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Labour & Employment


Thursday, June 15, 2017 @ 05:15 PM

SCC okays zero tolerance drug policy for safety-sensitive workplaces Peter Gall

In a boost for employers with “zero tolerance” drug and alcohol policies in their safety-sensitive workplaces, the Supreme Court has upheld the automatic termination of a cocaine-addicted heavy machinery operator who was fired after he got into an accident at a coal mine. ... [read more]

Thursday, June 15, 2017 @ 01:28 PM

Stewart McKelvey adds three new associates

East coast law firm Stewart McKelvey has added three new associates. ... [read more]

Thursday, June 15, 2017 @ 01:14 PM

DISCRIMINATION - Prohibited grounds - Mental or physical disability - Context - Workplace discrimination - Drug and alcohol policies - Termination

Appeal by the employee Stewart, through his union representative, from an Alberta Court of Appeal decision which upheld the Alberta Human Rights Tribunal’s finding that Stewart was not terminated because of his drug addiction, but for breaching his employer’s policy related to alcohol, drug and medication use. Stewart worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The employer implemented an Alcohol, Illegal Drugs & Medication Policy (Policy) with the goal of ensuring safety in the mine. Employees were expected to disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated. The Policy was dubbed the “no free accident” rule. Stewart attended a training session at which the Policy was reviewed and explained. He also signed a form acknowledging receipt and understanding of the Policy. Stewart used cocaine on his days off, but did not tell his employer that he was using drugs, and one day his loader was involved in an accident. No one was hurt, but Stewart tested positive for drugs. In a meeting with his employer following the positive drug test, Stewart indicated that he thought he was addicted to cocaine. Nine days later, his employment was terminated in accordance with the “no free accident” rule. Stewart submitted that he was terminated for addiction and that this constituted discrimination under the Human Rights, Citizenship and Multiculturalism Act (Act). The Alberta Human Rights Tribunal (Tribunal) held that Stewart was not terminated because of his addiction, but for breaching the Policy, which required him to disclose his addiction or dependency before an accident occurred to avoid termination. The Tribunal’s decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal. The main issue in the appeal was whether the employer terminated Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). ... [read more]

Thursday, June 15, 2017 @ 08:43 AM

Wellness: Does the Law Society Tribunal have a duty to accommodate? | Darryl Singer

Those who practise in the areas of human rights law and employment law are familiar with the concept of “duty to accommodate.” At the intersection of employment legislation and the Ontario Human Rights Code, employers have long been held to have a duty to accommodate an employee with disability. Addiction and mental health issues are deemed disabilities. ... [read more]

Tuesday, June 13, 2017 @ 08:34 AM

ENFORCEMENT AND PROCEDURE - Commissions - Powers - Complaints - Appeals and judicial review

Applications by 17 complainants for judicial review of a decision by the Canadian Human Rights Commission dismissing the applicants' complaints against the respondents, Air Canada and the Air Canada Pilots Association. The applicants were pilots whose employment was terminated by Air Canada in 2010 and 2011 pursuant to a collective agreement requiring retirement at age 60. The Association was the designated bargaining agent for Air Canada pilots. The applicants filed human rights complaints against Air Canada and the Association. The Commission dismissed the complaints on the basis it was plain and obvious they could not succeed. The Commission relied upon the exception within s. 15(1)(c) of the Canadian Human Rights Act, whereby termination upon reaching normal age of retirement for a particular position was not discriminatory. The Commission cited two prior Federal Court decisions in which age 60 was confirmed as the normal retirement age for Air Canada pilots, and in which s. 15(1)(c) was found constitutionally valid. The applicants sought judicial review. ... [read more]

Friday, June 09, 2017 @ 09:09 AM

Tougher reporting requirements at heart of Nova Scotia's new OHS Act Mark Tector

Safety first will take on new meaning for employers in Nova Scotia on June 12, when amendments to the Occupational Health and Safety Act come into effect. ... [read more]

Friday, June 09, 2017 @ 09:05 AM

Don’t get the retirement age wrong in personal injury claims Golden eggs

The selection of a retirement age is generally a key assumption in the quantification of personal injury claims. When an employee participates in a defined benefit pension plan, it is often assumed that the most appropriate retirement age is when the employee is eligible for an unreduced pension. An unreduced pension is often described as a full pension, thereby suggesting that a rational employee will choose to retire when they have maximized their pension. However, an “unreduced pension” and a “full pension” are not one and the same. ... [read more]

Friday, June 09, 2017 @ 06:25 AM

Transport Canada considers random drug, alcohol testing after Fit to Fly Workshop Inna Koldorf

A policy for random drug and alcohol testing was a point of discussion at Transport Canada’s first Fit to Fly Workshop this week in Gatineau, Que. ... [read more]

Wednesday, June 07, 2017 @ 11:52 AM

Dentons appoints Kubina as Slovakia managing partner

Dentons has announced the appointment of Peter Kubina as Slovakia managing partner. ... [read more]

Tuesday, June 06, 2017 @ 08:40 AM

Marijuana use and workplace terminations

Regardless of the anticipated impact of marijuana legalization, employers must update their policies and regulate the use of marijuana in the workplace much the same way they have regulated alcohol. Save for medical reasons or addiction, marijuana legislation does not give employees the right to use marijuana at the workplace and remains unprotected by the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”). ... [read more]