Most often we think of the duty to accommodate in terms of the relationship between employee and employer. However, a BC Human Rights Tribunal  decision in Fossum v. Society of Notaries Public of British Columbia, 2011 BCHRT 310, reminds us that the duty to accommodate applies to professional regulatory bodies as well as to employers.  The challenge for these associations is how to meet that duty while also fulfilling their core mission of protecting the public.

In the Fossum decision,  the Tribunal frowned on a professional association when it required a member to give an undertaking to remain sober, indicating that a ‘last chance agreement’ would have been the appropriate course of action.   The Tribunal awarded Fossum a $5,000 damages award against the Society.

Fossum’s Story

Fossum was a Notary Public with a history of alcohol abuse.  Over the years, the Society of Notaries Public of British Columbia had received several complaints from lawyers regarding Fossum’s unexplained absences from his office, resulting in  Fossum  being suspended from practice three times between 1997 and 2006.

Following his second suspension, Fossum gave the Society an undertaking to attend Alcoholics Anonymous regularly.  He was reinstated on the condition that this undertaking continue.  Less than three months after making this undertaking, Fossum relapsed and was suspended for the third time.  The Society accommodated him by finding coverage for his practice while he attended a recovery program.  When Fossum returned, he was informed that the Society was considering taking disciplinary measures against him, despite receiving a report from his addictions counselor stating that his prognosis for recovery was excellent.   Fossum proposed that he be reinstated with strict conditions that he attend AA regularly, report monthly to the Society and provide random urinalysis tests.  Fossum also undertook to voluntarily resign if he failed to maintain sobriety and was fined $1,500.  The Society then posted information concerning Fossum’s alcohol addiction and treatment on its website.

Fossum suffered two subsequent relapses and the Society asked for his resignation.  Fossum unsuccessfully attempted to negotiate a different outcome with the Society, but he was ultimately terminated in December 2008.  Fossum filed a complaint with the BC Human Rights Tribunal in which he alleged that he was discriminated against on the grounds of physical and mental disability.

The Tribunal’s Decision

On the evidence presented at the hearing, the Tribunal accepted that a breach of a professional undertaking was considered by the Society to be the most serious offence it could address and was subject to the most severe form of discipline under the enabling legislation.  It is a tool to ensure the proper execution of professional notarial transactions, and not a means for controlling future mental/physical disabilities.  The breach of a professional undertaking carries with it a degree of personal blameworthiness that the Tribunal did not consider appropriate to connect to a relapse into alcoholism.

The Duty to Accommodate on a Professional Regulatory Body

The duty to accommodate is well understood in an employment context, but Fossum was not “employed” by the Society; his professional practice was regulated by the Society.  The human rights legislation in BC, as in other jurisdictions, applies to professional regulatory bodies.  As a result, the duty to accommodate applies to these organizations just as it applies to employers.

The Tribunal found that Fossum had established a prima facie case of discrimination due to the finding that the Society perceived him to suffer from alcoholism and he received adverse treatment due to that disability.  The burden then shifted to the Society to justify its termination of Fossum and establish that it had satisfied the duty to accommodate.

The Society’s standard was to ensure “that professional notarial services are provided to the public”.  The Tribunal accepted that this standard was adopted in good faith and found that the Society had reasonably accommodated Fossum following his second relapse.  The Society’s decision to revoke Fossum’s license was justified on the evidence that the Society had accommodated his disability for ten years.

While the Tribunal accepted that Fossum’s conduct was problematic and that the Society had accommodated him in the past, it took exception to how the Society handled  his 2006 suspension that resulted in a professional undertaking.  The wording of the undertaking placed Fossum under an obligation to resign if he breached its terms — this removed the opportunity (and obligation) for the Society to exercise its discretion in determining whether any such breach warranted a termination.  Probably what made matters worse, was that the Society published this undertaking on its website, referring to Fossum’s alcoholism as ‘self-induced alcohol abuse’ — which denoted a prejudicial attitude that did not accept that alcholism was a disease.

As a result, while the Tribunal found that the professional undertaking was, on most grounds, a last chance agreement, it was not an appropriate framework for a last chance agreement; a failed undertaking created blameworthy conduct, whereas a failed last chance agreement is merely indicative that the accommodation did not work.  Furthermore, the language and conduct of the Society surrounding the 2006 suspensions were discriminatory.  A relatively nominal award of $5000 was given to Fossum for these breaches.  Nevertheless, the Tribunal upheld the termination, finding that the Society had met its duty to accommodate.  The Tribunal panel stated:

 334  I have considered the role of the undertaking, which I found to have a discriminatory impact on Mr. Fossum, in the Termination. While I found that the use of an undertaking was not the appropriate tool to address the issues related to Mr. Fossum’s alcoholism that does not mean the Society could not have regard to the fact that it had in essence provided Mr. Fossum with a “last chance”, so long as it considered all reasonable alternatives to the Termination.

