eLaw

eLaw - Labour and Employment Law Update | June 2017 - No. 28

The Law Society of Manitoba
Professional Education and Competence

eLaw Labour and Employment Law Update

June 2017

In This Issue

Managing the Risks in Safety Sensitive Workplaces: SCC
Ultimate Punishment for Single Breach of Professional Standard Justified: MBQB
Specific Warning of Dismissal Not Necessary: MBQB
Legislative Update
Employment and Labour Law Reforms in Ontario and Alberta
Guide to Accommodating Substance Dependence: CHRC
Recommended Reading
Summer CPD Replays: LSM
MBA Program

Managing the Risks in Safety Sensitive Workplaces: SCC

In Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the Supreme Court upheld an Alberta Human Rights Tribunal decision that a coal mine employee (who claimed accommodation for a cocaine addiction after testing positive for cocaine use following a workplace accident) was dismissed for breaching his employer’s drug addiction disclosure policy and not because of the cocaine addiction itself. The employer’s Alcohol, Illegal Drugs & Medication Policy contained a “no free accident” rule requiring employees to disclose addictions before incidents or face termination for not doing so. The aim of the policy, said the court, “was to ensure safety by encouraging employees with substance abuse problems to come forward and obtain treatment before their problems compromised safety.” The majority found no basis to interfere with the Tribunal’s conclusion that the employee had been dismissed for breach of the policy. Since a prima facie case of discrimination had not been raised, it was unnecessary to consider whether the employee had been reasonably accommodated. These articles identify the key takeaways for employers and employees:

SCC upholds employer's "no free accident" alcohol and drug policy: Stewart v Elk Valley - Dentons

Supreme Court of Canada Rules No Discrimination for Termination of Drug Addicted Employee - Blakes

No free accidents for drug users in the workplace – Stikeman Elliott

Ultimate Punishment for Single Breach of Professional Standard Justified: MBQB

Seven Oakes General Hospital was “more than justified” in terminating the employment of a nurse (and Patient Care Team Manager) who removed the oxygen supply from an oxygen-dependent, dying patient without a doctor’s order to do so and departed without assessing, observing or charting the effects, according to the court in Franceschetti v. Seven Oaks General Hospital, 2017 MBQB 99. The court found the nurse’s actions to be an undisputed failure to adhere to the professional standards required of a registered nurse and a breach of the contractual relationship with her employer such that termination was the hospital’s only option.

Specific Warning of Dismissal Not Necessary: MBQB

In Hart v. Parrish & Heimbecker, Limited, 2017 MBQB 68, the court dismissed the wrongful dismissal claim of a merchandising manager whose employment was terminated after corrective action to address prior complaints of inappropriate conduct proved unsuccessful when a fourth altercation was reported. The employee argued that the employer’s failure to warn him that not correcting his behaviour or conduct would result in termination was fatal to the employer’s case, but the court found that such specific warning is not necessary, especially “where the conduct has been found to be unacceptable or inappropriate in the past and reasonable steps have been taken by way of disciplinary action to encourage the employee to change their behaviour and conduct in the workplace.” (para. 92) The sanction of dismissal was reasonable, said the court, considering the seriousness of the employee’s misconduct in violating the company’s Workplace Violence and Harassment Policy and the fact that it continued notwithstanding efforts by the employer to facilitate a behaviour change.

Legislative Update

Federal

Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, received royal assent June 19, 2017. Other than ss. 12 and 13, it came into force three days after receiving royal assent. It repeals the amendments previously brought by the former government in bills C-525 and C-377 (making union certification more difficult and requiring unions to track their spending, among other things).

C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures, received royal assent June 19, 2017. Among other things, it amends the Public Service Labour Relations Act to provide for a labour relations regime for members of the Royal Canadian Mounted Police and reservists.

