International Labor & Employment Law Committee Newsletter

Issue: November 2012

Editor: Tim Darby | Africa and Middle East Editor: Karen Seigel | Asia and Oceania Editor: Ute Krudewagen | Canada Editor: Gilles Touchette | European Editor: Paul Callaghan | Latin America Editor: Juan Carlos Varela | Law Student Editor: Irene Lehne, Earle Mack School of Law at Drexel University

Canada

Supreme Court to Review Decision Upholding Random Alcohol Testing

Lisa Cabel, Borden Ladner Gervais LLP, Toronto, Canada

A recent ruling upholding random alcohol testing in 'safety sensitive' positions, Communications Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd,1 decided by the New Brunswick Court of Appeal, is scheduled to be reviewed by the Supreme Court December 7, 2012.

While several previous court decisions in Canada have held that rules implementing random alcohol testing must be reasonable, few have gone the extra step to describe the criteria under which the reasonability of a particular rule would be assessed. Having canvassed the previous case law and analyzed the existing situation, the Court of Appeal in Irving identified the following question as being determinative as to whether the implementation of random alcohol testing is reasonable: Does the workplace in question fall within the "highly" or "inherently" dangerous category?

The Court of Appeal considered various other workplaces which had been designated as inherently dangerous. The Court recognized that if railway companies that transport dangerous chemicals have been classified as inherently dangerous, then it stands to reason that the company that uses those materials should also be so classified. Furthermore, the loading and unloading of those chemicals on and off the trains is the responsibility of Irving employees. The Court of Appeal also noted that the Irving facility used a $350 million pressure boiler with a high potential for explosion. The Court of Appeal therefore upheld the rule implementing random alcohol testing.

The Irving case arose after Irving Pulp and Paper implemented a mandatory, random and without-cause alcohol testing program February 01, 2006, for employees holding 'safety sensitive' positions. On March 13, 2006, Mr. Day, an employee, was subjected to the test. Despite registering a blood-alcohol level of 0.0%, he took issue with having been subjected to the random test and challenged Irving Pulp and Paper's authority to administer mandatory alcohol testing.

Broadly speaking, provincial human rights codes prohibit discrimination based on a physical or mental disability. Since alcohol dependency is considered a disability in Canada, employers must be careful when implementing alcohol-testing policies to avoid infringing on their employees' rights. In order to implement alcohol testing at all (i.e. random or for cause), the position for which alcohol testing is being proposed must meet the following two criteria:

  1. The imposed requirements for the job are a bona fide occupational requirement; or
  2. That an employee in the position will be unable to fulfill the essential duties of the position as a result of the disability.

Should these requirements not be met, any alcohol testing will be found to be discriminatory under provincial human rights codes.

The appeal in Irving is an important development for the law in Canada as decisions from the Supreme Court of Canada are binding on all provinces. Leave to appeal to the Supreme Court must be sought and granted. There are three grounds upon which leave to appeal may be granted:

  1. where the proposed appeal involves a question of public importance, i.e. the case must raise an issue that goes beyond the immediate interest of the parties to the case;
  2. where the proposed appeal involves an important question of law or of mixed law and fact; or
  3. for any other reason of such a nature or significance as to warrant a decision by the Court.

Although there are no written reasons relating to the Court's decision to grant the appeal, in practice, a successful leave application must convince a panel of three Supreme Court of Canada judges that the decision of the court below may well have been wrong, and that the issues it raises are of public and national importance, for example by showing that appellate courts across the country have taken varying approaches on an important legal issue. Labour, employment and human rights lawyers across Canada will be on the lookout for the Court's decision in this case.