335     The Society’s duty to accommodate Mr. Fossum’s relapses did not go on forever. In my view, the Society had fulfilled its duty to accommodate Mr. Fossum’s alcoholism by September 2007. Mr. Fossum failed to maintain his part of the bargain, in that he failed to maintain recovery: Renaud. No expert evidence was led to allow me to conclude that, in the circumstances of this case, further accommodation by the Society was required. I find that the Society exhausted its duty to accommodate Mr. Fossum’s alcoholism. Therefore, Mr. Fossum’s Termination was justified and does not constitute discrimination. This portion of Mr. Fossum’s complaint is dismissed.

We are noting that our clients’ workplace issues are increasingly intersecting  with privacy and access issues.  If you’ve ever wondered about what information your employees have a right to see, what you must share with the union, and how to protect the organization’s information from hacking, this is the conference for you. 

The Provinces of New Brunswick, Nova Scotia and Prince Edward Island, the Nova Scotia Review Office, the Offices of the Information and Privacy Commissioners of PEI and New Brunswick, and the Halifax Regional Municipality are proud to present the 7th Annual Maritime Access & Privacy Workshop. This workshop is a great opportunity to meet, network and share ideas with colleagues from the access and privacy community across the Maritime Provinces. This event will be held on June 6th and 7th, 2012 and returns to Halifax, NS at the World Trade & Convention Centre.

For more information about the conference, or to register, visit: http://www.verney.ca/maritime2012/index.php

Today is the 101st International Women’s Day .  This is a cause for everyone to celebrate, because it is about acknowledging the full potential of the entire human community to contribute and participate fully in the lives of our families, our communities and our world.

The opportunities and acceptance of women in full and equal participation in society has evolved in those 1o1 years.  Even the short time from my mother’s generation to now illustrates the changing attitudes: she was required to resign from her teaching position because she became pregnant (and then had to work as her own replacement because there weren’t any substitutes available); I had the benefit of a statutory maternity leave.

The valuing of women has evolved not only with respect to having options with respect to domestic roles and responsibilities, but also with respect to our ability to contribute to leadership in business and in politics.  As indicated by research conducted by the Inter-Parliamentary Union and UN Women, the advances made around the world are amazing and inspiring .  For example, the number of women leaders of government and heads of state has doubled since 2005, to 17.

The research also indicates that there is still lots of room for improvement:

• Less than 20% of  parliamentarians in the world today are women, and yet, in some countries women are well represented in the ranks of representatives.
• Less than 17% of parliamentary ministers in the world are women
• Seven countries on the rankings list have no female representation in parliament
• The advancement of women in political representation does not necessarily fall along the economic lines of the country.  For example, in Rwanda, 45 of the 80 seats in the lower house

The top ten countries for women representation in government, according to the Interparliamentary Union are:

1. Rwanda
2. Andorra
3. Cuba
4. Sweden
5. Seychelles
6. Finland
7. South Africa
8. Netherlands
9. Nicaragua
10. Iceland

Where does Canada rank?  At #40

And what about women leaders in business?  It seems that our representation in business leadership roles is similar to the political leadership numbers.  According to a study by Grant Thornton International,  only 20% of leadership roles in large private companies are held by women in 2011 (down 24% from 2010).  While women are well represented in the workforce in general, our representation thins significantly on the move up the corporate ladder.

As a female-dominated firm, and with a woman being the managing partner, HRA knows the value women contribute to the dynamics of their families, communities,  and organizations.  Indeed, we value the contributions of all our people and celebrate the fulfillment of their potential.  Thanks to our colleagues, our clients and readers for appreciating HRA based on the value we deliver and the values we live and work by.

