Canadian Employment Law Today

with Brian Kenny Ask an Expert MacPHERSON LESLIE AND TYERMAN REGINA Have a question for our experts? Email Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2014 2 | | May 14, 2014 May 14, 2014 Health and safety and workplace harassment QUESTION: Is harassment or bullying a legitimate ground for employees to refuse work for health and safety reasons? Can an employer face health and safety sanctions in a workplace with such behavior? ANSWER: Bullying and harassment are occu- pational health and safety issues that pose a potential risk to the physical and mental health and safety of workers. Conduct that is considered bullying or harassment may involve a wide spectrum of behaviours and similarly may have a wide spectrum of con- sequences for the victim including, for ex- ample, impaired concentration or ability to make decisions, which could lead to safety hazards (such as a lack of attention when working with dangerous equipment). Generally, occupational health and safety legislation across Canada includes provi- sions under which a worker may refuse work or perform specifi c duties when she has reason to believe the work conditions are unsafe. e question then becomes: how should employers and employees interpret this in light of workplace violence and ha- rassment concerns? e answer will depend on the govern- ing occupational health and safety legisla- tion in the applicable jurisdiction. Typically, harassment has been insuffi cient to initiate a work refusal but workplace violence, in certain jurisdictions, may form the basis of a valid work refusal. For example, according to Ontario's Occupational Health and Safe- ty Guidelines, Workplace Violence and Ha- rassment: Understanding the Law, a worker can refuse to work if she has reason to be- lieve she may be endangered by workplace violence. However, work cannot be refused on the grounds of workplace harassment without that concern for violence. Fear for one's personal health and safety is one of the most common reasons for an employee's refusal to work. In making a case that an employee validly refused work, the employee must prove that she honestly and reasonably believed her health or well-being was endangered, that she communicated this belief to her employer, and that the danger was suffi ciently serious to justify the refusal: see Toronto (City) v. C.U.P.E., Local 79. Where an employee's objection is more a matter of repugnancy and unpleasantness, arbitrators are less likely to fi nd a justifi able refusal to work. erefore, whether an em- ployee's apprehension of violence, danger or harm is reasonable enough to justify refusal of work, will turn on the facts of that par- ticular situation. e second part of the question outlined above queries whether an employer can face health and safety sanctions in a workplace with harassing or bullying behavior. Again, the answer will depend on the governing occupational health and safety legislation in the applicable jurisdiction. In Saskatch- ewan, for example, the legislation expressly sets out that employers have a duty to en- sure, insofar as is reasonably practicable, that the employer's workers are not exposed to harassment with respect to any matter or circumstance arising out of the workers' employment. If an employer fails to fulfi ll that duty, the employers may face sanctions pursuant to the "off ences and penalties" provisions of the legislation. If harassment does occur in a workplace, employers must demonstrate that the em- ployer did everything it reasonably could to eliminate or prevent it, or to minimize its eff ects. e Supreme Court of Canada in its 1987 decision Robichaud v. Brennan pointed out that although employers may be liable for harassment whether they know of it or not, the penalties imposed will be less, or non-existent, for an employer that "responds quickly and eff ectively to a com- plaint … to remedy and prevent recurrence,. For more information see: • Toronto (City) v. C.U.P.E., Local 79, 2011 CarswellOnt 4807 (Ont. Arb.). • Robichaud v. Brennan, 1987 CarswellNat 907 (S.C.C.). Scaling back benefi ts QUESTION: If an employer offers certain benefi ts (such as vacation entitlement or overtime pay) that are better than employment standards minimums, are there any legal issues or liabilities if those benefi ts are scaled back to the legislated minimums? ANSWER: An employer is, not surprisingly, entitled to off er terms and conditions of employment that are more favourable than the minimums outlined in the applicable employment standards legislation. Often- times, the legislation will include an explicit stipulation to that eff ect as well as a prohibi- tion against attempting to contract for lesser benefi ts than the statutory minimums. For example, employers may off er an hourly rate of pay or a vacation entitlement that exceeds the minimum entitlement. If an employ- ment contract (or a collective agreement) provides a greater benefi t to an employee that is directly related to the same subject matter as a minimum standard in the rele- vant legislation, then the greater benefi t will prevail over that minimum standard. It is important to note that an employer cannot rely on a greater benefi t in one standard to compensate for a lesser benefi t in another. Once implemented, the benefi ts become part of the employment contract, but an employer is not obligated to provide more favourable benefi ts forever. If the employer decides to scale back the more favourable benefi ts, several issues may arise. e issues largely stem from the concept of consideration in contracts and the re- quirement for notice to make a contractual change. Consideration is anything of value promised to another party when making a contract. e exchange of this item of value cements the contractual relationship, so to speak. If no element of consideration fl ows to one party or the other, no valid contract is formed and all of the rights and entitlements thought to exist therein are essentially void. is concept becomes particularly impor- tant when dealing with the question of how and when an employer can make changes to an existing employment contract. e em- ployer is bound by the employment agree- ment it has made with the employee for the duration of the term to which it has agreed. e term may be defi nite or indefi nite in du- ration. Consideration fl ows both ways in the fi rst instance as the employer receives the services of the employee and the employee receives the employment benefi ts off ered by the employer as compensation for services. If the employer subsequently unilater- ally changes the terms and conditions of the employee's employment by scaling back the benefi ts it originally agreed to provide, without providing some additional consid- eration to the employee to compensate for the changes, the new or revised employ- ment agreement may be rendered void. In such circumstances, if a revised agree- ment is rendered void for lack of consider- ation, the original employment agreement would continue to govern the employment relations between the parties. is result can be problematic if the employer believes it has acquired the ability to implement a change and acts upon that belief. In other words, the employer may be obligated to continue operating under the terms of the original agreement and will not be protect- CONSIDERATION on page 6 »

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