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News and Discussions on Payroll, HR & Employment Law

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prima facie discrimination

SCC upholds dismissal of employee for failing to disclose cocaine use in violation of no free accident rule

The no free accident rule is designed to encourage safety by encouraging employees with substance abuse problems to come forward and obtain treatment before their problems compromise safety. In Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the Supreme Court of Canada recently reaffirmed the two-part test for discrimination in the workplace. Centered on the termination of […]

 

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The duty to accommodate revisited: H.T. v. ES Holdings Inc. o/a Country Herbs

The duty to accommodate presents itself to employers in many forms. While the most common accommodation involves a disability, often there are other grounds for accommodation that an employer must address as illustrated in H.T. v. ES Holdings Inc. o/a Country Herbs.

 

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No obligation to let employee smoke marijuana at work as a form of accommodation

The British Columbia Human Rights Tribunal, in French v Selkin Logging, found that an employer did not discriminate based on the ground of physical disability by refusing to allow the employee from smoking marijuana at work. The company’s zero-tolerance policy for drugs constituted a bona fide occupational requirement (BFOR).

 

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Constructive discrimination: The case of Tawney Meiorin

Constructive or adverse discrimination in employment occurs when rules or standards are established that do not discriminate at first glance, but have an adverse effect on persons whose rights are protected under human rights legislation. In such a case, the burden shifts to the employer to establish that such rules or standards are essential to the job, also known as bona fide occupational requirements (BFOR’s. British Columbia (Public Service Employee Relations Commission) v. BCGSEU is the leading case which addresses this issue. This seminal human rights case from the Supreme Court of Canada established a three-part test which has become the standard to evaluate constructive discrimination.

 

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When babies need tending and parents need mending: accommodating employees on the basis of family status

What if a single mother asks to miss work to care for her sick child? Or an only child asks for a reduced work week to care for an elderly parent? For many years, discriminating on the basis of family status has been illegal in most Canadian jurisdictions. However, it is only recently that the courts and adjudicators have been called upon to decide the scope of an employer’s obligation to accommodate…

 

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Older workers and declining performance

When mandatory retirement was eliminated, I noted that this change might create some interesting HR issues for employers of older workers. In the past, employers were often in a position to tolerate declining performance, comfortable in the knowledge that the employment relationship had a fixed “end date.” As a result, they could allow the employee to work out their last few years and retire with dignity.

 

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