Monday 28 April 2014

A Tale of Two Cities (in Alberta): The Good and Bad of Managing Human Rights in the Workplace


Two recent decisions from the Wild Rose province demonstrate the dangers an employer can face when confronted with human rights issues in the workplace, and how to appropriately address an employee’s request for medical accommodation.
In Robinson v. City of Edmonton, the complainant was a bus driver for the City who suffered from environmental ulticaria, a type of chemical sensitivity to things like diesel fumes and perfume.  For the first 8 - 9 years of her employment as a transit operator, the complainant was able to control her symptoms with over-the-counter medications, but her condition progressively worsened and she was prescribed a medication that had the side-effect of making her drowsy.  That being said, up until 2009, the City had consistently accommodated the complainant by allowing her periods of medical leave and by allowing her to trade or “sell” her shifts to other transit employees (including her husband, who was also a transit worker).  However, starting in August 2009, the complainant was off work on STD due to her medical condition.  She applied for LTD in the fall of 2009.

The complainant’s supervisor asked her to provide her LTD application and a resume in mid-October.  The City was contemplating whether there might be a different transit operator position – a Light Rail Transit (LRT) operator role – that would accommodate the complainant’s condition.  LRT operators drive from a self-contained booth, and are therefore separated from many of the irritants that would trigger the complainant’s sensitivities.  It was decided to offer this option to the complainant.  Based on this form of accommodation being made available (and confirmation from the complainant’s doctor that she was cleared to attempt a trial as an LRT operator), the LTD carrier found that she was not “totally disabled” from her own occupation, and denied her claim for benefits.
There was some dispute in the evidence about whether the complainant understood that she was being offered the LRT role as an accommodation for her return to work, but the Tribunal concluded that she was in fact aware that this alternative was being proposed.  Instead of accepting the LRT trial, however, the complainant tendered her resignation in December, stating that she did not believe she was cleared to return to work without restrictions as she still could not safely drive (while medicated) and no other options were open to her. 

After reviewing the evidence, the Tribunal concluded that the City had not discriminated against or failed to accommodate the complainant.  The complainant should have understood that she was being cleared to return to a ‘transit operator’ role in LRT and that the City was prepared to accommodate her in this position (at least on a trial basis).  Her doctor was on side with this option (as it would likely reduce her symptoms and lead to reduced medication usage) and there were no collective agreement impediments to this approach (i.e., she had sufficient seniority to sign up for LRT shifts, once she received required training).  The Tribunal held that “Accommodation is a two way street” and that the complainant had effectively ended the accommodation process by insisting that she could not drive safely and by resigning her job.  In the circumstances, the duty to accommodate did not require the City to decline the complainant’s resignation or offer her the job back.

On January 15, 2014, the Alberta Court of Queen’s Bench upheld the decision of the Tribunal, concluding that its decision was not only reasonable, but that it was “correct”.

The result in City of Calgary v. Canadian Union of Public Employees, Local 38, on the other hand, was not so favorable to the employer.  In that case, before Arbitrator Phyllis Smith, the issue was whether the employer had violated its obligations under the collective agreement in dealing with the sexual harassment complaint of the grievor, MP.  MP had been sexually assaulted by a foreman who worked for the City on a number of occasions in the fall of 2010.  Some incidents were caught on a spy camera that the grievor and her husband installed in the workplace after her initial complaints were not addressed effectively by her supervisor.  The foreman was ultimately suspended by the employer and an investigation was undertaken.  The grievor also brought criminal charges against the foreman.

Shortly after the foreman was suspended, the grievor came in to work to find what she thought was rat poison on her keyboard.  The incident was reviewed by management, but the investigation was never completed as the grievor was moved to another City facility temporarily.  When the grievor questioned what was being done about the incident, she was rebuked by her manager and warned about compliance with the Respectful Workplace Policy.  The grievor later alleged that her manager was following her home (which was found to be untrue), and so the employer determined that the grievor should attend a mandatory IME to clear her to return to work after a week of vacation.  The grievor did not attend the IME session, upon learning that the doctor was a psychiatrist whose report would be provided to the employer.  The grievor did, however, provide a note indicating that she was fit to be at work and returned to her original office location.  Upon her return, she was counselled on respectful interactions with co-workers and asked to return certain office keys that she’d had in her possession for a long time.

