Three Rights Every Employee Should Know Regarding Health and Safety

| August 4th, 2017 | 1 Comment »

Health and Safety in the workplace is seen as a joint responsibility between the employer and employees. Glancing over the Occupational Health and Safety Act, for example, clearly defines duties for both employees and employers. Essentially, each party is required to remain vigilant: both play key roles in noticing and reporting unsafe working conditions. There are three rights that employees should know and exercise in order to remain in control of their health and safety in the workplace. These rights are:

  1. The Right to Know

There are certain standards that employees need to be provided in order to be aware and competent in workplace health and safety. This includes the right to attain safety information, training, supervision from competent individuals, and adequate instructions. For instance, employees are to be made aware of any hazardous material or substances within the workplace, and training for proper handling and use of protective gear.

  1. The Right to Refuse Unsafe Work

Under all jurisdictions in Canada, workers are permitted the right to refuse work when conditions are dangerous or may reasonably cause harm. This includes the condition of any equipment required for use, the physical condition of the workplace itself (building structure, lose wiring, etc), or the task itself providing the danger is not inherent within the job (ie. police, firefighting, etc).

Employees must report any danger and refusal to their immediate supervisor or manager, whichever present. This will require an initial investigation by the manager/supervisor to correct the danger. If the worker is not satisfied with the remedies implemented, then an investigation that involves a representative from the health and safety committee or the workplace health and safety representative (whichever applicable) will follow in the presence of the worker. If the worker still remains unsatisfied with the results of the investigation, a minister from the government may be contracted and an independent investigation will follow.

  1. The Right to Participate

Employers are required to implement joint health and safety committees with representatives for both the employer and employees on the committee. Depending on the number of workers at the workplace, employers may be required to have one workplace representative or a committee of 2 – 4 representatives. The committees are to identify any dangerous or hazardous workplace conditions, make recommendation for improvement of health and safety and also handle employee concerns and/or complaints. Representatives also have the right to participate in any health and safety investigations, establish training or educational programs and gather any information from the employer pertaining to safety.

Overall, these are the basic three rights any employee should be aware. These rights grant employees the knowledge and power to take responsibility of their own health and safety, which fulfils a very important objective and purpose of health and safety legislation.

Random Alcohol and Drug Testing Policy: When is this discrimination in Safety Sensitive Workplaces

| August 4th, 2017 | No Comments »

Under human rights law, individuals that suffer from addiction are protected under prohibited grounds of discrimination. For this reason, any policy that has an adverse effect on employees with addictions will have to be a bona fide occupational requirement (BFOR).  This means that employees found in violation of such policies will have to be accommodated for up to the point of undue hardship.

For a job requirement or workplace policy to qualify as a BFOR, it first has to rationally connect to the performance of the job. For random and unannounced drug/alcohol testing in a safety sensitive environment, the goal would be that the employees performing the job are doing so under conditions that do not compromise safety. The condition of sobriety definitely rationally connects to the objective of workplace safety. Secondly, the policy has to be implemented with honesty and good faith. In this instance, it is reasonable to believe that random testing is a tool that would contribute towards a safer working environment in safety sensitive workplaces.

Lastly, the policy must be reasonably necessary to accomplish the objective of workplace safety. To establish this, it must be shown that not only is the policy necessary, but that impaired individuals cannot be accommodated without the employer suffering undue hardship. This requires exploring possibilities such as modifying tasks or providing alternative work. For workplace that is safety sensitive, there may not be alternatives to accommodate those unable to perform work in safety sensitive roles. It is always best to consult with an employment law expert when seeking to accommodate with minimal options. At the very least, an attempt must be made by the employer.

In terms of policy, employers should be cautious when implementing random drug testing. Methods of testing that do not measure present impairment will be found to be in violation of human rights. Methods of testing must be able to test for present impairment because this is a direct measure of an individual’s ability to perform while on the job. In the eyes of the law, measuring past impairment discriminates against those with addiction, while providing little indication of their present ability to perform their jobs safely.

I felt forced to resign as a result of an illness or disability – what are my entitlements?

| April 27th, 2017 | 1 Comment »

Disability and Human Rights Law in the Workplace:

Employees have the right to be free from discrimination on the basis of discriminatory grounds, which includes Illness or disability. If an employee is faced with an illness or disability and needs accommodation to complete their work duties, an employer is obligated to accommodate to the best of their abilities. Unfortunately, there have been instances where rather than accommodating, managers or employers will seek to dismiss an employee or make the employee’s situation difficult to the point where they are forced to resign. This may include harassment, refusal to accommodate, or other actions that target the worker’s disability or illness in order to make work intolerable. In such instances, employee can quit and claim constructive dismissal. This simply means that the employer created an environment that would force any reasonable person to resign – in the eyes of the courts, this is the same as a wrongful dismissal.

Damages:

An employee that is wrongfully terminated is entitled to their severance package in addition to any entitlements for damages under human rights law.  Under human rights law, damages will be assessed by the seriousness of the discrimination and the effect it had on the employee (mental distress). Seriousness is assessed by the duration of the harassment suffered or an employee’s length of employment. This can apply to any harassment by management or supervisors, or coworkers that targets the illness/disability of an individual in the workplace. Under human rights law, these damages are intended to right the wrong of the violation suffered by the victim – not to ‘punish’ the employer. However, for extremely reprehensible acts, the courts seek to punish the action itself in order to send a message of retribution, denunciation and deterrence.  To highlight the difference, consider the case of Strudwick v. Applied Consumer & Clinical Evaluations, 2016 (ONCA).

Strudwick (Vicky) v. Applied Consumer & Clinical Evaluations:

In Strudwick v. Applied Consumers, Strudwick was an employee of 15 years that suddenly developed severe deafness from an unknown cause. Applied Consumers refused to accommodate Vicky, and her supervisor and general manager started a course of “public belittling, harassment and isolation in ways relating to her disability” and took additional action to make Vicky’s deafness more difficult in relation to her work duties. For instance, her supervisor made other workers call Vicky instead of using email for any inquiries, making it near impossible for Vicky to perform her job. At one point, management suggested that Vicky quit and claim disability. It was clear that these actions were done to force Vicky to resign. Management eventually dismissed Vicky on frivolous claims in front of her coworkers in a humiliating manner.

The termination was found to be wrongful dismissal and Vicky was awarded her entitled severance pay. Further, Vicky also was awarded $40 000 in damages for the violations she suffered under human rights law to rectify the wrongs. The judge, however, felt that simply rectifying the wrongs here did not denounce the nature of the actions management took. An additional $55 000 was awarded in punitive damages due to management’s harsh, malicious and reprehensible actions leading to termination.

Concluding Remarks:

The case above resulted in $246 049 in total damages due to further damages awarded for intentional infliction of mental distress and aggravated damages. If you are a worker faced with a situation of discrimination and harassment, it is important to seek legal consultation. Assessing damages for human rights violations may extend beyond human rights legislation for actions that are morally reprehensible. It is always best to seek the advice of an employment lawyer to ensure you receive just compensation in extreme cases.