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, received royal assent and came into force on June 19, 2017. It amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and to the Criminal Code to extend the protection against hate propaganda to any section of the public that is distinguished by gender identity or expression and to affect sentencing on such crimes. For further information see the legislative summary, departmental information, the Slaw article Gender Identity and Gender Expression Protection Under the Law and the blog post Federal Government Adds “Gender Identity” And “Gender Expression” to Canadian Human Rights Act.

S-201, the Genetic Non-Discrimination Act, received royal assent and came into force May 4, 2017. It prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual. Specifically it amends the Canada Labour Code to protect employees from being required to undergo or to disclose the results of a genetic test, and provides employees with other protections related to genetic testing and test results. It also amends the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics. The Privacy Act and the Personal Information Protection and Electronic Documents Act are also amended to expressly include information derived from genetic testing as “personal information.”

Provincial

These employment and labour related bills are currently before the legislature:

Bill 11, The Community Child Care Standards Amendment Act (Staff Qualifications and Training), received royal assent on June 2, 2017 and will come into force on proclamation. As detailed in the explanatory note, it establishes a new committee to advise on matters related to staff qualifications.

Bill 12, The Teachers’ Pensions Amendment Act, received royal assent and came into force June 2, 2017. Its main purpose is to update provisions of The Teachers' Pensions Act for consistency with changes to The Pension Benefits Act that came into force in 2010. The explanatory note provides more detail.

Bill 13, The Regulated Health Professions Amendment Act, received royal assent and came into force June 2, 2017. It amends The Regulated Health Professions Act to allow the minister to exempt a health profession from the statutory prohibition on the online publication of certain health information about disciplined members. See the explanatory note for more information.

Bill 28, The Public Services Sustainability Act, received royal assent on June 2, 2017 and will come into force on proclamation. It establishes a four-year sustainability period during which the compensation for public sector employees, and the fee payments to physicians and other health professionals, may not be increased except by the percentages permitted by the bill.

Bill 29, The Health Sector Bargaining Unit Review Act, received royal assent on June 2, 2017 and will come into force on proclamation. It deals with bargaining units and collective bargaining in Manitoba's health sector.

Bill 33, The Minimum Wage Indexation Act (Employment Standards Code Amended), received royal assent and came into force on June 2, 2017. It amends The Employment Standards Code to provide that the minimum wage is adjusted on October 1 of each year to reflect changes in the Manitoba Consumer Price Index.

Employment and Labour Law Reforms in Ontario and Alberta

Both Ontario and Alberta are in the process of enacting major reforms to their labour and employment laws. The Ontario Government released the Final Report of the Changing Workplaces Review on May 24, 2017. The 419-page report is “the first independent report in Canada to consider, as a unified exercise, the need for specific legislative changes to two separate but related pieces of workplace legislation, the Employment Standards Act, 2000 and the Labour Relations Act.” Summaries of the report can be found in articles by Slaw, Miller Thomson, Legal Feeds, Torkin Manes, and Blakes. In response, the Ontario government introduced Bill 148, Fair Workplaces, Better Jobs Act, 2017 on June 1, 2017. As noted in these Slaw summaries of the proposed employment standards and labour relations reforms, not all of the report recommendations have been addressed.

Alberta has also passed new workplace legislation. Bill 17, Fair and Family-friendly Workplaces Act, was introduced May 24, 2017, received royal assent on June 7, 2017, and will come into force (in part) on January 1, 2018. The changes are summarised in this Slaw post and in the Gowling article Alberta's new employer-unfriendly Workplaces Act.

Guide to Accommodating Substance Dependence: CHRC

The Canadian Human Rights Commission recently published Impaired at Work: A Guide to Accommodating Substance Dependence. The stated purpose of the guide is to help federally-regulated employers address substance dependence in the workplace in a way that is in harmony with human rights legislation. It outlines the rights and responsibilities of the employee, job applicants, the employer, unions and/or employee representatives. Five steps to accommodating substance dependence are identified, including specifics on such topics as seeking independent medical evaluations and developing accommodation and treatment plans. The report also addresses how far accommodation has to go and looks at key considerations regarding drug and alcohol testing.