12011 NBCA 58.

First Decision Confirming That Employers have a Duty to Accommodate an Employee's Eldercare Responsibilities Is Issued under Ontario Human Rights Code

Shannon L. Robinson, Norton Rose Canada LLP

A recent decision1 from the Ontario Human Rights Tribunal (the Tribunal) confirms the duty to accommodate an employee's eldercare responsibilities under provincial human rights legislation. Under Canadian law, human rights protection against discrimination on the grounds of family status has long recognized an obligation to accommodate an employee's childcare responsibilities. This case, however, is the first to confirm that eldercare responsibilities are also covered. The Tribunal's decision establishes that an employer has a duty to accommodate an employee's truly required caregiving responsibilities, but not mere preferences.

In its decision, after considering the various conflicting tests,2 the Tribunal adopted its own test for establishing prima facie discrimination on the basis of family status. Under the new test, applicants must establish that the employer's requirement had an adverse impact on them due to required caregiving responsibilities. However, the Tribunal specified that discrimination will not be established where applicants choose or prefer to provide care themselves.

In the particular circumstances of the case, the Tribunal concluded that most of the Applicant's absences stemmed from his care duties for his elderly mother, and that this was a requirement, not a preference, on the part of the Applicant. The Tribunal found that the employer's strict attendance requirement had an adverse impact on him because of his care responsibilities. The Tribunal also found that the employer had not met its procedural and substantial obligations under the duty to accommodate because it failed to engage in a discussion with the Applicant about his caregiving needs.

The Tribunal ordered the employer to pay $15,000 in damages for injury to dignity, feelings, and self-respect.

Background

The Applicant, Mr. Devaney, was an architect with ZRV Holdings Limited (ZRV) for 27 years, until his employment was terminated in January 2009. Mr. Devaney performed extremely well; however, during the latter part of 2007, he was often absent from the office. The absences increased throughout 2008 and ZRV repeatedly warned Mr. Devaney that he must attend during core hours. During that period, Mr. Devaney was responsible for a major construction project. He admitted to being out of the office but he claimed to still work more than full-time hours. He completed his work remotely and kept in touch with the client and staff using technology. This allowed him to care for his elderly mother. Her health declined drastically during that same period until she was eventually placed in care at the end of 2008. Although ZRV knew that the Applicant was responsible for his mother's care, it remained dissatisfied with his absences and claimed that they affected team morale. Finally, ZRV told Mr. Devaney that failure to attend during core hours would lead to dismissal. Despite the warnings, his attendance did not improve. As a result, ZRV terminated Mr. Devaney's employment in early January 2009. At no time was accommodation discussed.

Precedent

Prior to the decision there were two competing tests in Canadian law.

  • The stricter test was developed by the British Columbia Court of Appeal in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society.3 This test requires that a change in a condition of employment imposed by the employer create a serious interference with a substantial parental duty or obligation. A duty to accommodate arises only where this test is met.
  • The Federal Court and the Canadian Human Rights Commission explicitly rejected the stricter test in favour of a broader one. They held that the duty to accommodate arises any time a parental obligation prevents an employee from equal participation in the workforce.4

Implications

The Tribunal's decision does shed some light on the test that the Tribunal will now apply in cases involving alleged discrimination on the grounds of family status. However, the case law remains unsettled and is likely to continue to be an issue of debate. This decision highlights the important roles that both employers and employees play in the accommodation process. Employees have an obligation to identify their need for accommodation of caregiver responsibilities. At the same time, employers should be mindful of possible situations of discrimination and initiate a discussion where appropriate. Furthermore, both the employer and the employee must engage in a meaningful discussion with regard to accommodation. It is important to remember that each case should be assessed on its own merits and that both parties must work together. Given the aging population, it is likely that requests for accommodation on this ground will increase.

1Devaney v. ZRV Holdings Limited, 2012 HRTO 1590.

2See "Precedent" below.

32004 BCCA 260

4Johnstone v. Canada (Attorney General), 2007 FC 36; Seeley v. Canadian National Railway, 2010 CHRT 23; Whyte v. Canadian National Railway, 2010 CHRT 22; and Richards v. Canadian National Railway, 2010 CHRT 24).

 

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