not liability.
Collective Bargaining
*While the Labour Relations Code applies to most public sector workers (municipal, hospital, police, firefighters etc.) it does not apply to the relationship between the Provincial Government and its employees or the relationship between teachers and schools boards. In both settings, where the legislation is silent, the LRC does apply.
*Federal industries are regulated by federal Code
Trigger Event
Trigger event: we begin to care who is an employee when there’s an application for certification
This is when the Board must decide who will be in the bargaining unit
Note: there’s a presumption of “one big bargaining unit” (creates convenience)
If the individuals are not employees, they will be certified as dependent employees in their own bargaining unit
If the individuals are employees, it must be determined whether they should be certified independently as a bargaining unit or if they can join an existing bargaining unit