Handling Labour Relations Disasters

Handling Labour Relations DisastersA female employee was involved in a romantic relationship with a male member of the team. He was married. She had enough. The romance ended. He was unable to accept the end of the relationship. He called her repeatedly, at home and at work. He openly harassed her. He distributed photos of her. The woman, her co-workers, and supervisors all saw what was happening, but no one quite knew how to help. Some didn’t know if it was their business to intervene. Some thought this was a “private matter.” Eventually, the mentally unstable man came to the workplace. He stabbed the woman, causing her death. He then left the workplace, and killed himself.

This is a true story.

Consider the tragic human elements involved; the impact for the families of both people involved. Consider the implications for the human resource professionals, for the union, and for every individual working in this organization:

  • There is widespread shock among employees, some of whom witnessed the episode
  • There is guilt among supervisory staff, who were aware of the harassment
  • There is a sense of danger that permeates the workplace, and has impact on morale
  • Numerous grievances are filed, asserting failure to provide a safe workplace
  • Numerous complaints of harassment are lodged
  • Absenteeism rises dramatically
  • Performance is affected, but supervisors are reluctant to counsel or impose discipline
  • Gossip is rampant
  • There appears to be no exit strategy from the disaster.

Not all workplaces, thankfully, experience harassment that leads to such an extreme result. But this episode has been taken, in the province of Ontario, and across the country, as a lesson in how to heed the warning signs of workplace violence. The warning signs are critical because criminologists tell us that most violent acts are precipitated by warnings—sometimes clear cries for help.

We have all learned the importance of addressing harassment complaints in a vigorous and thoughtful manner, knowing that our activities in this field have potential to save a life, to protect our employees from hurt and from fear, and to save our organizations the institutional pain of workplace disaster.

We have learned how to approach grievance handling, for example, from a “strategic” perspective—one that addresses the causes of grievance backlog, the root of piled-up grievances that deal with the same area of discontent, and lead to a clear path from the catastrophic potential of workplace conflict to a safer environment with more effective practices for identifying and preventing an escalation of hostility. Let’s consider the lessons that have been taken from the factual situation described above.

Best Practices in Dealing with Harassment Complaints

With statutory changes across the country, issues of workplace violence and harassment have become occupational health and safety issues. It becomes mandatory for employers, employees, supervisors, and unions to address complaints of harassment with a deliberate and serious approach.

Harassment complaints are serious. They should be addressed quickly—even if the usual pace for addressing complaints or grievances would provide for longer timelines.

Employees have to feel that making a complaint is easy. In some workplaces, written complaints are appropriate, but in others, it may be that employees will be more comfortable meeting privately with the appropriate individual to orally report their experiences.

Employees who have harassment complaints should be given the opportunity to tell their story—fully and in their own way. The listener is advised to listen actively, without judging the story. Listen first and investigate later.

Complaints should be received and heard by the appropriate person in the appropriate position. These are serious complaints, and the organization’s practices should reflect that fact. If the employee needs to complain about the person who would otherwise hear their complaint, such as their own supervisor, then an easily accessible alternate route should be available, and should be made known.

Employees should understand that if their complaint is to be taken seriously, it must be investigated, and cannot be kept confidential. The alleged harasser has rights. He or she is entitled to know what the complaint is, who made it, and what the particulars of the complaint are.

It is often appropriate to take immediate steps to separate the individuals involved, until investigation can take place. Sometimes, the facts warrant suspension of one person pending investigation.

If the complaint involves an allegation of a criminal act, such as threatening, assault or sexual assault, police should be called.

Numerous Related Grievances

It is common, when several grievances are filed addressing the same area of concern, for the union to file a policy grievance that will enable systemic consideration of the identified problem. If the organization becomes aware of numerous complaints that raise issues of harassment, the situation may be considered serious. Each of these complaints presents its own significant human drama, with potential to affect the lives of each person involved. Each involves issues of fear, insult, trust, uncertainty, vulnerability, and ultimately, aggressive adversarial conflict. When harassment grievances are significant in number, the strain on the organization (not to mention the strain on human resources professionals and union executive) can prove costly and disruptive.

In a workplace that does not take a “strategic” approach to grievance management, both union and management officials may be inundated with a high volume of time-consuming grievance work. Morale will be impaired. Conflict among co-workers may escalate. There may be a toxic individual, or a combustible relationship on the making. This is not healthy.

Best practices include meeting with union officials immediately and listening carefully to the complaint. Given the potential that an early harassment complaint may be a cry for help, or a warning of potential physical violence, consider interim preventative measures, such as the separation of individuals that were referred to earlier, while investigation takes place. Particularly in cases of multiple harassment complaints naming the same alleged wrongdoer, strategic management may include stepping away from the usual grievance procedure, and quickly moving to explore the issues and allegations. This is a situation in which it makes good sense to err on the side of greater caution.

Cases of Union Conflict

Harassment complaints often involve co-workers. Both the complainant and alleged wrongdoer may be members of the same bargaining unit. The union finds itself in a tough position, because it has an obligation to represent both individuals.

In cases where more than one complaint is made against the same individual, it is likely that there is a high degree of animosity among bargaining unit members, many of whom would prefer a safe workplace without the alleged harasser present. The union and local executive will be under considerable pressure.

The union’s conflict will have to be carefully considered, and a solution found. Generally speaking, it makes good sense for the union to represent one of the individuals, or the group with the same interest, and assume the responsibility of securing and paying for independent legal counsel for the other.

Making the Most of Grievance Meetings

Grievance procedures are often overlooked as useful and potentially effective dispute resolution mechanisms. This is a costly error in strategic grievance management, whether one is working from the union or management perspective.

