The Pendulum is Nearing its Center: Judicial Decision Making and the Workplace

 

HR AID Employment Solutions

Akiva Stern is Sole Proprietor of HR AID. HR AID is an employment consulting company devoted to helping employees and small business owners easily access employment and labour information as well as helping to resolve their employment issues.

 

        Historically labour law has always moved like a pendulum. Early industrial developments gave an inordinate amount of power and control to employers. In turn and over time, unions and government regulation developed to balance out that power dynamic and counteract any imbalance, which may have been present. However, these regulations may have gone too far in the opposite direction, especially with some of the cases decided in the passed decade over workplace accommodation. Recent developments have made me take a second look at a few particular points. Let’s take a look.

 

The Cautionary Tale: How far down the Rabbit hole…

 

Nurse Jackie worked at Addict-and-How Hospital. She was a fine nurse, very good indeed. However, she had a minor habit of stealing drugs from work. This is Nurse Jackie’s third time being fired for stealing drugs at work. Even though Nurse Jackie works in an environment that exposes her to drugs in her every day activities, the arbitrator who heard Jackie’s case reinstated her. He determined that her drug thievery was a result of an addiction, which must be accommodated for by the employer unless the employer can prove undue hardship (See previous post on Human Rights Law). The Hospital did not do enough to attempt to help her seek help for her addiction giving them partial responsibility. Nurse Jackie went back to work the next day, but for some reason none of the patients got their afternoon pill…

 

*Facts taken loosely from case. Names were changed.

 

What does this mean for Judicial Decision making?

 

When we look at the law pertaining to accommodation, we know that employers have varied defenses to accommodating a protected right. This could be through the use of a Bona Fide Occupational Requirement or proving undue hardship if they attempted to accommodate. It’s entirely possible that an employer could have put Nurse Jackie into a more administrative role. As far as I’m concerned, it seems a little too far to one side of the decision making pendulum to accommodate an issue so starkly in conflict with ones workplace duties and responsibilities.

            Legislative guards related to accommodation have been so strongly imposed; I wondered how long it would take for the pendulum to swing the other way or in the best-case scenario, slow down and find its motionless center. Two particular developments shed some light on this balance:

 

Health & Safety

 

Within the many changes Bill C-4 sought to address, I found the following particularly interesting. The Bill changed the definition of “danger” to “imminent or serious threat to the life or health of a person”. It also got rid of the descriptive language of a “potential hazard”.  Bill C-4 removes the idea that workers deserve protection from activities or conditions that could cause them danger in the future. To a random onlooker this may not seem trivial but it is a significant change.

In a way it kind of makes sense. Immediate danger should stop you from working because immediacy doesn’t allow for equitable recourse. You simply have to think on your feet to protect yourself. Conversely, in the event that no real danger is present, avenues for recourse and address are available to the worker.

Perhaps this oversimplifies the changes. The concerning piece is the inability to claim long-term issues that may arise. But I remind you the topic at hand is that of refusal to work. I agree that purely refusing to work should be isolated to immediate danger. That doesn’t mean I don’t think there should be some avenue of recourse or resolution for long-term health claims, I just don’t think it should fall under the umbrella of an employee decided work refusal. The repercussions and concerns of employee’s power to create work stoppages is a genuine issue. Specifically refusal to work needs to be outlined in a way that protects the employee while avoiding employers being taken advantage of.

 

Accommodation under Family Status

 

A recent article in Lexpert* made an interesting case for the changing tide regarding Accommodation of family status:

 

‘In an August 2014 Arbitration ruling in the grievance between the        University of Montreal, an employee named Fernand Landry requested a         flexible schedule to meet her family obligations arising out of a joint custody             agreement. The employer refused and the arbitrator found in its favour. The             ruling said that the employee had to show – but did not – that she tried to use other means to fulfill her childcare duties under the custody agreement.’

 

*Duty to Accommodate, by Sheldon Gordon

 

As noted above, accommodation is a powerful tool to protect workers rights. It also has, at times, placed a large burden on the employer to accommodate. While Arbitration decisions technically are not really binding in any way it is an interesting glimpse into the future of judicial decision-making.

I don’t interpret this case as a free pass for employers. What I see is an understanding that everyone really has to try as hard as they can to make the situation work. I don’t believe we should necessarily default to employer obligations if there is something the employee can do to help mitigate the situation.

 

Future Outlook

 

For the most part, principles like Duty to Accommodate and Health & Safety provisions reign strong to protect the employee. As more decisions come out, I see the pendulum swinging back into balance.

Simply put, the legal system should not default to employer obligations because they are the power party. This mindset allows us to remove obligations of employees to try and resolve issues. Similar to Health and Safety committees, I simply ask that we have a mutually responsible system where everyone does what they can to solve a workplace issue. We should not be in favour of one party or the other by default, rather decide by who attempted to help.

 

What do you think about the recent developments in employee related matters? Comment Below!

 

 

*For your particular area, refer to your specific provincial government website.

**Special considerations may affect relationship status, such as federally regulated workers.

***The above is Information regarding Labour and Employment Issues and is not to be considered advice or instructions pertaining to individual or specific employment situations.

 

About the Author:

Akiva Stern

Akiva Stern is Sole Proprietor of HR AID. HR AID is an employment consulting company devoted to helping employees and small business owners easily access employment and labour information as well as helping to resolve their employment issues. You can visit them at HRAid.net