Sources:

LACK OF POLITICAL WILL AND MISSED OPPORTUNITIES IN 2011 RESULT IN TOO FEW WOMEN IN POLITICS YET AGAIN, SAYS IPU, http://www.ipu.org/press-e/gen361.htm

Proportion of women in senior management falls to 2004 levels http://www.internationalbusinessreport.com/Press-room/2011/women_in-senior_management.asp

by Linda Gaudet

United Steelworkers, Local 8918 and Gerdau Ameristeel, (2011 C.L.A.S. 283)

In December 2010, a steel mill in Cambridge, Ontario l introduced a new biometric scan system to track employee attendance and work hours. The employer’s other mills already used this technology.  The Cambridge mill’s reliance on manual data was resulting in errors in pay, resulting disputes with employees, and unnecessary administration time.  The scan system introduced contained many protections against hacking, replication of the biometric data, and other risks to employee privacy. However, employees were not convinced and following the system’s introduction the union filed a policy grievance.

Earlier arbitration decisions on use of biometrics were divided on whether such employer innovations were an appropriate exercise of management rights under a collective agreement. The cases which found in favour of the employer did so based on the following criteria:

• the employer’s demonstration of a compelling business case;
• evidence that the collection of the requisite data was minimally intrusive; and
• enhanced security features, both in the design and implementation of the technology, that were responsive to any potential concerns about employees’ privacy.

Arbitrator Susan Tacon found that the biometric system used by the employer met this criteria.  Further, there was no violation of the collective agreement; thus, the introduction of the scan system was a legitimate exercise of management rights.   Tacon  identified the “principle of proportionality” as the critical factor when balancing the employer’s right to manage its employees against the new technology’s potential intrusion on employees’ privacy rights. She noted that  the system was not physically intrusive, time consuming, or painful to use and that further improvements in security protection had been made in the scan system in contention as compared with those in use in the earlier cases.

Congratulations to our colleague, Constance Robinson on being elected to the Prince Edward Island Business Womens Association (PEIBWA).

This non-profit organization provides women business owners with the resources they need to improve their growth and competitiveness. It’s mandate is to provide women with a provincial organization that will:

• Support and promote women business owners
• Provide information and educational opportunities for women business owners
• Increase community awareness regarding women active in business across the province; and,
• Be the recognized voice for women business owners in Prince Edward Island

Constance is excited by the opportunity to work with this organization.  Women continue to lead business growth in small and medium sized enterprizes.  From 1999 to 2009, the number of self-employed women grew by 13 percent compared with 10 percent for men.   However, she believes that there is still room to accelerate these numbers.  Women business owners tend to be  younger than their male counterparts. (In 2007, women owners had an average of 48.5 years of age as compared with 51.1 years of age for male counterparts.) Furthermore, women business owners tend to have less experience. (In 2007, 51 percent of women business owners had more than 10 years of management or ownership experience as compared with 74 percent for male counterparts).  Constance believes that organizations like the PEIBWA can bridge that experience gap by pooling our experiences, wisdom, and knowledge.

by Linda Gaudet

Communications, Energy and Paperworkers Union of Canada, Local 30 and Irving Pulp & Paper, Ltd. (2011 N.B.C.A. 58, CanLII)

For some time there has been an uncomfortable tension surrounding alcohol testing in the workplace.  In an effort to limit the employer’s intrusion into employee’s off-work conduct, there was a line of decisions challenging the ability of an employer to have truly random employee testing.  Our clients with safety-sensitive positions were frustrated that the apparent test was that they had to wait until they had cause (such as a safety incident) before they could require an employee be tested.  However, the law in this area is still evolving, and a recent New Brunswick case offers some guidance.

In 2006, Irving Pulp & Paper, unilaterally adopted a workplace policy at one of its kraft mills requiring employees in safety sensitive positions to submit to mandatory and random alcohol testing by breathalyser. Each year, a computer would randomly select for testing the names of 10% of the employees holding such positions.

The union filed a policy grievance arguing against the “without cause” nature of the policy, believing that the employer had to first show the existence of a particular problem with alcohol in the mill before initiating random alcohol testing.  The majority of the arbitration board applied a harsh test requiring the employer to establish that the mill operations created an ‘ultra-dangerous’ risk of harm sufficient to outweigh an employee’s right to privacy, suggesting that the workplace would have to be the equivalent of  a nuclear plant, an airline, a railroad, or a hazardous chemical plant to warrant a random alcohol testing policy. and similar operations. The dissenting board member found that the kraft mill was in fact “highly dangerous” such that proof of a pre-existing alcohol problem in the mill was not necessary to establish the policy was reasonable.

On judicial review the New Brunswick Court of Queen’s Bench struck down the arbitration award, holding that once the majority had found that the workplace was inherently “dangerous” (as opposed to “ultra-dangerous”) with a “potential for catastrophe”, it was unreasonable to require the employer to provide evidence of a pre-existing alcohol problem at the mill.