Grievance meetings are required to take place early in the grievance procedure. With the appropriate people in the room, focussing on the problem, armed with the facts that are available at this stage, a thoughtfully conducted grievance meeting can provide excellent opportunity to manage a potentially violent situation.

Strategic management of grievance meetings requires consideration of who should attend. To the greatest extent possible, facts should be gathered in preparation for that discussion. In cases of serious harassment allegations, or multiple harassment allegations, consider sharing data in a fulsome way at this early stage. Share early investigation results. Prepare the grievance committee or management team to listen carefully, to convey uniform information, and to be consistent in the goal of the meeting. Particularly in addressing a serious harassment complaint, the grievance meeting is no place for inter-team conflict or individual political agendas.

Controlling the Grievance Process

If the matter does not resolve at the grievance meeting, consider the next important steps in handling the harassment grievance. There is a critical decision to be made about proceeding to arbitration or mediation. Consider which process is right for this case. What are the pros and cons of each process? Do you need a legal precedent in the case? Do you need an award that is public, rather than a settlement that may be confidential? Can the grievor withstand the arbitration process? Should he or she be exposed to cross-examination, and the formalities and stresses of arbitration?

Consider whether arbitration or mediation will be the most desirable process for the labour relations between the parties. The harassment grievance puts a strain on everyone in the workplace, but the relationship is a long one, and will continue after this dispute is resolved. Which process will, in the circumstances, best serve the long term goals?

The strategic practitioner is in control of every aspect of the grievance process. He or she is a professional who knows where the case is going, how it will look when it gets there, and why it is at this stage. The strategic practitioner is not always ready to face workplace disaster. None of us are. But when it strikes, the strategic practitioner will be position to go to the rule book, to evaluate the options, and to fearlessly control the process as it matures. The strategic practitioner is one who brings this expertise to the job, and with it, their passion and commitment to the role of problem solver.

About the Author

Elaine Newman - Handling Labour Relations DisastersElaine Newman, Ba, LL.B., LL.M., called to the bar in Ontario in 1979.

Elaine is a very experienced full-time arbitrator and mediator, specializing in labour relations, employment, and human rights matters. She is a teacher, an author, and frequent speaker on labour, employment and human rights issues.

Elaine served as Associate Director of the LLM program in Labour Relations and Employment Law at Osgoode Hall Law School 2002 to 2008.

She was lead instructor for the Advanced Dispute Resolution Course at Atkinson Faculty, York University for ten years, where she taught the Ethics of Mediation course, and the Advanced Practicum course. She is a frequent guest speaker at the Queen’s University Industrial Relations Centre (IRC), and is lead instructor of the IRC’s Strategic Grievance Handling program.

Elaine is the author of the online course, “Practical Ethics for Working Mediators”, offered by the ADR Institute of Ontario.  Her textbook, Preventing Violence in the Workplace, is published by Lancaster House, Toronto.

Managing Mental Health in the Workplace

Managing Mental Health in the WorkplaceUnderstanding and complying with the employer’s legal duty to accommodate disabled employees is one of the biggest challenges facing labour relations professionals today. This is particularly so in the case of mental health issues. The statistics are telling. It has been reported that one in six Canadians will suffer from mental illness at one point in their lives1 and that one out of every four to five employees is affected by mental health issues every year.2 The management of employees who are suffering from mental health-related illnesses creates a number of unique challenges for employers. For example, employers must often determine if the duty to accommodate is engaged, and whether accommodation can be achieved, with less information than may otherwise be available for other forms of disability. Unlike an employee who has a physical injury or condition, employees who suffer from a mental illness are often reluctant to approach their employer for accommodation. Moreover, while the vast majority of employees suffering from mental illness are not a danger to themselves or others, employers must also balance conflicting responsibilities to ensure a safe workplace free from violence and harassment with their duty to accommodate.

The following discussion will first provide an overview of the duty to accommodate employees with disabilities and the obligations of the workplace parties in the accommodation process. Next, the paper will review unique issues related to the accommodation of employees with mental illness. Finally, the paper will provide a review of recent jurisprudence addressing the intersection of mental illness, violence, and harassment in the workplace, and the conflicting obligations that arise under various employment-related legislation, including human rights and health and safety.

The Duty to Accommodate

Canadian human rights legislation recognizes a disabled employee’s right to be treated equally with respect to employment, without discrimination. This legislation defines “disability” to include mental disorders.

The Ontario Court of Appeal recently defined disability to include mental impairment in Entrop v. Imperial Oil 3 as follows:

… an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning.4

Accordingly, the duty to accommodate may be triggered when an employee’s mental health interferes with the performance of his or her work. As with other disabilities, it is not sufficient for an employee to provide a self-diagnosis. In order to meet the definition of disability under Canadian human rights legislation, there must be a diagnosis of a recognized disability from a health professional in a report or other source of evidence that has specificity and substance.5

Accommodation to the Point of Undue Hardship

There is both a substantive and a procedural requirement to an employer’s legal duty to accommodate a disabled employee. The substantive duty requires the employer to accommodate the needs of the employee to the point of undue hardship. The Supreme Court of Canada has acknowledged that this will require the employer to tolerate some level of hardship.6 To determine what constitutes “undue” hardship, adjudicators look closely at the facts of each specific case. The Supreme Court of Canada has noted that:

The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee and the specific circumstances in which the decision is to be made.7

The Supreme Court has also made it clear that the test is not whether it is possible for the employer to accommodate the employee’s need.8 To satisfy the duty to accommodate, employers are not required to change working conditions in a fundamental way.9 As a result, the duty to accommodate does not require employers to create non-productive positions. While the duty to accommodate will obligate employers to accept a degree of reduced performance, employees must still be capable of performing the essential duties of the job.

