On November 12, 2015, Michael Fisher presented on an Artists’ Legal Services Ottawa (“ALSO”) Labour and Employment Law for Artists panel. Michael was joined on the panel by Catherine Mensour, of the Mensour Agency, and Sonia Ndongmo, an Ottawa-based vocalist. The panel discussion focused on how legal obligations related to working relationships can be crucial to defining an artist’s rights and obligations.

On October 14, 2015, Dayna Steinfeld was a guest lecturer in the University of Ottawa Faculty of Law Civil Law Section’s “Introduction to the Study of Law” class. This undergraduate class provides an introduction to the Canadian legal system, beginning with the fundamentals of Canada’s legal framework and the common and civil law traditions, and then surveying the basics of different areas of law. Dayna’s guest lecture focused on contracts in the labour and employment context and how legislation provides a minimum floor of protection for workers.

Our office will be closed on Friday, December 11th from 1:30 pm  to 5:00 pm. We will return to regular office hours on Monday, December 14th.

On November 25, 2015, Kim Patenaude will be speaking as part of a panel on “Disclosure of Medical and Personal Information: Rights of Employees and Employers” at the 2015 National Healthcare Labour & Employee Relations conference held by Insight. The panel will discuss privacy policy in the healthcare sector, how it stands out from other industries, what information the employer can and cannot request and how to effectively manage business with the presence of strict privacy and information disclosure policies. 

On November 5, 2015, James Cameron will be speaking on “Resolving Pay Equity Issues in the Provincial and Federal Contexts” at a Canadian Bar Association Labour and Employment Conference. James is speaking as part of a panel of experts on the essentials in pay equity law, including helpful strategies for resolving pay equity disputes without resorting to litigation and legal obligations with respect to pay equity. More information about the conference is available here.

On October 27, 2015, David Yazbeck will be speaking as part of a panel on “Tribunal Trends and an In-Depth Look at the Administrative Tribunals Support Service of Canada” at the Canadian Institute’s 15^th Annual Advanced Administrative Law & Practice conference in Ottawa. David’s panel will focus on how the ATSSC is working nearly one year after the rollout. In particular, the panel will discuss concerns over the impact of the ATSSC on institutional and judicial independence of tribunals, whether there are any proceedings challenging the ATSSC, and practice tips for the ATSSC environment. 

More information about the conference is available here.

On November 25, 2015, David Yazbeck will be speaking as part of a panel on “Human Rights Violation at the Healthcare Workplace: How to Handle Harassment, Bullying and Discrimination” at the National Healthcare Labour & Employee Relations 2015 conference. The panel will discuss the legal obligations of employers to protect human rights at the workplace, how to conduct a proper investigation of harassment, bullying or discrimination at the workplace, and the union’s role in the protection of human rights at the workplace. David is also a co-chair of the conference.

On October 29, 2015, Morgan Rowe and Dayna Steinfeld will be presenting a LEAF at Work workshop at the Glebe Collegiate Institute. LEAF at Work is a one-hour workshop for high school students focused on equality rights and issues of discrimination and harassment in the workplace.  

LEAF – the Women’s Legal Education and Action Fund. LEAF is a Canadian non-profit organization, formed in 1985, that works towards advancing the equality of women and girls in Canada through using the Canadian Charter of Rights and Freedoms. LEAF’s work focuses on litigation, law reform efforts and public legal education programs.

A scientist in the federal public service made national headlines last week when he was suspended with pay pending an investigation into a protest song he wrote about the Harper government. Tony Turner and a chorus of others appeared in a video performance of the song, “Harperman“, which was posted on YouTube last June and had garnered approximately 50,000 views. The video prompted an investigation, according to news reports, into whether Mr. Turner has violated the Values and Ethics Code that applies to employees in the federal government. Mr. Turner is being represented by his union, the Professional Institute of the Public Service of Canada, in the investigation.

This case has brought widespread attention to the interesting issue of the political and free speech rights of public servants. Public service employees enjoy the right to free expression under the Charter of Rights and Freedoms, including political expression, but courts have held that these rights are not absolute: they are limited based on the duty of loyalty to the employer, as well as the need for a politically neutral public service.

