The Problem with Last Chances
Last Chance agreements are increasingly used by employers where an employee has been or is about to be discharged for reasons generally related to attendance or drug/alcohol use. The agreement typically makes (continued) employment conditional upon the employee maintaining specified levels of attendance or addressing the drug/alcohol use that led to the discharge. The agreement may stipulate that failure to adhere to the terms of the agreement may result in an employee’s automatic discharge, without recourse to the grievance procedure or to human rights legislation. However, where an employee’s conduct relates to a disability such as drug and alcohol addiction, the terms of the Last Chance agreement (“LCA”) and any adverse action based on it must comply with the requirements of human rights legislation, including the duty to accommodate to the point of undue hardship. That is, given the quasi-Constitutional nature of human rights legislation, employers cannot contract out of their obligations under the legislation. The Canadian Human Rights Commission in its policy on Drug and Alcohol testing further states that LCAs do not themselves confirm whether there has been sufficient compliance with the duty to accommodate.
Considerations in making enforceable LCAs:
The terms of the agreement may expressly acknowledge the existence of just cause for dismissal while providing accommodation of conditional re-instatement for the purposes of enabling the employee to return to work or maintain regular attendance etc. Where there is no just cause, the union and employee may consider alternative accommodation arrangements with the employer (see Dana Corp and I.A.M., Local 2330,  O.L.L.A., No.77 (QL) (OB Shime).
Any adverse action linked to disability, even where founded on the agreement between the employer, union and employee must meet the standard of lawfulness prescribed by human rights legislation. The terms of the agreement should not require conditions that are themselves discriminatory.As an example, a term of an LCA that imposes conditions not imposed on other employees, such as a requirement that an employees’ attendance equal or surpass the departmental average, may be struck down as discriminatory. See OPSEU v. Ontario (Minister of Community and Social Services) (Blackhall) (1996), 89 O.A.C. 161 (Div Ct.).
The terms of the agreement must relate directly to the employees disability and steps reasonably necessary to address the conduct leading to discharge. Requirements for total abstinence and random alcohol-testing may be appropriate in safety-sensitive positions Kimberly-Clark Forest Products Incorporated and P.A.C.E., Local 7-0665 (2003). On the other hand, requirements that an employee substantiate any absence from work by submitting a medical note was found to be discriminatorygiven that there was no justification tied to the grievor’s disability (see Coca-Cola Bottling Co. and C.A.W., Local 973 (2009), 190 L.A.C. (4th) 45 (Chauvin).
The terms of an agreement that are overly intrusive, such as to undergo regular blood tests or psychiatric assessments may also be struck down as discriminatory (see Ryan v. St. John’s City (2007), 60 C.H.H.R. D/134.)
Cutting-Edge Family Status Ruling at the Federal Court of Appeal
In Canada (Attorney General) v. Johnstone, the Federal Court of Appeal upheld the findings of the Federal Court concerning an employer’s obligation to provide workplace accommodation for an employee’s childcare needs.
In this case, Johnstone worked rotating shifts for Canada Border Services Agency (“CBSA”) at Pearson International Airport. Both Johnstone and her husband worked unpredictable, variable, rotating shifts with multiple start and end times. Ms. Johnstone requested accommodation that would permit her to work three fixed daytime shifts of 13 hours each. CBSA denied Johnstone’s request in accordance with an unwritten policy that employees seeking accommodation for childcare needs had to transition to part-time.
The Federal Court of Appeal upheld the lower court’s ruling that the application of the unwritten workplace rule was arbitrary, applied inconsistently and failed to consider the employee’s legitimate childcare needs. The Court of Appeal also rejected CBSA’s argument that family status is to be given a literal interpretation and only concerns the immutable relationship of being in a parent-child relationship.
However, where the Federal Court affirmed all forms of childcare obligations even trivial ones would be subsumed under the protection of family status, the Court of Appeal disagreed. The Court ruled that childcare obligations are to be considered “those that form an integral component of the legal relationship between parent and child” and would not be extend to personal family choices such as to extra-curricular activities or family trips.
In considering the proper test to be applied to determine whether discrimination has occurred, the Court of Appeal agreed to the Federal Court’s rejection of the approach in Campbell River (Health Sciences Association of B.C. v. Campbell River and North Island Transition Society,  B.C.J. No. 92) in so far as the test applied to family status (demonstrating that a workplace requirement not just interferes but substantially interferes with a parental obligation) should be the same as that applied to other protected grounds. The Court of Appeal set out the following four elements that a claimant must demonstrate in order to establish a prima facie case of discrimination:
- the child is under his/her care or supervision;
- the child-care obligation at issue engaged the claimants’ legal responsibility for that child; as opposed to personal choice;
- that he/she made reasonable efforts to meet the childcare obligations through reasonable alternative solutions; and no such solution is reasonably accessible;
- that the impugned workplace rule interferes in a manner that is more than trivial or substantial with the fulfillment of the childcare obligation.
See Canada (Attorney General) v. Johnstone, CHRR Doc. 14-3045
Human Rights in the News
The Supreme Court rules that the right to strike is protected by Charter’s guarantee of freedom of association. See Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4
Worker’s Rights to control collective interests through the bargaining agent free from management influence protected by Freedom of Association under the Charter, the Supreme Court rules. See Mounted Police Association of Ontario v. Canada (Attorney General) 2015 SCC 1
Renowned law firm Rubin Thomlinson releases investigation report on allegations of Ghomeshi’s sexual harassment. The full report can be found here: http://www.cbc.radio-canada.ca/_files/cbcrc/documents/press/report-april-2015-en.pdf
The Supreme Court disallows prayer at the start of municipal council meetings: see Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16
2015 Equity Calendar at a glance
- May – Asian Heritage Month
- May – August – Pride events across Ontario
- June 12-14 – Francophone Conference
- July 30 – August 2 – Caribana Weekend
- August 12-14 – International Youth Day Conference
- September 15 – Joint Leadership Day
- November 6-8 – Women’s Conference
Members of the Provincial Francophone Committee (PFC) are excited to host OPSEU’s first ever Francophone Conference! It will be held at the Westin Hotel in Ottawa from June 12-14, 2015. The theme is “I make a difference in French.”