The Procedural Component

Adjudicators have recognized that, in addition to the substantive requirement to accommodate disabled workers, there is also a procedural component to the duty which must be met. The Human Rights Tribunal of Ontario has held that the failure to meet the procedural component of the duty to accommodate is a form of discrimination in and of itself.10

The procedural duty to accommodate requires that the employer both inquire and assess.11 This means obtaining all relevant information about the employee’s disability, at least where it is readily available, including information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work.

The procedural component of the duty to accommodate will only be met once the employee’s workplace limitations are understood by the workplace parties and an investigation has been conducted into possible accommodated positions within the workplace. To satisfy the procedural requirement of the duty to accommodate, an employer must complete an assessment of the employee’s capabilities and then compare these to available jobs in the workplace.

The Union’s Duty

The investigation into possible modes of accommodation is a multi-party inquiry requiring the participation of the employer, union, and the disabled employee. Unions will be required to participate in the process of accommodation where the collective agreement is found to be the mechanism of discrimination, or where the union has impeded reasonable efforts made by the employer to accommodate the employee.12 In Central Okanagan School District No. 23 v. Renaud,13 the Supreme Court of Canada held that a union that causes or contributes to the discriminatory effect incurs liability. To avoid liability, the Supreme Court of Canada further held that a union must discharge its duty to accommodate.

The Employee’s Duty

While the jurisprudence clearly suggests that the onus is on an employer to initiate the process of accommodation, the Supreme Court of Canada has recognized that the task of identifying suitable means of accommodation is a two-way street. Specifically, the Supreme Court of Canada has stated that when an employer has initiated a reasonable proposal for accommodation, then the employee has a corresponding duty to facilitate the implementation of the proposal.14 Failure of the employee to take reasonable steps to facilitate his or her accommodation will result in a complaint being dismissed.15 The jurisprudence is clear that a disabled worker cannot demand a perfect solution but must accept a reasonable compromise.16

Arbitrators have recognized that there is also a duty on a disabled employee to provide the employer who is endeavouring to accommodate him or her with medical updates and feedback on the suitability of the means of accommodation.17 In Keays v. Honda Canada Inc.,18 the plaintiff in a wrongful dismissal action had alleged that the actions of the employer in monitoring his absenteeism were discriminatory. The Supreme Court of Canada rejected this argument, finding that the employer’s attempts to obtain medical justification for the employee’s absenteeism was part of the accommodation process in that it permitted absences from work and relieved the employee from facing potential disciplinary action with respect to those absences.

An employee who is experiencing mental illness is also required to facilitate the accommodation process. In Transit Windsor v. Amalgamated Transit Union, Local 616 (O’Brian Grievance),19 the union claimed that a grievor’s threat against a supervisor was brought on due to clinical depression which was aggravated by stress. With respect to the disabled employee’s duty to assist in the process of accommodation, the Arbitrator stated:

I also note that the Grievor has a duty to act reasonably whenever seeking accommodation at work for her professed disability, to that end; she has a duty to report immediately (to the Employer) when she is suffering adverse consequences from stressful situations: failing to do so in a timely manner may in fact cause her further problems at work, she is advised to be more open and forthright with her Supervisors about her condition in the future, and to relay her concerns in a businesslike manner.20

The employer in this case was required to accommodate the grievor by placing her in a less stressful environment.

Accommodation of Mental Health Issues

When an employee’s disability derives from a mental disorder, adjudicators will look closely at the facts of the incident in question to determine if there is a clear nexus between the illness and the impugned behaviour. Where a nexus is found, the duty to accommodate will be engaged.

In Ontario Power Generation v. Society of Energy Professionals,21 the employee failed to prove that there was a clear nexus between his behaviour and the mental disorder from which he suffered. In that case, a professional engineer with 12 years of service grieved his resignation. The employee had suffered from depression, anxiety, and panic attacks brought on by difficulties in his personal life. He went off work due to his condition and, after approximately 10 months, the employer’s long term disability provider stopped paying his benefits. In frustration, the grievor sent an e-mail to the company and his union representatives resigning his employment. The company accepted the resignation. Two weeks later, the grievor wrote the company and attempted to retract his resignation. The grievor claimed that his actions were the product of irrational behaviour brought on by his illness. The union alleged that the acceptance of the resignation by the company was discriminatory. The Arbitrator found that there was no contemporaneous medical evidence to support the grievor’s contention that he did not have the capacity to make a rational decision when he resigned. Furthermore, the Arbitrator held that there was no evidence in the impugned communication that he was suffering from a panic attack at the time. As such, the union did not meet its burden to demonstrate that the employer’s actions were discriminatory and the grievance was denied; however, in an unusual ruling the employer was still ordered to provide the grievor with 12 months’ pay in recognition of his past service.

Similarly, in Transit Windsor v. Amalgamated Transit Union, Local 616 (O’Brian Grievance),22 the grievor’s clinical depression was considered a mitigating factor after she was dismissed for making a threat against a supervisor but her condition did not absolve her completely of culpability.

Requiring Psychiatric Assessments of Workers Suspected of Mental Illness

When an employer suspects that an employee has a physical illness that prevents him or her from working safely, it may request that the employee obtain mental clearance prior to returning to work. Employers have the same power with respect to mental illness; however, to be justified in requiring a medical assessment of an employee’s mental health, the employer must demonstrate convincing evidence to support its belief that the employee poses a risk to workplace health and/or safety.

