Ottawa Human Rights and Labour Day Conference - Day 2
Friday, October 11, 2019
Breakfast8:00 AM - 9:00 AM
Introductory remarks by Co-Chairs9:00 AM - 9:10 AM
This Job Makes Me Sick: What to do when the workplace contributes to disability
9:10 AM - 10:30 AM
David LawEmployer CounselLaw at Work
Morgan RoweUnion CounselRaven, Cameron, Ballantyne & Yazbeck
PANEL SUMMARYIn this interactive session, experts will examine some of the difficult questions that arise when workers claim that workplace stress, bullying, or interpersonal conflicts are making them ill. Through discussion of case studies that raise fundamental questions about the organization of work and the legitimacy of management actions, experienced labour lawyers and a mental health professional will address the following questions:
- What is the appropriate response to an employee who goes on "stress leave" immediately after management has raised concerns about the employee's behaviour or performance at work? In such circumstances, can the employer assume the employee is abusing sick leave to avoid discipline or other types of management?
- How do you draw the line between bullying and legitimate management actions such as performance management? Is the assessment based on an objective standard, or does an adjudicator examine the complainant's subjective perceptions?
- Do employers have a duty to be more sensitive in dealing with individuals with mental disorders that make them especially sensitive to criticism, or is taking direction and criticism a bona fideoccupational requirement?
- Would changing an employee's supervisor or asking the employee's supervisor to adopt a different management style constitute undue hardship in situations where interaction with the supervisor is contributing to an employee's disability?
- What is the appropriate response when an employee claims that his or her workload is causing or aggravating a mental illness or disability? Are employers required to change performance standards or reduce workloads for stressed employees?
- How should employers and unions respond when an interpersonal conflict appears to be adversely affecting the mental health of one or more employees? Does it matter whether the behaviour at issue constitutes harassment or bullying? How can unions fulfil their duty to fairly represent all members when members are in conflict?
BREAK (with refreshments)10:30 AM - 10:45 AM
You Can't Say That!: How far can employees go in publicly criticizing their employer?
10:45 AM - 12:00 PM
Dina MashayekhiUnion CounselJewitt McLuckie
Caroline RichardEmployer CounselBird Richard
PANEL SUMMARYWhen employee interests diverge from those of the employer, employees can be expected to voice dissatisfaction. In an era of electronic communication and ubiquitous audio and video recording devices (otherwise known as smartphones), it is easier than ever for employee expressions of dissatisfaction to become public – intentionally or unintentionally – or to find their way back to the employer. In such an environment, is it ever safe for employees to criticize their employers? Can unions, whose representation is based on employees discussing dissatisfaction with working conditions, continue to function? Is it possible for employers to protect their reputations and ensure respectful workplaces? In this session, a panel of experts will address these and other questions, including:
- Do employees have any freedom to publicly express criticism of their employers without incurring discipline? Does it matter whether the employee is unionized or non-unionized? Does it matter whether the employee works for the government or for a private employer? In the case of public employees, when, if ever, will the expression of views on political issues be tantamount to criticism of the employer?
- Do employees have a right to privately criticize their employers without being disciplined? What if comments that are meant to be private are reported to the employer or recorded and spread?
- When will a statement made by an employee be treated as having been made to the "public," as opposed to in the course of a private communication? Are comments made to a friend at a pub private or public? What about comments made on a private Facebook page or forum accessible only to select individuals?
- Does the employer have any legal right to know about or regulate what is said in union meetings or union communications with bargaining unit members? Does it matter whether union communications take place on the employers' premises or over employer-controlled email? What is "qualified privilege" and how does it apply to union business?
- What is the extent of "union immunity" provided to elected, full-time union representatives who are on leave from the employer? Is the scope of immunity provided to part-time union representatives or stewards different?
- What statutory protections exist in Canada for employees attempting to expose wrongdoing within the organization in which they work? When, if ever, can an employee be disciplined or discharged for alleged whistleblowing activities?
- How should workplace parties deal with employee expression (including whistleblowing, academic freedom/scientific integrity, political speech, etc.) at the bargaining table?
12:00 PM - 1:00 PM Panel 7
Two Years After #MeToo, #TimesUp: Do your sexual harassment policies and procedures withstand scrutiny?
1:00 PM - 2:15 PM
Jennifer WhiteLawyer and Workplace Investigator
Craig StehrEmployer CounselGowling WLG
TBAUnion Counsel TBA
PANEL SUMMARYIn the wake of the #MeToo movement, complaints of workplace sexual harassment have continued to rise in number and generate unwanted publicity for businesses and other organizations. In this climate, when faced with sexual harassment allegations against an employee, many employers may be tempted to protect their reputations by firing first and asking questions later. However, acting too hastily may result in employer liability and improperly deny fairness to both complainants and respondents. In this session, experts will provide guidance on how employers and unions can develop and implement policies and procedures that effectively address sexual harassment while protecting victims' rights and upholding procedural fairness.
- Policies and procedures: What are an employer's legal obligations with respect to preparing and maintaining a workplace harassment policy and program? What are the key characteristics of an effective workplace harassment policy? What provisions may be included in a collective agreement to address harassment?
- Responding to a complaint: What steps must an employer take once it becomes aware of an allegation of sexual harassment to comply with its legal obligations under provincial and federal legislation? If it receives a credible complaint, must an employer conduct an investigation before disciplining or discharging an employee who has been accused of sexual harassment?
- Conducting a fair investigation: What does procedural fairness require in the context of a sexual harassment investigation? What interim measures may be considered by the employer or requested by the union while the investigation is ongoing?
- Taking action after an investigation: If there has been a finding of sexual harassment, can an employer rely solely on the investigation report as the basis for discipline? What factors should employers consider prior to taking disciplinary action? Is discipline always the best response to sexual harassment? What measures should an employer take when an allegation is not substantiated?
- The role of the union: What is the role of the union in an investigation? Do employees being interviewed during an investigation have the right to union representation? What steps can the union take to protect the rights of a complainant or respondent? How can the union meet its duty of fair representation if both the complainant and respondent are union members?
BREAK (with refreshments)2:15 PM - 2:30 PM
Adjudicators at Work: Rapid rulings on controversial issues
2:30 PM - 3:45 PM
John JaworskiBoard MemberFederal Public Sector Labour Relations and Employment Board
In labour arbitration, parties who understand the reasoning behind arbitral decision-making have a critical advantage. In this scenario-based session, attendees will gain insight into how arbitrators approach cases involving two complex issues: (1) employee privacy and the use of wearable surveillance devices, and (2) misconduct linked to substance use disorder.
CONFERENCE ENDS3:45 PM