Canadian HR Reporter

Canadian HR RepoRteR december 1, 2014 6 News/employmeNt lAw RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 190,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 10/8/2014 3:40:37 PM honest and good faith belief that these requirements are neces- sary for legitimate work-related purposes." •GH relapsed four times in the previous four years, with Sea- span accommodating GH on three of those occasions. "I conclude that four relapses in four years (since 2006, five re- lapses in seven years), in a safety- sensitive position, has satisfied the employer's duty to accommodate to the point of undue hardship," said the arbitrator. "An additional factor in my analysis of the duty to accommo- date to the point of undue hard- ship has been the settlement/ last-chance agreement wherein all parties came to a similar conclusion." However, in GH's favour, there was no evidence he used drugs or alcohol at work and he self-disclosed each time he relapsed. After receiving treatment for his depression, GH was given medical clearance that he would be able to return to work despite his disability. The settlement agreement allowed that if it was determined GH could not return to work in a safety-sensitive job, another position could be found for him. Since the possibility of a non- safety-sensitive position was raised, the duty to accommodate would necessitate exploring such options, said the arbitrator. Considering GH self-disclosed all his relapses, he was being treated for his depression as well as his addiction and his relapses were off-duty without any actual workplace misconduct, the arbi- trator found it wouldn't be undue hardship for GH to be placed in a non-safety-sensitive position. e arbitrator also pointed out the policy encouraging workers to self-disclose addictions and encouraging their recovery along with workplace safety would be put at risk if GH's conduct result- ed in "immediate termination." Seaspan was ordered to rein- state GH to a non-safety-sensitive position, with no compensation for lost wages. Seaspan was enti- tled to require an additional inde- pendent medical examination to determine GH's fitness for work and have GH sign another return- to-work agreement with the same terms as the previous one. For more information see: •Seaspan ULC and ILWU Cana- da, Local 400 (H. (G.)), Re, 2014 CarswellNat 4087 (Can. Arb.). Jeffrey R. Smith is the editor of Canadi- an Employment Law Today, a publica- tion that looks at workplace law from a business perspective. He can be reached at Jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday. com for more information. lAst chANce < pg. 5 Worker reinstated of discrimination" because of their ability to become pregnant, said Kater. "Having children benefits society as a whole — women should not be disadvantaged in society because they are or have been pregnant," she said. "e Supreme Court of Canada recognized (the) social and finan- cial burdens and costs associated with having children should not rest entirely on women, and al- though women have made major advances in gender equality, dis- crimination because of pregnancy continues to be common in soci- ety, particularly at work." at discrimination can be di- rect or overt, where a person or organization deliberately treats a woman negatively, or it can be indirect and subtle — even car- ried out through another person or organization. It can also be systemic, embed- ded in the patterns of behaviour, policies and practices that are part of an organization's structure or culture, said Kater. Intersecting forms of discrimination Pregnancy discrimination can also intersect with other forms of discrimination, such as racial dis- crimination, said Kater. "There are distinct, nega- tive stereotypes about pregnant women who are parenting on their own, are young, have a dis- ability, receive social assistance, are racialized or Aboriginal, or are lesbian or bisexual. "Discrimination because of pregnancy may overlap with dis- crimination based on family sta- tus," she said. is kind of discrimination can affect men as well because of ac- commodation needs or their re- lationships with women who are pregnant. Another new aspect of the up- dated policy is it includes a sec- tion on trans people and people of diverse genders, to include the perspectives of those individuals as well, said Kater. Pregnancy discrimination still common occurrence The updated policy from the OHRC is important, said Kate Sellar, legal counsel at the Hu- man Rights Legal Support Cen- tre in Toronto, because these types of discrimination are still so common. "We've had protection in the code for women who are preg- nant and breastfeeding for a re- ally long time but, unfortunately, we are still constantly battling for that right for women to both work and have a family," she said. "So those issues are still very much alive and well, unfortunate- ly, and the first message we have for women coming to us is 'You're not alone.' e problem still exists, and it exists in a whole range of workplaces." Not all employers are 100 per cent aware of what their obligations are in terms of pregnant employees or employees who are returning from a preg- nancy-related leave, said Sellar. So it is important for organiza- tions to avail themselves of the information and to check out the Ontario commission's updated policy, she said. "It is really comprehensive and helps employers to figure out how they can make sure that women are fully participating in the work- force and included and being treated fairly." Overt or subtle discrimination ohrc policy < pg. 3 "we've had protection in the code for a really long time but, unfortunately, we are still constantly battling for that right for women to both work and have a family."

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