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.]

On May 11, in its decision in Kirby v Correctional Services Canada, 2015 PSLREB 41, the Public Service Labour Relations and Employment Board ordered Correctional Services Canada (CSC) to pay $12,500 in back-wages and damages for pain and suffering for having discriminated against an employee on the basis of disability.

The employee, Larry Kirby, had been working as an institutional driver for the CSC when he injured his back in 2005 and became unable to perform some of the duties of his position. Initially, the CSC accommodated Mr. Kirby by reorganizing his position so that he could focus solely on duties he was medically able to perform.

In 2009, after three years of accommodating Mr. Kirby, CSC received a Health Canada assessment indicating that Mr. Kirby’s disability was permanent and that he should be accommodated in his current position on a permanent basis. Despite the CSC’s admission that there was sufficient work for Mr. Kirby, and that allowing him to perform it permanently wouldn’t cause undue hardship, CSC sent Mr. Kirby home on sick leave. The CSC alleged that it simply wasn’t its practice to create a position in which to accommodate a disabled employee.

The PSLREB Adjudicator found that that CSC could have continued to accommodate Mr. Kirby on a permanent basis in his former position with modified duties, and that the failure to do so was in violation of the Canadian Human Rights Act and the collective agreement. CSC was ordered to pay $12,500 damages for pain and suffering and wilful and reckless disregard of its obligations under the Canadian Human Rights Act.

Mr. Kirby was represented by David Yazbeck of RavenLaw.

David Yazbeck has been appointed to the Board of Directors of FOLKRUM, Ottawa’s community music venue. FOLKRUM is an independent, not-for-profit organization working toward the creation of a creativity hub and music facility to serve Ottawa, Outaouais, the valley and surrounding areas. David previously served as an Advisor to FOLKRUM.

On June 11, David Yazbeck will be moderating a Lancaster House Conference on “The ABCs of IMEs: When are they useful, when are the required?” The conference will discuss the ins and outs of employer requests for independent medical examinations (“IMEs”) to verify or obtain information about an employee’s medical condition. The panel will discuss the ground rules for employer requests for IMEs, whether such requests are becoming more common, whether IMEs should be sought only as a “last resort”, how the parties can ensure that privacy rights are being respected in the IME process, and what consequences an employee may face on refusing an IME.

More information about the conference can be found here.

This Monday, as occurs the first Monday of every September, Canadians will celebrate Labour Day. The occasion is usually marked across the country by barbecues, get-togethers and marches, uniting families and friends before the official end of summer and the back-to-school rush. The holiday joins Family Day, Victoria Day, and the Civic Holiday, as vaguely-defined holidays with little meaning to most Canadians other than a day off.

In the case of Labour Day, the lack of recognition is perhaps unsurprising given its history. Labour Day was established in 1894, following the publication of the Report from the Royal Commission on the Relations of Labour and Capital in Canada. Among the many proposals, most of which were ignored, the Royal Commission proposed the establishment of a labour day:

“Your Commissioners recommend that one day in each year be set apart by proclamation to be observed throughout the Dominion as a statutory holiday, and that it be known as Labour Day”

As noted by Professor David Frank, there were many important and necessary reforms recommended by the Royal Commission, such as union recognition, workers’ compensation, minimum wages and child labour laws, which were either too difficult or too inconvenient to implement. A statutory holiday, in contrast, was both popular and easy to enact. (See Ontario, Family Day, 2007).

Unfortunately, rather than providing a day of rest and celebration of the labour movement, Labour Day actually has the opposite effect for many of the most vulnerable labourers in the country. Many retail giants use the holiday as an opportunity to increase sales, and major grocery stores often lobby to remain open. Hundreds of thousands of workers employed in restaurants, gas stations, stores and supermarkets will thus be required to work on a statutory holiday meant to celebrate improved working conditions of all workers.

Ways to celebrate this Labour Day

For those interested in celebrating Labour on Labour Day, all is not lost. Across the country, hundreds of thousands of Canadians will be marching on Monday to mark Labour’s contribution to the betterment of working conditions for all workers. In Ottawa, the Labour Day March starts at noon at City Hall (Lisgar Entrance) and a Labour Day Picnic is scheduled at McNabb Park (Gladstone and Bronson) from 1PM-4:30PM.

Canadians could also spend Labour Day reading up on the labour-related issues in the upcoming Federal election. Some parties have proposed increases to the minimum wage and the abolition of unpaid internships. Hundreds of candidates with roots in the Labour movement are running, raising issues affecting workers and making them electoral issues. There are currently several challenges in the courts regarding labour-related legislation that is alleged to be contrary to the Charter of Rights and Freedoms—these issues can all be raised with current Members of Parliament and candidates.

Whatever else, Labour Day can be a day to reflect on the many advances that unions and workers have achieved. Historic achievements of the Labour movement, such as workers’ compensation, maternity leave, and pay equity, are well known and the effects of these gains continue to this day. There are also recent union victories that can be celebrated this Labour Day, such as decisions from the Federal Court and the Federal Court of Appeal protecting workers from discrimination on the grounds of family status, and the Supreme Court’s recent recognition that workers have a Constitutional right to withhold their labour. In addition to these high-profile gains, unions and workers engage in daily challenges to unfair policies in the workplace, wrongful terminations, and fights for fairer wages that benefit all Canadians.