A grievance was filed on her behalf and she also made a complaint to the Alberta Human Rights Commission (which was held in abeyance pending the outcome of the grievance arbitration).  The foreman was permitted to take retirement, and the employer took the position in the grievance process that it had acted appropriately. 
In her decision, the Arbitrator concluded that “there was a total failure on the part of those responsible to meet the obligations under the Collective Agreement, human rights legislation, occupational health and safety legislation and the City’s Respectful Workplace Policy”.  The City was not only vicariously liable for the sexual assaults on the grievor, but for a number of serious missteps that followed:

·         Not starting an investigation when the issue was first raised by the grievor to her immediate supervisor, leaving the abuser in charge of the workplace where the grievor worked;

·         The grievor’s manager claiming that he viewed the evidence from the spy camera as “inconclusive” and not removing the grievor from the workplace or taking any steps to prevent reprisals;

·         Moving the grievor back into the workplace before the “rat poison” investigation was completed contrary to her concerns for her safety, and counselling her on being disrespectful;

·         Sending her for a psychiatric IME when she stated an intention to speak to the mayor about the situation, and insisting that she have a fitness certificate before she could return to work from a previously scheduled vacation;

·         Only removing the grievor from the workplace after her union intervened, and then only transferring her to a temporary ad hoc location, causing additional stress; and

·         Maintaining that the grievance had no merit throughout the grievance procedure.
After reviewing the evidence, the Arbitrator awarded the grievor lost wages (past and future), general damages, damages for pension loss, and special damages, totalling approximately $850,000 (less a discount for various contingencies).  The Arbitrator described the situation as a “tragic case” in which a “vulnerable victim” had her situation worsened by “insensitive management”, greatly exacerbating the effects of the sexual assaults.

If any lesson is to be learned from these two cases, it’s that careful, proactive steps can greatly mitigate an employer’s risks, particularly when addressing sensitive issues like human rights.  Failure to act with urgency and care comes with very high and unnecessary costs.

If you have a question about this post or have a human rights issue you’d like to discuss, please don’t hesitate to contact Lance Ceaser.

 

Monday 21 April 2014

Doing the “right thing”: Should an employer receive credit for correcting health & safety hazards after an accident? The Ontario Court of Appeal says “No”


The Ontario Court of Appeal recently ruled on whether corrective action taken by an employer after an accident (and an Order from a Ministry of Labour (“MOL”) Inspector) should mitigate the sentence the employer receives for breach of the Occupational Health and Safety Act (the “OHSA”).  In Ontario (Ministry of Labour) v. Flex-N-Gate Canada Company, an employee was injured after a bundle of metal sheets slipped off of a fork lift and struck the worker, causing serious injuries to her foot.  A MOL Inspector investigated the accident, and issued two orders to Flex-N-Gate.  The company complied with both orders immediately.  At trial, the Justice of the Peace found that the employer was guilty of offences under the OHSA, and imposed fines of $25,000 each on two counts, for a total fine of $50,000.  The total fine was well below the $500,000 maximum that an employer could face for each offence.
The employer appealed the decision to the Ontario Court of Justice, where the judge upheld the fines, but made them “concurrent”.  In effect, the total fine was reduced to $25,000.  Most significant to the judge’s ruling was her determination that Flex-N-Gate should receive credit for taking “ameliorating action” immediately following the issuance of the MOL orders, as a “reward” for doing “the right thing”.  The MOL appealed the decision.
At paragraph 19 of its decision, the Court of Appeal upheld the Ministry’s position on whether an employer should be credited for taking action after orders have been issued, stating:
… The court should not have discretion to treat an employer’s post-offence compliance, though statutorily required, as a mitigating factor on sentence.  Doing so would undermine one of the most important goals of the OHSA – accident prevention – and the statute’s most important sentencing principle – deterrence.
The Court found that treating corrective action after an accident as a mitigating factor on sentencing would create a disincentive to employers from taking preventive action before an accident occurs.  The Court of Appeal cited case law under the Environmental Protection Act, and adopted the view that actions taken after an incident that breaches public welfare legislation could be seen as an aggravating factor, since it demonstrates that hazards were discernible and could have been corrected in advance.  In short, the Court concluded (at para. 30):
If, after having contravened a safety standard, an employer then acts to correct the problem, it is not “doing the right thing”; it is doing what the statute requires it to do.  It ought not to be “rewarded” for its compliance.
However, the Court did observe that corrective action that exceeds what is required by an Inspector’s order and/or steps taken in advance of an accident to prevent or reduce the risk are valid mitigating considerations.
The Court then went on to find that prior cases decided by the Court of Appeal had found that “concurrent fines” were not available to a court under the OHSA and the Provincial Offences Act.  The court must consider the totality of the fines imposed to ensure that the ‘punishment fits the crime’, but has no discretion to make the fines for two or more offences concurrent.
The decision should remind employers that identifying and mitigating health and safety risks to prevent accidents is the focus of the OHSA.  Unless an employer takes bigger steps than required by the MOL after an accident, the corrective action will not reduce the penalty to be imposed.  In fact, taking steps after an incident may signal to the MOL that the employer was aware of the hazard and not duly diligent in addressing it. 
Do you have a health and safety issue in your workplace?  Contact Lance Ceaser to discuss your questions about the Occupational Health and Safety Act or to obtain representation.