In the recent decision of Niagara Peninsula Energy Inc. and I.B.E.W. Loc. 636 (Gallardi),23 a worker was suspended without pay indefinitely after a number of incidents of alleged aggressive behaviour. The employer claimed the behaviour was contrary to its harassment policy. The removal of the suspension was conditional, in part, on the worker consenting to a psychiatric assessment respecting his ability to conduct himself at work in a safe, respectful and cooperative manner. The union grieved the suspension and the condition requiring the employee to obtain the psychiatric assessment. Arbitrator Dissanayake held that the employer must have reasonable and probable grounds to believe an employee represents a risk to health or safety to require a medical evaluation as a condition of work. As the impugned condition was found to be based on the employer’s belief that the grievor had an anger problem, and not that he was actually mentally ill, the employer was found not to have reasonable and probable grounds to require the assessment. The employer’s argument that recent jurisprudence required it to act to preserve workplace safety was rejected. Specifically, the Arbitrator held:

The mere fact that an employee has engaged in conduct that engages Bill 168 does not mean that the employer may require a psychiatric examination. The pre-Bill 168 jurisprudence still applies in that there has to be a balancing of the employer’s right and duty to maintain a safe workplace and the employee’s privacy rights. The test for achieving that balance continues to be the “reasonable and probable” test…24

Therefore, while recent amendments to health and safety legislation respecting workplace violence and harassment have increased the rights and responsibilities of employers in maintaining a safe and healthy work environment, these rights and responsibilities must be balanced with the protections under human rights legislation. An employer may only require that an employee undergo a psychiatric assessment, and receive clearance, prior to returning to work where there are reasonable and probable grounds to suspect that the employee suffers from a mental illness, and the illness creates an increased risk to workplace health and safety. Cogent evidence is required for the employer to meet this standard.

The Corporation of the City of Kingston and C.U.P.E., Loc. 109 25 is one of the few decisions which has been handed down that assists in the interpretation of the new requirements of the Occupational Health and Safety Act.26 The grievor in that case was not diagnosed with a mental illness but she had struggled with issues of anger management numerous times over the course of her 28 years of service. After several explosive outbursts directed at co-workers and supervisors, she was required to attend an employer-funded anger management program. However, just two days after completing the program, she threatened the life of a colleague. Relying on its obligations under the amendments to the OHSA the employer dismissed the grievor. Arbitrator Newman upheld the dismissal on the basis that threats to a person’s life, or suggestions of impending danger, must now be considered instances of workplace violence under the new definition of workplace violence in the statute.

The City of Kingston decision recognizes that employers are now required by law to take steps to protect workers from violence in the workplace. Adjudicators will consider this responsibility when assessing the appropriate level of discipline for an employee who has engaged in violence or the threat of violence in the workplace. This new, more strict, approach does not mean that employers may automatically dismiss any employee who engages in workplace violence; discipline must still be proportionate to the offence and implemented reasonably. However, adjudicators are now required to view instances of violence with the increased seriousness it deserves.

Intersection of Mental Illness, Violence, and the Workplace

As mentioned previously, employees who suffer from mental illness are infrequently dangerous; however, in instances where mental illness results in violence in the workplace employers are still required to fulfill their duty to accommodate. In the City of Kingston decision, there was no evidence that the grievor suffered from a mental illness. However, the Arbitrator implicitly recognized that, if there had been medical evidence of such a disability, the employer’s duty to accommodate would have been engaged. As with all instances of disability in the workplace, employers are only required to accommodate to the point of undue hardship.

Safety is a relevant consideration when determining if the duty to accommodate has been met. In making a determination with respect to balancing safety with the duty to accommodate to the point of undue hardship, employers should consider the magnitude of the safety risk that would be created, and the identity of the parties who would bear the risk.27 Adjudicators are more likely to find that a particular form of accommodation creates undue hardship where it may be demonstrated that there is a risk of significant injury, and where individuals other than the employee seeking accommodation bear part of the risk.

While the jurisprudence continues to develop, it appears that decision makers recognize that the obligation to accommodate a potentially violent employee who is suffering from a mental illness must be balanced with the right, and obligation, on employers to maintain a safe work environment. With the increased importance that has recently been placed on reducing incidents of workplace violence, a lower threshold has likely been created for employers to demonstrate that accommodating a violent employee with a mental disorder will lead to undue hardship. Nevertheless, in most circumstances employers will be found in contravention of their obligations under human rights legislation where they fail to inquire into the limitations created by an employee’s mental disorder or where they fail to investigate possible means of accommodation. Where an employee’s mental illness represents a real threat to co-workers, and the employee cannot be accommodated without creating undue hardship, the employer’s duty to accommodate will likely be met. In all cases, this threshold will be determined by the particular facts associated with the employee in question and the workplace.


Employers are obligated by human rights legislation to accommodate employees suffering from mental illness up to the point of undue hardship. Individuals suffering from mental illness are regular members of the workforce at all levels of Canadian society. When considering an issue with respect to an employee’s work performance, employers should be alive to the possibility that mental illness may be a factor. If the issue of mental health has been identified, employers must meet their obligation to accommodate the employee as they would for any other illness or disability.

Importantly, once it is determined that an employee suffers from a disability affecting his or her job performance, the employer must inquire into the nature of the complainant’s condition, his ability to perform his job duties, and his capabilities to perform alternative available work before determining that maintaining the employment relationship would cause undue hardship. Employees who suffer from a mental illness are required to facilitate this process by providing medical updates and feedback on the suitability of the means of accommodation, and information with respect to the type of work they can perform.

In the majority of cases, violence will not play any part in an employer’s considerations with respect to employees that suffer this form of disability. However, where mental illness and violence intersect, employers must balance their duties under statute to maintain a safe workplace with human rights obligations.