The conference is designed to allow francophone members to become more involved within their union. The committee’s goal is to see participants leave with new ideas which will allow them to implement innovative changes in their locals and communities. It also aims to be particularly exciting because innovative speakers with rich and diverse experiences have been confirmed to present. In addition, the event will aim to address the following topics:
- the myths and realities of the decline of the francophone community in Ontario;
- the need for francophone services;
- the importance of respecting francophone rights; and
- the use of French services to educate, mobilize and empower members.
In addition, there will also be an opportunity to examine and look at the advancements that OPSEU has made in offering French language services to its membership.
Conference participants will be able to network, learn, share experiences and most of all, have fun! The committee and their peers from across the province will gather together in the spirit of camaraderie. With collective involvement, enthusiasm and insight, this event promises to be a momentous occasion for OPSEU and its francophone members.
For more information: https://opseu.org/event/opseu-francophone-conference
International Youth Day
“Invest in YOUR Future,” the 8th Annual International You Day Conference is scheduled to take place from August 12-14, 2015 at the Courtyard Marriott in downtown Toronto.
The event is hosted by OPSEU’s Provincial Young Workers Committee (PYC). It has been expanded to a two and a half day event and will look to build on the discussions, commitments and skills introduced at last year’s event “Leadership: Accelerate Your Activism.” Planned activities included educational workshops with a focus on:
- Basic Grievance Handling
- Public Speaking – Finding Your Voice
- Mental Health – Challenging Stigma in the Workplace
- Time Management
- Health and Safety for Young Workers
The conference will welcome dynamic speakers with the goal of motivating, educating, and mobilizing OPSEU’s contingent of young workers. In addition, OPSEU staff from various departments of the organization will be on hand to speak and lend their expertise as it relates to bargaining, organizing, and human rights, to name a few.
For more information: https://opseu.org/youthconference2015
Joint Leadership Day
The 2015 Joint Leadership Day will be held on Tuesday September 15, 2015 at the Delta East Toronto hotel. Organized by the OPSEU Equity Chairs, Joint Leadership Day is an annual gathering of all Equity Chairs, OPSEU Executive Board members, Division Chairs and OPSEU senior staff, for the purpose of education on equity issues and concerns. “Measuring Equity” is the theme of this year`s gathering which will explore ways to measure change at an organizational level, with a particular focus on racial equity. The day promises to supplement OPSEU’s continued work with the Social Mapping Project and to evaluate whether steps already taken are the best path toward a more equitable Union.
The Provincial Women’s Committee (PWC) is currently hard at work with plans for this year’s Women’s Conference. The event will take place from November 6-8 at the Eaton Chelsea in downtown Toronto. More information including the Call for applications will be made available in the coming months.
Human Rights Conference
The 3rd biennial OPSEU Human Rights Conference was held from November 7-9, 2014 at the Eaton Chelsea in downtown Toronto. The event, Human Rights, Competing Rights, Emerging Rights focused on human rights violations committed against aboriginal communities; employment barriers for Canadian immigrants in the form of the racialization of poverty; and respecting human rights of children and migrant workers.
The main theme of the conference focused on the idea that one person can make a difference. The presentations and planned activities enhanced the message that every little bit counts when looking at the bigger picture.
The event also incorporated the use of electronic polling (e-polling) into its program. This was an innovative and easy way of generating instant feedback from the participants. It proved especially beneficial to the invited guest speakers because it helped to facilitate the question and answer portions of their respective presentations. Based on the resounding positive feedback members of the planning committee received, e-polling seems destined to make another appearance at future OPSEU events/conferences.
Rainbow Alliance updates its name!
In their efforts to be more inclusive, members of the Rainbow Alliance decided to change the caucus name. Arc-en-ciel is the French translation for the word ‘rainbow’ and because “alliance” appears in both the English and French versions, it made sense to merge the two names into: Rainbow Alliance arc-en-ciel.
In addition, the Alliance has also included the letter “A” in LGBTTIAQQ2S. It represents individuals who self-identify as asexual. The caucus now provides representation to lesbian, gay, bisexual, transgender, transsexual, intersex, asexual, queer, questioning, and two-spirited members.
Watch out for members of the caucus throughout the summer months as they gear up for Pride events scheduled across the province.
Equity Unit News
The Equity Unit is pleased to welcome Ronnie Banerjee! He joined us back in November 2014 as the unit’s Secretary. Ronnie is temporarily replacing Jayme Giles who is on maternity leave until late 2015. Prior to joining the Equity Unit, Ronnie worked as the Receptionist at the OPSEU Regional Office in downtown Toronto. His experience in Region 5 has proven invaluable to the work he currently does to support members of OPSEU’s equity committees and caucuses.
We would also like to extend a warm welcome to Jonah Kai Giles, honorary member of the Equity Unit. He was born on December 19, 2014 to proud parents Jayme and Stephen Giles.
Equity Unit Staff
Ronnie Banerjee, A/Secretary (replacing Jayme Giles)
Fridmar Facunda, Bilingual Equity Officer
Tim Vining, Equity Officer
Libby Zeleke, Human Rights Officer
Catherine Bowman, Supervisor
Download a copy of this newsletter: Equity Newsletter Spring 2015.pdf