The Court of Appeal unanimously endorsed the lower court decision finding that it was unreasonable to require an employer to demonstrate the existence of an alcohol problem in its operations where those operations are “inherently dangerous”. The Court of Appeal also relied on a decision of arbitrator Picher in another case involving a different Irving company engaged in sawmill operations where random alcohol testing was introduced by the employer. In that case, Picher held that the test for this type of alcohol testing was to ask ” . . . what consequences are risked if the person performing a particular kind of work does so impaired by drugs or alcohol. . . . Those performing tasks while impaired by drugs or alcohol in circumstances where they pose a safety risk to themselves or others or to property or equipment fall within the classification of safety sensitive positions.”.

This Court of Appeal decision then provides considerable guidance and support to employers considering random alcohol testing in operations that are inherently dangerous. It must be stressed that any random alcohol testing should be limited to employees in safety sensitive positions only and that this decision applies to alcohol testing only.  At this time, the technology for other drug testing is still considered to be  more invasive of privacy and its results are both less reliable and unrelated to the state of impairment of a person at the time the drug test was administered.  For example, knowing that an employee used cocaine sometime in the last number of weeks does not necessarily mean that they were under its influence at the time of the random testing.  The lesson: privacy interests will give way to safety concerns if the intrusion can reduce the hazard.

by Linda Gaudet, HRA

Teamsters Canada Rail Conference v. Canadian Pacific Railway Company (Canadian Railway Office of Arbitration & Dispute Resolution)

In a June 2010 decision (Case 3900), Arbitrator Picher upheld CP Rail’s policy of asking employees to provide records of their personal cell phone use following a serious workplace accident. Picher reasoned that this policy did not violate the employees’ privacy rights and was “ . . . a reasonable and necessary exercise of the [ the employer’s ] management prerogatives, in the pursuit of safe operations.”

Following this decision, CP Rail expanded the situations in which it demanded employee cell phone records:

• for the entire period of the shift on which a serious accident occurred
• for concerns over employee productivity
• for unredacted information in an employee’s personal phone records where an engineer was terminated for alleged unsafe operation of a train

and disciplining employees who refuse to provide their personal cell phone records where no significant accident or incident has occurred.

Not surprisingly, the Union grieved.  The dispute came back before arbitrator Picher (Case 4038) for resolution. This time he found in favour of the union on three of these issues, but confirmed that it was reasonable for CP Rail to demand an employee’s cell phone records for the entire shift on which an accident occurred.

While Picher’s second decision put a stop to CP Rail’s attempts to stretch the bounds of his original decision beyond safety-related concerns,  this second decision recognizes and confirms the employer’s legitimate interest in perusing such records for a reasonable period before and after an accident, ie., the entire shift on which the accident occurred.

Making New Year’s resolutions is in decline.  I know of far more people who talk of not making resolutions than those who do.  But rather than giving up on resolutions, perhaps we need to look at why we don’t think they work.  Instead of making resolutions, maybe we need to make Resolactions. [Read more...]

The employer obligation to prevent discrimination in the workplace goes beyond direct comments and actions, to the workplace culture and atmosphere.  Matt Walters looks at workplace diversity and the effects of presumptions of sexual orientation in the workplace.

In terms of legal protections for Lesbian, Gay, Bisexual and Transgendered people (LGBT), Canada has a lot to be proud of.   LGBT people are protected from discrimination and harassment under human rights law and under the Charter.  Canada is one of only a handful of countries where same sex couples can legally marry and enjoy the full benefits of that institution.

Legal protection for LGBT people is one thing, but it is quite another for members of that community to feel like full, open participants in society.  In the employment context, the onus falls on management to ensure that LGBT employees feel not only valued and respected but also that they can be open with their colleagues about their identities and personal lives.  Research suggests that this area still needs attention in Canada.

In 2011, Angus Reid released a poll suggesting that while 93% of those polled believed that their employer’s overall attitude towards LGBT people in the workplace was tolerant and 72%  believe that the attitude towards LGBT people in the workplace has improved over the past 5 years, 34-40% of LGBT people polled experienced discrimination during their professional lives.  Further, while 71% of gay men and 80% of lesbians reported being “out” at work with their peer employees, only 58% of gay men and 59% of lesbians were “out” to their human resources department.  Even fewer respondents were “out” to their management or subordinates.”  Only 23% of bisexual men were “out” to their peer employees. [Read more...]