1. Human Rights in the SAFE Workplace
Simon Gillingham
Workplace Consultant
City of Winnipeg #

2. ♦ Right to Participate ♦ Right to Refuse Worker Rights
Every worker has the following rights:
♦ Right to Know
♦ Right to Participate
♦ Right to Refuse

3. COMPETING RIGHTS Paramount Status Human Rights Legislation
To be interpreted broadly
Can’t contract out of Human Rights

4. Edmonton police set to unveil official hijab that Muslim officers can wear on duty SOURCE National Post

5. Legal Basis The Human Rights Code – 13, 14, 9 (1)(d), 9(2), 12
Court and Tribunal Decisions – “Meiorin”
Employment
Services

6. Who is responsible for work accommodations?
**Employer** Employee Union

7. Protected Characteristics?
ancestry, including colour and perceived race
nationality or national origin
ethnic background or origin
religion or creed, religious belief, religious association or activity
age
sex, including pregnancy, the possibility of or circumstances related to pregnancy
gender-determined characteristics or circumstances other than those included under ‘sex’
sexual orientation
marital or family status
source of income
political belief, association or activity
physical, or mental disability including reliance on a dog guide or other animal assistant, a wheelchair or any other remedial appliance or device
New as of June 2012 : Gender Identity and Social Status
Ancestry - lineage or bloodline (group born into)
nationality or national origin- where a person comes from
ethnic background or origin - cultural background or origin
religion - this section is interpretted by the Commission to include the presence or absence of a religion
age - too young/too old
sex, including pregnancy -
gender-determined characteristics or circumstances other than those included under ‘sex’ - recent complaints would include those persons who claim that they are discriminated against b/c they are transgendered (born male, but live as & are in process of changing sex to female)
sexual orientation - person not hired b/c married to someone who works in same dept/company
marital or family status
source of income
political belief, association or activity
physical, or mental disability including reliance on a dog guide or other animal assistant, a wheelchair or any other remedial appliance or device

8. Pregnant or nursing workers
must be informed of any risk that conditions in the workplace may pose to them or their unborn or nursing child.
Where it is reasonably practicable an employer must take steps to minimize the exposure, or
if alternate work is available that involves no
risk or less risk, assign the worker temporarily to that alternative work.

9. General Principles Respect for dignity Individualization Inclusion
Trial & Error
Dignity of Risk
ALL ASPECTS !!

10. Proactive
Reactive !
In Practice

11. PROACTIVE WELLNESS PROGRAMS FITNESS PASSES FOR EMPLOYEES ON LTD
INCLUDE LTD EMPLOYEES IN TRAINING/ WORK EVENTS
JOB STRENGTHING COACH
ENCOURAGE WORK HARDENING PROGRAM BEFORE RETURN TO WORK
GRACE PERIOD FOR PERFORMANCE

12. “Employment” broadly defined
“any aspect of an employment or occupation"

13. Changes required at work?
physical workspace, computer software
job expectations, requirements, quotas
scope of work , bundling
hours of work, varied, PT

14. Challenges Defining Undue hardship is elusive
Assessments must be individualized
Medical information & privacy issues
Employee can refuse to provide medical
Cannot require employee to see physician
Verifiable evidence vs. impressionistic
Inconvenience not Undue Hardship

15. Mental Health ISSUES Depression most frequent disability [2020]
1 in 4 Manitobans will have MH illness
Anxiety
Stress – claims Supervisor is cause
Employee not cognizant
Stigma
Culpable versus non-culpable

16. Drug & Alcohol Testing Supreme Court decision 2013 Only test for cause
Post incident
Record as near miss and/or incident
Pre-employment testing?
Treat addiction as disability

17. DUTY TO INQUIRE Onus on Employer to inquire Duty to act Addictions
Mitigating factors in discipline hearings
Fact versus assumptions

18. Dignity of Risk Right to make decision Acceptable personal risk
No undue risk to other employees
No undue risk to public
Workers Comp No-Fault insurance
No guarantee of absolute safety
Verifiable vs. impressionistic
Inherent to the job

19. (b) the substantive content of any accommodation offered
In Meiorin vs. British Columbia (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R.) the Supreme Court referred to two inquiries to consider with respect to accommodation:
the procedure adopted by the employer to assess the issue of accommodation; and
(b) the substantive content of any accommodation offered
[Liability attached to both!!]

20. Searching for an accommodated position

21. Changes required in a WORK environment?
Physical facilities
Reduced hours, part-time, work at home
Alternate formats for
communications
Bundling
Exceptions to
policies (e.g. attendance)
Uniforms, equipment, tasks etc.
Dignity of Risk.

22. UNDUE HARDSHIP

23. Cost of doing business
More than a mere negligible effort is required to satisfy the duty to accommodate. The use of the term undue infers that some hardship is acceptable. It is only undue hardship that satisfies this test
Central Okanagan School Dist. No 23 v.
Renaud (1992, Supreme Court of Canada)

24. NOT REQUIRED… Fundamental changes to position Employee preference!!
Paying for no work or unnecessary work
Absolutely everything possible
Complete unfitness for work for the foreseeable future
Ignoring previous accommodations made

25. FACTORS financial cost impact on collective agreement morale
interchangeability
size
Safety
BFOQ

26. B.F.O.Q.
Bona Fide and reasonable discrimination does not extend to allow for the failure to accommodate based on 9(2) characteristics.

27. Bona Fide Occupation Requirement
Good Faith and rationally connected?
Impossible to Accommodate
Evidence of investigating alternatives
Consulted with experts
Systemic implications
Universal or inclusive

28. F.A.Q. How long does obligation continue? Pay issues
After the accommodation
Unionized workplaces i.e. cross union
Posted vacancies
Attendance management
Accommodation funding [WCB, EPB,CPP]

29. PRE-EMPLOYMENT Applicant not required to disclose disability
Physical testing must be related
Individized testing required
If disability disclosed obligation to accommodate
Review systemic barriers
Section 11 of The Code

30. Case law Firefighter Ont. [Davis] Safety gear [Steel toe]
Paramedic driver’s license [Cassidy-MS]
Hearing impaired

31. County of Brant v. OPSEU, 2013 ONSC 1955 (CanLII)
Judicial Review of Labour Arbitration
Paramedic with injuries requests accommodation as 3rd Ambulance attendant
Still had lifting restrictions
Risks inherent to the position
The risks he assumes are potential risks and not direct threats