So, this Monday, reflect on the past, present, and future of the Labour movement, and have a safe and happy Labour Day.

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

In a recent arbitration decision, Ontario Public Service Employees Union, Local 464 v Ottawa Hospital, Arbitrator Mary Ellen Cummings found that the Ottawa Hospital’s application of its short-term sick leave benefits discriminated against employees with chronic disabilities, contrary to the Human Rights Code. The collective agreement language at issue in the case is common throughout most of the hospital sector in Ontario, and this decision sets an important precedent for how absences due to chronic illnesses must be handled in the province.

Background

The case related to sick leave benefits under the Hospitals of Ontario Disability Income Plan (“HOODIP”). Under HOODIP, employees have up to 15 weeks of short-term sick pay benefits for each period of absence. Article 16.03 in the Collective Agreement states: “No sick pay benefit is payable under HOODIP for the first fifteen hours of absence for the sixth and subsequent period(s) of absence in the same fiscal year”. The Ottawa Hospital applied this rule such that any absences separated by three weeks or more were treated as distinct “periods of absence”, even if the absences were all due to the same chronic illness. The Ontario Public Service Employees Union filed a policy grievance against the Hospital, arguing that this interpretation of “period of absence” discriminated against employees who have chronic illnesses that periodically reoccur (e.g. migraines, Crohn’s Disease).

Arbitrator’s Decision

The Arbitrator found that the use of a three-week gap to identify distinct periods of absence had an adverse impact on employees with chronic illnesses compared to other employees receiving sick leave benefits. Employees with frequent, short absences due to a chronic illness will reach their sixth and subsequent “period of absence” more quickly than other employees, due to the nature of their disability. Treating these absences as a “new ailment”, simply because they were separated by three weeks, failed to address the circumstances of employees with chronic illnesses.

Arbitrator Cummings further found that this discrimination was not justified as reasonable and bona fide. She rejected the Hospital’s argument that it would be too onerous to determine whether absences were due to a chronic disability, holding: “looking at the individual needs of employees with disabilities and determining to what extent accommodation is required is the minimum required of all employers under the Code.”

The grievance was allowed, and the Hospital was directed to stop counting absences separated by more than three weeks as a distinct period of absence when the employee has a chronic illness. The Arbitrator further directed the employer to look at absences of employees with chronic illnesses and determine whether the employee can be accommodated, and if so how. She emphasized that accommodation may take many possible forms, and so a single remedy would be inappropriate.

This Award sets an important precedent, not only for collective agreements in the hospital sector with similar language, but also more broadly for treatment of employees’ absences when they are due to a chronic, recurring illness. Arbitrator Cummings’ decision provides strong confirmation that there is not a ‘one size fits all’ approach to managing employees’ attendance, and employers must look at each individual’s circumstances and needs.

The Union was represented by Wassim Garzouzi and Amanda Montague-Reinholdt from Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.

On May 13, David Yazbeck will be speaking at the Lancaster House Halifax Human Rights and Labour Law Conference.  David is participating in a panel called “Don’t Shoot the Messenger: Dealing with whistleblowers in the modern workplace”.  The panel will examine whistleblower legislation, discuss human rights protections, and explore the issue of reprisals.

Andrew Astritis recently spoke at a conference hosted by the Canadian Foundation for Labour Rights that examined three recent decisions from the Supreme Court of Canada on the issues of labour rights and the Canadian Charter of Rights and Freedoms. Andrew’s presentation addressed the implications of the Court’s decision in Saskatchewan Federation of Labour v Saskatchewan on essential services legislation. The conference was organized in conjunction with the Canadian Labour Congress Legal Challenges Committee and the Canadian Association of Labour Lawyers.

On May 7, the Canadian Human Rights Tribunal issued an important decision granting over $310,000 in remedies for discriminatory practices engaged in by the Canada Border Services Agency in violation of sections 7 and 10 of the Canadian Human Rights Act. In an earlier decision, the Tribunal found that the complainant, Levan Turner, was discriminated against by CBSA on the basis of his race, colour, and perceived disability of obesity.

In the remedial decision, the Tribunal found that CBSA wilfully deprived Mr. Turner of employment opportunities, conduct which was deliberate, driven by prejudice and permeated with an ulterior motive to deny Mr. Turner an opportunity to continue being employed with CBSA.

The Tribunal ordered that CBSA compensate Mr. Turner for his lost wages over a ten-year period, anticipated lost wages for the years 2015 to 2019, $15,000 for pain and suffering, and an additional $15,000 compensation arising from CBSA’s wilful discrimination.

Mr. Turner was represented by David Yazbeck of RavenLaw.

This month, Andrew Astritis and Wassim Garzouzi participated in an upper-year labour arbitration course at the University of Ottawa Law School. Andrew and Wassim enjoyed serving as panelists for the year-end labour arbitration moot and providing students with comments and feedback on their presentations.