It is clear that nearly every workplace in Canada contains workers who struggle with mental health. To ensure a safe and productive workplace, employers, employees, and unions must work together to develop individual solutions that ensure disabled workers can contribute to the employer’s enterprise and enjoy a fulfilling career.

About the Authors

Sharon ChilcottSharon Chilcott is a partner at Filion Wakely Thorup Angeletti LLP, a firm specializing in the representation of management in all areas of employment law and labour relations. Sharon has 15 years of experience as an employment and labour litigator, in the courts, at arbitration, and before administrative tribunals, including federal and provincial labour boards. She represents and advises a wide range of federal and provincial sector employers in all aspects of labour relations and employment law, including labour board matters, employment standards, employee discipline and terminations, wrongful dismissal litigation, privacy issues, labour arbitration, human rights, and health and safety. Sharon is a graduate of York University (Glendon College) and the University of Toronto. She was called to the Ontario bar in 1997 and has been a member of the Law Society of England and Wales since 1998. Sharon has co-authored a number of publications for use by human resources professionals and lawyers on labour relations, employment standards and privacy law.

Laura KarabulutLaura Karabulut represents management in all aspects of labour and employment law, including labour board matters, employment standards, wrongful dismissal litigation, human rights and workplace safety and insurance board matters. Laura received a Bachelor of Arts degree in Political Science from York University in 2000, and Bachelor of Laws from the University of Western Ontario in 2004.

Laura has authored and contributed to a number of publications on labour relations and employment law matters. Recent publications include Public Health in the Workplace 2nd and 3rd ed., a CLV Special Report, and the Canadian Human Rights Act: Quick Reference Guide, 2009, 2010, 2011 and 2012 editions. Laura regularly speaks at conferences and seminars on various topics including public health emergencies in the workplace, including one organized by the Law Society of Upper Canada on H1N1 and the law, as well as seminars on workplace violence and harassment.

Laura is a member of the Law Society of Upper Canada, the Canadian Bar Association, the Ontario Bar Association, the Armenian Bar Association and the Advocates’ Society.



1 http://www.ontario.cmha.ca/fact_sheets.asp?cID=3222 accessed on May 11, 2012.

2 http://www.mentalhealthcommission.ca/English/Pages/OpeningMinds.aspx accessed on November 5, 2012.

3 [2000] O.J. No. 2689.

4 Ibid. at para. 89.

5 Crowley v. Liquor Control Board of Ontario, [2011] O.H.R.T.D. No. 1439.

6 British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] S.C.J. No. 46, at para. 54.

7 McGill University Health Centre (Montreal General Hospital) v. Syndicat des employes de l’Hopital general de Montreal [2007] 1 S.C.R. 161 (“McGill University“)at para. 22.

8 Hydro-Quebec v. Syndicat des employees de techniques professionnelles et de bureau d’Hydro-Quebec, section locale 2000, [2008] S.C.J. No. 44.

9 Ibid. at para. 16.

10 Lane v. ADGA Group Consultants Inc., [2007] O.H.R.T.D. No.34 (Mullan) (aff’d [2008] O.J. No. 3076 (Div. Crt.))

11 Ibid. at para. 106.

12 Hydro-Quebec, supra at para. 39.

13 [1992] 2 S.C.R. 970 (“Central Okanagan“).

14 Central Okanagan, supra.

15 McGill University, supra at para. 22.

16 Ibid.

17 New Brunswick Department of Public Safety and C.U.P.E., Loc. 1251 (2005),145 L.A.C. (4th) 324 (Bruce).

18 [2008] 2 S.C.R. 362.

19 [2005] O.L.A.A. No. 632 (Reilly).

20 Ibid. at para. 39.

21 [2011] O.L.A.A. No. 587 (Albertyn).

22 [2005] O.L.A.A. No. 632 (Reilly).

23 2012 CarswellOnt 4332 (Dissanayake).

24 Ibid. at para. 121.

25 2011 CanLII 50313.

26 Occupational Health and Safety Act, R.S.O. 1990, c O.1, (the “OHSA“).

27 Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.

Accommodating Disability in the wake of Keays v. Honda Canada

Employers may be relieved now that the Supreme Court of Canada has reversed steep punitive damages in a high-profile wrongful dismissal case involving a disabled worker. But accommodating the needs of employees who have disabilities – in particular depression – is not getting any easier, says Queen’s IRC Facilitator Anthony Griffin. Griffin is counsel for the Ontario Human Rights Commission, which intervened in Keays v. Honda Canada, a case that has been watched closely by Canadian employers for the past four years. (The views expressed are his and do not purport to be the views of the Commission.)

Is the status of employees with disabilities in the Canadian workplace being transformed?

Overwhelmingly, yes. Twenty years ago, if you looked at the percentage of people with disabilities who were unemployed, it was embarrassing. If you look now, it is saddening but not embarrassing.

A huge level of understanding has developed since disability was included in the Charter of Rights and Freedoms. Also, disability was included in the Human Rights Code in 1985. So until 1984, an employer in Ontario could say, ‘I’m not hiring you because you have a disability,’ and you’d have no recourse.In addition there is the duty to accommodate, which was added in 1988. The Supreme Court has wrestled with what that means, but now pretty much everybody understands that you have to really go to the mat in terms of protecting the rights of people with disabilities when it comes to employment.As a result of these factors, the status of employees with disabilities has been transformed significantly.

Why did the case of Keays versus Honda Canada generate so much interest among Canadian employers?

In June 2008, the Supreme Court decision reversed decisions that had been made in the lower courts relating to the highest punitive damage award ever against an employer in a wrongful-dismissal case – originally set at $500,000.