How these competing interests are balanced in any one case is difficult to predict: the central question is whether the political activity or criticism impacts the employee’s ability to perform his or her duties as a public servant effectively, or whether it impacts the public perception of that ability. The following factors have been considered in past cases:

• The nature and scope of the political activity in question;
• The position and responsibilities of the employee engaging in that activity;
• Whether the individual identified himself or herself as a public servant in the course of the political activity; and,
• Whether the criticism was particularly sustained or vitriolic in nature.

The question remains how these considerations will be applied in Mr. Turner’s case, as the investigation has not yet concluded. One thing that appears certain is that the results of the investigation will be closely watched by the Canadian public—ironically, the suspension and investigation have brought far more public attention to the song than it would ever have otherwise received (in the few days since this story broke, “Harperman” has vaulted from 50,000 to over 400,000 views on YouTube).

Another question that remains: can someone really be disciplined for writing something this catchy?

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Human rights laws in Canada do not simply prohibit employers and other organizations from taking overtly discriminatory actions against individuals. These laws, such as the Ontario Human Rights Code or the Canadian Human Rights Act, also require an employer to take positive steps to eliminate or reduce barriers in the workplace. This is known as the duty to accommodate.

The duty to accommodate recognizes that it is sometimes necessary to treat a person differently from others in order to ensure they are treated fairly in light of their individual characteristics, needs, or circumstances. The duty is aimed at removing barriers and ensuring individuals’ the ability to fully participate in the workplace and society at large.

In the employment context, the duty to accommodate often arises when an employer seeks to apply a rule or standard to all employees in a way that has negative consequences for some employees due to a prohibited ground of discrimination. (See “Am I being discriminated against at work?”  for more information on the prohibited grounds of discrimination.)

In these circumstances, the employer may be required to accommodate the employee by modifying the rule as it applies to the employee, by providing additional assistance or making changes to the physical environment or workplace culture, or even by providing an exemption for the employee.

For example:

• An employer could be required to modify dress code requirements for some employees if the dress code conflicts with an employee’s religious dress requirements.
• An employer may be required to provide employees with modified duties, specialized work equipment, or changes to their physical workspace if they cannot perform their duties for reasons such as pregnancy or disability.
• An employer could be required to allow for alternative work arrangements, such as compressed hours, flexible hours or a flexible place of work to accommodate childcare or other family obligations.

Employee Responsibilities

The nature of the accommodation required will vary according to each individual’s unique needs, which must be assessed and accommodated on an individualized basis.

While employers will sometimes be under an obligation to inquire into whether an employee needs accommodation, it is generally the responsibility of the employee to communicate his or her need for accommodation to the employer.

Employees are also required to cooperate and be reasonable during the accommodation process. This may involve providing information to help the employer understand what it needs to do to provide accommodation. But employers are entitled to only the information necessary to determine what accommodation is required.

Finally, employees may be required to accept accommodations that appropriately address their needs, even if the accommodations are not ideal or exactly what the employees had asked for.

Accommodating to the Point of Undue Hardship

The duty to accommodate is not limitless. Even where it seems like the employer may have failed to provide necessary accommodation, the employer may nonetheless justify its policy, practice or expectation.

For instance, an employer may be able to establish that accommodating an employee would cause the employer such significant hardship that it should not be required to provide accommodation. Examples of undue hardship can include changes that endanger an employee’s health and safety or the health and safety of others, or changes that impose a financial cost that is so significant that it threatens the viability of the employer’s business. That being said, the standard on the employer is high and recognizes that employer may be required to suffer some hardship in order to provide accommodation.

Conclusion

Whether an employer or other organization has fulfilled its duty to accommodate an individual – and whether it will be able to establish a defence if it has not – is a very individualized and fact-based inquiry. If you believe that an employer or service-provider has failed to accommodate you on the basis of a prohibited ground, you may have been subject to discrimination, and you should seek advice from a human rights lawyer.

We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a complaint of discrimination against your employer.