Canadian HR Reporter

CANADIAN HR REPORTER February 8, 2016 NEWS 17 LIVE WEBINAR TIMING: 12:00 - 1:00 p.m. ET REGISTER ONLINE: www.CPDCentre.ca/hrreporter INTELLIGENT LEARNING SOLUTIONS AND DEVELOPMENT RESOURCES The Canadian HR Reporter Webinar Series has been recognized as an industry standard and includes partnerships with leading organizations such as HRPA, HRIA, HRANB and CHRC. WEBINAR SERIES LIVE AND ON-DEMAND LIVE AND ON-DEMAND Criminal Code (which was amended in 2004 after Bill C-45 was passed and imposed serious penalties for occupational health and safety violations resulting in death or injury), according to the Canadian Centre for Occupation- al Health and Safety. e decision was applauded by the Ontario Federation of Labour (OFL), which launched its "Kill a Worker, Go to Jail" campaign in the wake of the incident. e judge sent a strong message to employers, said OFL president Chris Buckley. "Bosses cannot expect that it's all about money, this is not about profits any longer. is is about health and safety. is is about the lives of workers," he said. "ose workers left their families that day to earn a living and then died at the end of that day. It will not be tolerated any longer." e incident was preventable and the onus was on those who knew about the hazards and went ahead with the work anyway, said Buckley. "This should not have hap- pened. e minute they knew there were not enough lifelines on that worksite, it should have been shut down," he said. "Justice has been served and the judge was fair. I think employers now will get the message after the ruling." Background e deaths occurred when the swing stage the employees were working on suddenly collapsed and they fell more than 100 feet. Swing 'N' Scaff supervisor Fay- zullo Fazilov allowed six workers to be on the scaffold knowing it was unsafe. ere were only two lifelines available and three of the four workers, including a supervi- sor, had marijuana in their system. Sixty-one charges were laid un- der the Occupational Health and Safety Act (OHSA). And in 2010, criminal charges were laid against the company and Kazenelson was charged with criminal negligence causing bodily harm and four counts of criminal negligence causing death. "None of those workers was at- tached to a lifeline as required by both the law and industry prac- tice," said Ontario Superior Court of Justice Judge Ian MacDonnell in his decision. "Kazenelson, Metron's project manager, was with the workers at the time of the collapse. He had taken no steps to ensure that life- lines were available for the work- ers and that they were used." While Kazenelson's breach of duty was not part of an ongoing course of negligent conduct in relation to fall protection, he was aware of how the men were work- ing, said MacDonnell. "From the moment he joined them, (Kazenelson) was aware that they were working 100 feet or more above the ground without lifelines. He not only did nothing, he permitted all six workers to board the stage together with their tools, and he did so in circum- stances where he had no informa- tion with respect to the capacity of the stage to safely bear the weight to which it was being subjected." Jail time required e ruling serves as a stark re- minder to employers about health and safety obligations, said Zacks. "The courts certainly seem more open to jail time — it was something that was unheard of in the past. So I do think that it is representative of a turning point for health and safety in terms of jail time but, also, we're seeing higher fines and more severe pen- alties overall." e takeaway, therefore, is em- ployers should close off any defi- ciencies and ensure all their peo- ple — managers, supervisors and the like — are aware of the health and safety consequences, not just for the company and its top brass, but for employees, she said. "Supervisors and those respon- sible for the health and safety of workers need to know that it's not just a matter of 'Well, you may have breached some health and safety requirement and the com- pany will be found liable' but they in fact also have personal respon- sibility to workers." During his sentencing, Ka- zenelson apologized for what hap- pened and for the role he played. He said he would never forget the day and live the rest of his life with the pain of what happened. And his lawyer argued for a lighter sentence, between 12 months and two years, part of which would be served as a pro- bationary period during which Kazenelson would go out into the community and speak about workplace health and safety. But such a short sentence "would be inadequate to satisfy the paramount objectives of de- nunciation and deterrence," said MacDonnell. "A significant term of impris- onment is necessary to reflect the terrible consequences of the of- fences and to make it unequivocal- ly clear that persons in positions of authority in potentially dangerous workplaces have a serious obliga- tion to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day." Primary objectives denunciation, deterrence FATALITIES < pg. 1 due to his observance of the Christian Sabbath. The employer gave evidence that he fired the applicant be- cause he had been "written up" four times in four months, and he was disrespectful and confronta- tional in his meeting with him. e employer agreed, however, that the applicant's refusal to work Sundays was also a reason for the employee's termination. e tribunal found that the em- ployer breached the code. e legal framework For prima facie (on its face) dis- crimination on the basis of creed to be established, a person must show: • he has a characteristic protected from discrimination under the code (creed) • he has experienced negative treatment or an adverse impact within a social area protected by the code • the protected characteristic was a factor in the negative treatment or adverse impact. Using Smith as an example, Smith's creed was protected un- der the code. He was terminated at his place of employment (a protected social area) and his observing the Christian Sabbath was a factor in him experiencing negative treatment (termination of employment). Once the prima facie case of discrimination is established, the onus to provide a non-discrimina- tory explanation to justify the con- duct then rests with the employer. On this point, the policy also contains certain limitations and defences for employers. A duty to accommodate creed beliefs may be limited where the accommo- dation will cause undue hardship for an organization (such as exor- bitant costs or health and safety concerns). In the case of Smith, however, no undue hardship to the employ- er was found. In a province growing in diver- sity, the expectation of true inclu- sion is no longer the exception. e policy gives employers tools to set up protocols to meet their human rights obligations. It can be used as a "rule book" as it provides many practical sce- narios to everyday situations that employers face. at said, the policy is an indi- cation of the expanding role hu- man rights law has taken in the litigation of employment disputes where discrimination exists. Re- cent cases such as O.P.T. v. Presteve Foods Ltd. are damning examples of an employer's flagrant breach of the code and the size of human rights damages an employer can face where breaches of the code are particularly egregious. Tips for employers Mandhane had the following tips for employers that strive to ensure they are in compliance with the new policy and code: • Create a culture of human rights in the workplace. Have a conver- sation. Have clear codes of con- duct and policies around human rights. Be proactive. Don't get into a situation where employees don't feel you're open to speaking about issues they have. Create a welcoming culture. Often that is really important — many com- plaints can be avoided if employ- ees feel they can come forward. • Understand your obligations under the code. e OHRC has created e-learning materials. Have managers take part in that training. • Address any potential issues pro- actively. If you hear an employee may be upset, ask him if he needs an accommodation. Create a cul- ture where people don't feel like they have to wait until after they leave employment to raise issues. For more information see: • G l o b a l C o m m u n i c a t i o n s Ltd. V. C.E.P., Local 722-M, 2010 CarswellOnt 8884 (Ont. Arb.). • Smith v. Network Technical Services Inc. 2013 HRTO 1880 (Ont. Human Rights Trib.). • T. (O.P.) v. Presteve Foods Ltd., 2015 CarswellOnt 12338 (Ont. Human Rights Trib.). Sunira Chaudhri is a partner at Levitt and Grosman in Toronto, practising labour and employment law. She can be reached at (416) 597- 3373 or schaudhri@levittgrosman. com. Understand obligations, address potential issues CREED < pg. 5 Have a conversation. Have clear codes of conduct and policies around human rights.

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