Presentation on theme: "Human Rights in the SAFE Workplace"— Presentation transcript:
1Human Rights in the SAFE Workplace Simon GillinghamWorkplace ConsultantCity 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
3COMPETING RIGHTS Paramount Status Human Rights Legislation To be interpreted broadlyCan’t contract out of Human Rights
4Edmonton police set to unveil official hijab that Muslim officers can wear on duty SOURCE National Post
5Legal Basis The Human Rights Code – 13, 14, 9 (1)(d), 9(2), 12 Court and Tribunal Decisions – “Meiorin”EmploymentServices
6Who is responsible for work accommodations? **Employer** Employee Union
7Protected Characteristics? ancestry, including colour and perceived racenationality or national originethnic background or originreligion or creed, religious belief, religious association or activityagesex, including pregnancy, the possibility of or circumstances related to pregnancygender-determined characteristics or circumstances other than those included under ‘sex’sexual orientationmarital or family statussource of incomepolitical belief, association or activityphysical, or mental disability including reliance on a dog guide or other animal assistant, a wheelchair or any other remedial appliance or deviceNew as of June 2012 : Gender Identity and Social StatusAncestry - lineage or bloodline (group born into)nationality or national origin- where a person comes fromethnic background or origin - cultural background or originreligion - this section is interpretted by the Commission to include the presence or absence of a religionage - too young/too oldsex, 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/companymarital or family statussource of incomepolitical belief, association or activityphysical, or mental disability including reliance on a dog guide or other animal assistant, a wheelchair or any other remedial appliance or device
8Pregnant 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, orif alternate work is available that involves norisk or less risk, assign the worker temporarily to that alternative work.
9General Principles Respect for dignity Individualization Inclusion Trial & ErrorDignity of RiskALL ASPECTS !!
11PROACTIVE WELLNESS PROGRAMS FITNESS PASSES FOR EMPLOYEES ON LTD INCLUDE LTD EMPLOYEES IN TRAINING/ WORK EVENTSJOB STRENGTHING COACHENCOURAGE WORK HARDENING PROGRAM BEFORE RETURN TO WORKGRACE PERIOD FOR PERFORMANCE
12“Employment” broadly defined “any aspect of an employment or occupation"
13Changes required at work? physical workspace, computer softwarejob expectations, requirements, quotasscope of work , bundlinghours of work, varied, PT
14Challenges Defining Undue hardship is elusive Assessments must be individualizedMedical information & privacy issuesEmployee can refuse to provide medicalCannot require employee to see physicianVerifiable evidence vs. impressionisticInconvenience not Undue Hardship
15Mental Health ISSUES Depression most frequent disability  1 in 4 Manitobans will have MH illnessAnxietyStress – claims Supervisor is causeEmployee not cognizantStigmaCulpable versus non-culpable
16Drug & Alcohol Testing Supreme Court decision 2013 Only test for cause Post incidentRecord as near miss and/or incidentPre-employment testing?Treat addiction as disability
17DUTY TO INQUIRE Onus on Employer to inquire Duty to act Addictions Mitigating factors in discipline hearingsFact versus assumptions
18Dignity of Risk Right to make decision Acceptable personal risk No undue risk to other employeesNo undue risk to publicWorkers Comp No-Fault insuranceNo guarantee of absolute safetyVerifiable vs. impressionisticInherent 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,  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!!]
21Changes required in a WORK environment? Physical facilitiesReduced hours, part-time, work at homeAlternate formats forcommunicationsBundlingExceptions topolicies (e.g. attendance)Uniforms, equipment, tasks etc.Dignity of Risk.
23Cost of doing businessMore 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 testCentral Okanagan School Dist. No 23 v.Renaud (1992, Supreme Court of Canada)
24NOT REQUIRED… Fundamental changes to position Employee preference!! Paying for no work or unnecessary workAbsolutely everything possibleComplete unfitness for work for the foreseeable futureIgnoring previous accommodations made
25FACTORS financial cost impact on collective agreement morale interchangeabilitysizeSafetyBFOQ
26B.F.O.Q.Bona Fide and reasonable discrimination does not extend to allow for the failure to accommodate based on 9(2) characteristics.
27Bona Fide Occupation Requirement Good Faith and rationally connected?Impossible to AccommodateEvidence of investigating alternativesConsulted with expertsSystemic implicationsUniversal or inclusive
28F.A.Q. How long does obligation continue? Pay issues After the accommodationUnionized workplaces i.e. cross unionPosted vacanciesAttendance managementAccommodation funding [WCB, EPB,CPP]
29PRE-EMPLOYMENT Applicant not required to disclose disability Physical testing must be relatedIndividized testing requiredIf disability disclosed obligation to accommodateReview systemic barriersSection 11 of The Code
31County of Brant v. OPSEU, 2013 ONSC 1955 (CanLII) Judicial Review of Labour ArbitrationParamedic with injuries requests accommodation as 3rd Ambulance attendantStill had lifting restrictionsRisks inherent to the positionThe risks he assumes are potential risks and not direct threats