In 2000, Kevin Keays, an employee of Honda Canada who had chronic fatigue syndrome, was fired after he refused to attend a medical assessment with the company’s doctor. The trial judge, Mr. Justice John McIsaac of the Ontario Superior Court, found in 2005 that Honda wanted to fire Keays, so it wouldn’t have to accommodate his needs.

If that’s your conclusion, you have a sense that Honda did a really bad thing – and that’s why Justice McIsaac went way over to one side and ordered $500,000 in punitive damages, in addition to extending the wrongful dismissal period from the usual 15 months to 24 months in lieu of notice because of the abusive actions that Honda had taken.

This decision created shock waves among employers across the country.

Absolutely. Then the case went up on appeal, and in late 2006 the Ontario Court of Appeal upheld McIsaac’s conclusion that there was wrongful dismissal; it upheld the extension of the notice period from 15 to 24 months; and it said, yes, punitive damages should be awarded. However, it said the number should be reduced from $500,000 to $100,000 in damages.

Then Honda appealed to the Supreme Court of Canada. This case was remarkable: typically on appeal, cases do not get retried. Honda v. Keays got retried in the Court of Appeal, and it got retried in the Supreme Court of Canada. And the Supreme Court took a very different view of Honda’s actions.

So does this latest ruling mean employers may now breathe a collective sigh of relief?

In the Supreme Court, Honda didn’t challenge wrongful dismissal. One of the biggest things in this case is that the Supreme Court set aside the extension from 15 to 24 months in lieu of notice, and also concluded that punitive damages would not be awarded.

Employers are reassured to see that as a result of this decision, the original, high punitive damages are unlikely to become the norm.

They are also relieved because, before, all you had to prove was that the manner of dismissal was nasty. Now you have to prove that it caused mental distress. So employers for the past 10 years have faced so-called Wallace damage claims in almost every wrongful dismissal case – and I assure you, almost every plaintiff’s lawyer pleaded it. Now the plaintiff will have to come up with a doctor’s opinion relating the plaintiff’s mental anguish to the manner of dismissal.

How did the Supreme Court view Honda’s actions?

The court looked at it this way. Honda has an employee with chronic fatigue syndrome. Honda has been told to expect he’ll be off in the neighbourhood of, say, four times in a month. Then he’s away eight times a month. So Honda says, ‘We’d like you to come in and talk to one of our doctors,’ – and he refuses. If you look at it from that perspective, you might think Honda is trying to help manage his absenteeism, and didn’t do anything wrong.

Honda’s program that permitted people to be absent required them to produce a doctor’s note. The court said it’s okay to ask for medical validation of a leave of absence.

So has a new precedent been set, or are any issues still up in the air for managers?

You asked me whether employers can now breathe a sigh of collective relief. The answer is an overwhelming yes.

One of the biggest things in the Supreme Court decision is that it says it’s okay to ask for doctor’s notes when you are excusing absences from what would otherwise be progressive discipline.

So can employers ask someone to see the company doctor? Yes, but only when the information provided by the employee’s doctor is insufficient to let the employer answer this question: ‘Can this person do this job; can we modify this job so this person with this disability can do it.’ The Keays case was simple on one level. When he was there he could do his job and the only need associated with his disability was periodic absences. The tougher cases are the ones in which the questions above need to be answered.

So we all agree that an employer can manage absenteeism with progressive discipline. If you are away too often, we are going to have you in for a talk, give you a verbal warning, give you a written warning, suspend you, and if you keep not coming in regularly, we will fire you. That’s perfectly fine. That’s Column A: those are absences that can lead to discipline.

Column B has got to be absences that can’t lead to discipline. Those are absences caused by a disability. So employers are always trying to figure out, ‘How do I determine which absence goes in Column A and which into Column B?’

And now they can say, ‘The absences in Column B go there as long as they are supported by a doctor’s note, and won’t be subject to progressive discipline.’ This has certainly clarified things quite a bit.

What is the remaining difficulty?

Part of the difficulty when you have someone like Mr. Keays, who has chronic fatigue syndrome – and it’s going to be similar if someone has fibromyalgia or depression – is that the absences are essentially self-reporting.

Say Mr. Keays wakes up one day and says, ‘I feel so rotten today I can’t drag myself in to work,’ so he has to go to his doctor. The doctor knows he has CFS, he goes in and says, ‘I feel so dragged out today I can’t go to work,’ so the doctor basically says, ‘He’s not going to work today as he has CFS.’

That’s not really much more information than Keays had to begin with. What is the doctor adding to it? Similarly, if someone has depression and says, ‘I feel so down today I can’t go to work,’ and he or she goes to get a doctor’s note, what does it add for the doctor to say, ‘He’s feeling so down he can’t go to work’?

Are there better alternatives employers can adopt for monitoring absences?

The minority in the Supreme Court referred to this. They wrote: ‘While monitoring employee absences certainly remains a valid objective, this can be done in a variety of ways. Requiring a doctor’s note for each absence is only one alternative. Others include seeking semi-regular updates from an employee’s physician or requiring doctors’ notes only when the number of absences exceeds the expected number within a particular time frame.’

So there are some disabilities – and I think CFS, depression and fibromyalgia fall into the category – for which there are other ways for employers besides saying ‘You must get a note’ every time.

When you think about it in context, Mr. Keays worked at Honda in Alliston, and lived in a rural area an hour and a half or two hours north of Toronto. Access to doctors is just presumed in all of this. If you phone your doctor and say, ‘I’d like to come in and see you,’ and they say, ‘What’s it for, are you critically injured?’ and you say, ‘No, I need a note,’ you probably aren’t going to get an appointment today. And so you then have to take another day off to go see the doctor. And many people don’t have regular doctors.