Tuesday 15 April 2014

Unpaid Internships – Going the way of the dodo?


Recently, a lot of attention has been focused on unpaid internships offered to students and other young job-seekers in Ontario.  With internships topping the list of Ministry of Labour “blitz” targets, the shuttering of intern programs at the Walrus and Toronto Life in response to Ministry enforcement activity, and the decision by Rogers to eliminate their unpaid internship programs at Flare and Chatelaine, there appears to have been a sea-change in attitudes toward these programs.   Beyond enforcement action by the Ministry, employers may have also heard about a significant increase in litigation south of the border, as unpaid interns have brought class actions against large companies for alleged failure to abide by the Fair Labor Standards Act.  All of this has led many employers to question the feasibility of their own training programs.

So, should organizations continue to offer valuable work experience to youth entering the job market by providing unpaid positions?  The answer to that question is partly legal and partly practical.
The Employment Standards Act, 2000 (the “ESA”) provides that there are limited circumstances in which an employer can offer unpaid ‘training’ positions to young workers.  First, there is the typical “co-op” program (section 3(5)¶ 2).  To qualify, the work must be performed “under a program approved by a college of applied arts and technology or a university”.  Aside from structured co-op programs, however, there is a second, less concrete form of training arrangement that is likewise exempt from the ESA.  In order to meet the exception, all of the following conditions must be met:

  1. The training is similar to that which is given in a vocational school.
  2. The training is for the benefit of the intern, such as imparting new knowledge or skills.
  3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.
  4. The training doesn't effectively take someone else's job.
  5. The employer isn't promising a job at the end of the training.
  6. The intern has been told that he or she will not be paid for their time.
The focus of these conditions is on the educational or experiential value of the opportunity to the intern.  For many employers, meeting all of the conditions will be challenging, particularly balancing the provision of valuable learning to the student while deriving little benefit from the work. The Ministry has been clear that these are “very restrictive conditions”, suggesting that very few such arrangements are likely to be found to comply with the ESA.

If an intern is found to not meet these conditions, then the Ministry will find that they are “employees” of the employer and subject to all of the terms of the ESA, including hours of work, eating and rest periods, overtime and minimum wage requirements.  Where unpaid interns are found to be employees, an Order to Pay wages and vacation pay is almost a certainty.
However, beyond the strict legal preconditions, there are practical considerations, too.  Many interns have expressed concerns with the quality of the internships that they have been offered.  And dissatisfied, unpaid interns are much more likely to generate complaints or legal claims.  Therefore, it’s imperative that organizations ask themselves some questions (which also happen to dovetail with the legal requirements above):

·         Is there work that can be provided to a young worker that will enhance their formal education and training?  If the work in question is repetitive and mechanical, it’s unlikely the intern will receive much value or satisfaction from the experience.  A training program should be designed that takes into account the educational background of the intern to ensure that valuable practical skills are being imparted.
·         Assuming there are functions that will have practical value to the worker, would the organization generally have those functions performed by an employee?  If so, it may appear that the employer is benefiting and increase the intern’s sense that they are essentially an unpaid source of labour.
·         Are interns part of the employer’s overall labour strategy, or in addition to the workforce that would normally be retained?  Again, if it appears that the employer is “counting on” interns in order to meet its production requirements, it’s likely the employer will appear to be benefiting from unpaid labour.
·         How long are internship terms?  Are the same workers being offered multiple renewals of their internship arrangement?  The longer interns are retained and/or the more frequently they are renewed, the more likely that resentment will build that their services are being supplied for free without any prospect of paid employment.
·         Will the employer be in a position to ultimately offer paid positions to some individuals who perform internships?  While an employer should not promise employment flowing from the unpaid training (see the 5th condition above), if it is clear that future employment with the organization is improbable, interns may become frustrated.
Providing a good work environment and ensuring that the organization’s internship program generates real benefit for trainees is perhaps the best means of ensuring both compliance with the ESA and that interns will not become dissatisfied.

If in doubt whether existing internship arrangements are consistent with legal requirements, however, employers would be well-advised to consider converting internship positions to paid, fixed-term trainee roles.  Ensuring that trainees receive at least minimum wage and other entitlements under the ESA is perhaps the best means of avoiding compliance issues in the current environment.