So I can understand what the employer is doing: the employer is delegating responsibility over to the medical profession – ‘You tell me he couldn’t come in because of his depression and I’ll say ok.’

But we have to start looking at this from a societal level. Is that a good use of our medical resources, our physicians’ time? And what kind of obligation is this putting on employees – which is going to be onerous? None of that is reflected in the court’s thinking, as they were only looking at the one case.

However, with this decision employers can breathe a collective sigh of relief because if they have a plan that says get a doctor’s note for your absences that are associated with your disability and then we won’t count those absences against you – this decision says that’s okay.

Where do employers most need to improve how they handle accommodation?

Do you know what’s the number one cause of lost time from work in North America? It’s depression. With this employers do a terrible job, and that’s because they have viewed depression as an on/off switch. We’ll give you two weeks away and you’ll be fine. You’ll come back and we’ll throw you right back into the deep end.

This is going to be the most difficult thing for employers over the coming decade, because people who have depression are often not the same as they used to be. And if you give employees two weeks off and then give them the same kind of work they had before, it’s not going to workout.

They’re going to wind up going on long-term disability, and ultimately, on the Ontario Disability Support Program. Employers have this template that says, ‘We expect you to do this amount of work, this is our standard.’ They have to give different standards to employees who are depressed, and they don’t.

This reflects the difficulty that accommodation means you have to treat people differently. That’s always been a problem for employers, for unions, who like to have a methodology where everyone is treated the same way. The accommodation analysis turns that on its head.

New Labour Law Rule: Think Global, Act Local

In a case that pitted B.C. health unions against contentious labour legislation, the Supreme Court of Canada ruled last fall that collective bargaining is protected by the Charter of Rights and Freedoms. The decision significantly changes the lives of many Canadian labour law practitioners and policy-makers, says Kevin Banks, assistant professor in Queen’s University Faculty of Law.

Kevin practised labour and employment law for several years, and worked in senior posts in the federal public service—most recently as Director General, Labour Policy and Workplace Information. In this article, he talks about the decision and describes how lessons learned in international law can provide practitioners with guidance on constitutionally protected collective bargaining rights.

What did the Supreme Court of Canada decide, and what happens next?

The court gave the freedom to bargain collectively constitutional protection under section 2(d) of the Charter of Rights and Freedoms. That section protects freedom of association for all Canadians. For practitioners, international labour law can provide guidance in determining which aspects of our collective bargaining system should be treated as fundamental to freedom of association, which aspects represent policy choices among a range of viable alternative ways of protecting that freedom, and which ones should fall outside of the reach of constitutional protection.

Why was the Supreme Court’s decision such a surprise?

The Supreme Court reversed itself completely on the issue of whether collective bargaining was constitutionally protected or not, and did so within a relatively short time span—20 years in constitutional law is not a long time.

The court had previously said that collective bargaining was not constitutionally protected by section 2(d) of the Charter of Rights and Freedoms, which protects freedom of association, and had said so quite explicitly. In a trilogy of cases dealing with the right to strike in decided 1987, the court laid out an understanding of freedom of association clearly suggesting that collective bargaining was not protected under section 2(d). And the court specifically affirmed that this was the case about three years later in the case of the Professional Institute of the Public Service of Canada vs. Northwest Territories.

Now with B.C. Health, the court has reversed its line of thinking, and ruled that providing meaningful protection of freedom of association to those who choose to join a trade union includes protecting the freedom to bargain collectively.

What explains this remarkable reversal?

The judgment in B.C. Health lays out a completely different way of looking at the importance of collective bargaining in Canadian society.

How the court gets to this point is an interesting story. It essentially reverses its own previous understanding of Canadian labour history. The court says that collective bargaining is not properly characterized as a set of ‘modern rights’ that were simply created by legislation—which was its previous understanding. It says that this view was actually inconsistent with labour relations history in Canada, and that if you look back through that history, collective bargaining has been of fundamental importance to working people, and that’s why it was eventually incorporated into legislation. The court’s view now is that the statutes didn’t create the right; they simply afforded it some protection.

The court also rethinks what freedom of association means, and says that it must protect activities that can only really be performed by a collectivity. In the trilogy of cases I mentioned earlier, the court had said that the Charter did not protect an activity just because it was essential to giving an organization meaningful existence.

The majority on the court had been leery of protecting particular activities of associations because it did not see any basis for distinguishing between the activities of different associations. So it simply said that section 2(d) protected the freedom to establish an association, and any activities of associations that were already protected somewhere else in the Constitution, like freedom of expression. This left legislatures free to prohibit certain activities that really could only be carried out in association.

The court’s approach was criticized as formalistic because it treated all associations as essentially the same—a group of golfers coming together for a match had the same constitutional importance as a trade union seeking to bargain collectively. This, critics said, ignored the importance to Canadians and Canadian society of employees’ joining together to bargain collectively to improve their conditions of work.

What the court says in B.C. Health is that we have to move away from a formalistic equivalence between different kinds of associations. A book club is not the same thing as a trade union, and we need to look at these organizations in their social and historical context. You have to inquire into the significance of collective bargaining as a form of association on its own terms. That was the importance of the historical review.

The court also looks to the international legal context to understand the significance of collective bargaining in Canada. It finds that international law can help in interpreting Charter guarantees, and that a number of different conventions to which Canada is a party recognize the right of members of a union to engage in collective bargaining as part of freedom of association. So international law was also an important influence in the B.C. Health decision.