If you have questions or concerns about an internship program, feel free to contact Lance Ceaser to discuss.

Tuesday 1 April 2014

Recent Cases Highlight Individuals’ Liability for OHSA Violations


Three recent decisions of the Ontario Court of Justice show just how imperative it is for employers and workers to take their responsibilities under the Occupational Health and Safety Act (the “OHSA”) seriously.
Following a lengthy trial, that started in 2011 and was concluded in 2013, Justice of the Peace Mary A. Ross Hendricks passed down her sentence in Ontario (Ministry of Labour) v. J.R. Contracting Property Services in March this year.  In October 2008, a worker employed by J.R. Contracting was on the roof of a residential garage tossing loose shingles into a trash bin when he rolled off, landing on a concrete walkway.  As a result of his fall, he injured his spinal cord, leaving him permanently paralyzed from the waist down.  The Ministry of Labour investigated and charged the company, Teisha Lootawan (as a supervisor), and Andrew J. Haniff (for obstructing the investigation). 

At trial, the evidence disclosed that the injured worker was employed by J.R. Contracting and that he was neither provided with fall equipment nor trained in its use, although he was sent to perform work on a roof that was over three (3) metres off the ground.  The fact that he and his co-worker had drank as many as three beers before starting the job did not reduce the company’s culpability for failing to take all reasonable precautions in the circumstances.  The Justice of the Peace also concluded that Ms. Lootawan had been responsible for directing the two workers to the job location (a residential property in Toronto), and told them that they would be working on the roof, but did not ensure that they had and used fall protection.  In the course of the Officer’s investigation, it was found that Mr. Haniff had refused to answer any questions with respect to what he had done after receiving a call from the homeowner, although this information was relevant to the accident investigation.

The company received a $75,000 fine, which was in the mid-range for an accident of this nature, for failing to take all reasonable precautions to protect the safety of a worker.  Mr. Haniff was fined $2,000 for his refusal to cooperate with the Officer’s investigation. However, most surprisingly, the Justice of the Peace ordered that Ms. Lootawan serve 45 days in custody, to be served continuously.  In large part, this sentence reflected the fact that Ms. Lootawan had prior convictions under the Provincial Offences Act (for violation of the Environmental Protection Act), had been sentenced to jail on an intermittent basis in the past, and had not paid over $50,000 in fines that were previously imposed.  The JP was persuaded that neither fines nor an intermittent custodial sentence would be likely to deter Ms. Lootawan from committing further infractions.

In another case recently reported by the Ministry of Labour, a JP ordered fines against both a Mississauga construction company and one of its Directors.  In R. v. Starland Contracting Ltd. (unreported).  During one visit to the site (where the company was working on the construction of a self-service car wash), an inspector from the Ministry of Labour had observed a worker on a roof without a hard hat or fall protection.  The same inspector paid a follow-up visit to the site a couple of months later, where he encountered one of the Directors of the company (Murad Ebeid) acting as a supervisor on site.  When the inspector approached him, Mr. Ebeid swore at the inspector, told him to leave the site, and made threatening gestures and comments towards the inspector. When asked, Mr. Ebeid also refused to show identification to the inspector.  On a visit the next day, the company could not produce a Notice of Project or Form 1000, and then failed to produce the documentation by the date ordered by the inspector.

For its violations of the Act, the company was fined $29,500 (for failing to ensure a worker was using fall protection and wearing a hard hat, and for failing to comply with an order of the inspector).  Mr. Ebeid was also fined $8,500 personally for obstructing the inspector and for failing to show I.D. when requested.
These cases highlight the risks for supervisors who are not compliant with their obligations under the Act.  However, another recent reported case suggests that workers are also not immune from prosecution.  On November 13, 2014, Justice of the Peace Mary A. Ross Hendriks ordered a worker to pay a fine of $1,500 for his violation of the OHSA.  The worker, Christopher Schwaemmie, was working as a hoist operator on a Toronto job site when he was observed jumping from a hoist tower to a nearby rooftop, approximately 50 feet above the ground.  Mr. Schwaemmie was wearing a fall protection harness and lanyard, but was not tied off.  The worker pled guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres.

These decisions demonstrate that employers, supervisors and employees all need to be more vigilant in ensuring work is performed safely, particularly when work at heights is involved. They also demonstrate the willingness of the Ministry of Labour to pursue charges against individuals (not just large, corporate employers) where the Act is not being followed. 

If you have questions about these decisions, your obligations under the OHSA, or are facing potential prosecution, please do not hesitate to contact Lance Ceaser.