What key issues do Canadian practitioners need to understand about the judgment?

The court’s decision means that some aspects of our collective bargaining system are going to be given constitutional protection. But it is clear that not all aspects will. Practitioners are already being called upon to assess and present arguments on where the lines ought to be drawn.

The court provides some very general guidance on this issue. It says that the legislature must not substantially interfere with the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith. But that leaves open a number of major questions. What is meaningful influence? Does it include the ability to exert economic pressure, say by taking strike action? And what is substantial interference?

Unfortunately, the judgment is a bit vague with respect to both of these concepts, and this already giving rise to further litigation. Before the overall impact of the decision becomes clear, we’re going to have a number of other court decisions to begin to clarify some of these issues.

What are the implications for labour and employment law practitioners?

There are a number of direct and concrete implications. First, legislation that restricts the scope of issues that can be bargained collectively may be subject to challenge. This will have potential implications for public sector labour relations legislation in particular, which often does restrict issues that can be bargained collectively.

The decision also raises directly the question of whether the right to strike is protected. Other aspects of labour relations law that might be affected include legislation that purports to redefine the scope of bargaining units: can the government redraw bargaining units in any way that it sees fit, or will that amount to substantial interference?

Another way to look at it is through the lens of what the Constitution requires of government as an employer directly regulated by the Charter. The government needs to be careful about what sorts of methods of self-help or avoidance of collective bargaining it engages in that capacity.

What are practitioners going to be grappling with now?

In very concrete terms, they are going to be grappling with whether the kinds of laws and other government actions that I just mentioned substantially interfere with the capacity of employees to exert meaningful influence through collective bargaining. This means they will be advising and making arguments on whether such measures interfere with the capacity of employees and their unions to deal with issues of importance to them in a way that undermines good faith bargaining.

Over time, the case law that practitioners are involved in creating will sort out which aspects of our collective bargaining system should be treated as fundamental to freedom of association, which aspects represent policy choices among a range of viable alternative ways of protecting that freedom, and which ones should fall outside of the reach of constitutional protection.

No real attempt to separate the fundamental provisions from the ad hoc compromises that are inevitably part of the legislative process has been undertaken before. Now we’re going to be engaged in a debate and discussion about the core elements that really have to be protected constitutionally. This is an entirely new kind of legal analysis for us: it’s is an exercise we have never really engaged in within Canadian domestic labour law.

Where can practitioners look for guidance?

The court articulates a couple of propositions in B.C. Health that make international labour law directly relevant to deciding the scope of Charter protection.

The first is that, as the court says, the Charter should be presumed to provide at least as great a level of protection as was found in the international human rights document that Canada has ratified.

The second is that international labour obligations reflect principles that Canada has committed itself to uphold. And such commitments to principle along with the current state of international thought on them can be persuasive sources for interpreting the scope of Charter rights.

So we can draw some guidance from the body of international labour law that has been developed over the years as we begin to articulate what’s fundamental in Canada and should be constitutionalized.

After all, the international labour law community has had to make sense of very broad protections like freedom of association in the context of many different legal histories and cultures across many different countries. It has created a relatively small set of binding norms that say: “This is what any meaningful conception of freedom of association needs to include in the way of protections for collective bargaining.” It has also created a lot of persuasive doctrines about what kinds of alternatives are acceptable ways of protecting the freedom to bargain collectively.

For example, various committees of the International Labour Organization (ILO) have elaborated detailed doctrines, with supporting arguments, on when binding arbitration might be substituted for the right to strike. These doctrines often enjoy the support of management, government and labour representatives at the international level. So they might well have persuasive influence here in Canada as well.

If I’m right that the Supreme Court has made appeals to international labour law a lot more authoritative and relevant, then practitioners are going to need to get to know more about it: what sources of international labour law are binding, which ones are simply persuasive, and what makes them persuasive or not.

The ILO is probably the most important source for international labour law. There are also two important UN covenants: the International Covenant on Civil and Political Rights, and the International Covenant on Economic Social and Cultural Rights. Canada has ratified both of those.

International Labour Organization: http://www.ilo.org/global/lang–en/index.htm

The Visible Minority Experience of Marginalization in the Canadian Labour Force – A Proposal to the Ontario Government to Reintroduce Employment Equity Legislation in Ontario

Visible minorities still face barriers that impede their success in the workforce. The most powerful force preventing them from entering the labour market and climbing the corporate ladder is systemic discrimination. This paper seeks to shed some light on the damaging effects of systemic discrimination through the eyes of visible minorities. It contends that the existence of federal employment equity legislation has improved the representation of visible minorities in the labour force. Therefore, the author proposes that similar legislation be reintroduced in Ontario in an effort to do the same.

The New Economy and the Demise of Industrial Citizenship

The Don Wood Lecture in Industrial Relations was established by friends of W. Donald Wood to honour his outstanding contribution to Canadian industrial relations. Dr Wood was Director of the Industrial Relations Centre from 1960 to 1985, and the first Director of the School of Industrial Relations, established in 1983. The lecture brings to Queen’s University distinguished individuals who have made an important contribution to industrial relations in Canada or other countries.

In his lecture, H.W. Arthurs, University Professor and President Emeritus, York University, talks about industrial citizenship and how it is influenced by the dominant forces of the new economy.

Overview of Labour Law in Canada

George Adams presented this paper at the 1994 US-Mexico-Canada Conference on Labour Law and Industrial Relations in Washington, DC. According to Adams, Canada’s participation in the North American Agreement on Labour Cooperation is important because it encourages us to explore our country’s labour laws at both the federal and provincial levels so that we are better equipped to confront the issues we jointly face in a global economic environment.

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