Canadian HR Reporter

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Toronto ON M5V 3M2 (416) 225-5001 Email: rejean.tremblay@aonhewitt.com Website: www.aonhewitt.com/canada alcohol and drug use and the ac- cident evidence must be estab- lished, when no such threshold was contemplated by the Supreme Court in Irving. In the court's view, the board also made an error when it said it could only consider evidence demonstrating an alcohol and drug problem within the bargain- ing unit, not by non-unionized and contractor workers. Instead, the court found the workplace encompassed all workers — as did the Supreme Court in Irving — and they were integrated. Given the policy only applied to two specific oilsands opera- tions, and only workers in safety- sensitive positions, the inclusion of the whole workplace wasn't overly broad, said the court. " e focus on the workplace in general rather than more nar- rowly on members of the bargain- ing unit is also consistent with the obligations that employers have to ensure the safety of their entire worksite," said the court. " e court is further comfort- ed by the general workplace ap- proach because it allows the dan- gerous environment to be consid- ered in the context of the safety of everyone in that workplace." e court also found the arbi- tration board was too narrow in considering the evidence of inci- dents by Suncor workers. Most of the alcohol and drug-related inci- dents involved contractor workers or non-union employees, so the court didn't use them as a basis for its decision. However, the test for deter- mining a problem should include the entire workplace for safety reasons. is raises the number of incidents from 12 by Suncor unionized employees to 2,276 at the Suncor worksites between 2003 and 2013. "By focusing only on the bar- gaining unit, the majority (of the arbitration board) expressly ex- cluded consideration of relevant evidence," said the court. "(It) ignored evidence pertain- ing to some two-thirds of the individuals working in the oil- sands operations. Neglecting this evidence gives rise to a reasoned belief on the part of this court that the (board) misunderstood the evidence in a manner that af- fected their decision." The appeal court quashed the arbitration board's decision against Suncor's alcohol and drug testing policy and remitted the case back for arbitration by a fresh panel. For more information see: •Suncor Energy Inc. v. Unifor, Lo- cal 707A, 2016 CarswellAlta 921 (Alta. Q.B.). •Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Pa- per Ltd., 2013 CarswellNB 275 (S.C.C.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. 'Evidence misunderstood' SUNCOR < pg. 5 en, the whole employment standards piece came into play, said Forsyth. at was for hiring new people with disabilities, but also encouraging existing em- ployees to disclose if they have a disability. "It kind of removed the stig- ma," said Forsyth. "People are now coming forward that are employed that may have had dys- lexia or a learning disability and have never disclosed it in 25 years. Now, they're comfortable, they're educated and they know that they can get some accommodations if they wish." Education key A strong focus on the education piece is critical in making work- places accessible and accommo- dating — both for the public they serve and for employees, said Forsyth. "At fi rst. it was only for those people that dealt with the public, and now they've included ev- eryone. And I think that's really important because we're seeing a cultural shift, we're hiring more people with disabilities and, of course, more people are disclos- ing that they have disabilities. So it's not just the public that are the people with the disabilities, it's the internal staff (as well)," she said. "You may have an employee with a disability, and now you're going to be able to know what verbiage to use, using that person- fi rst language, and dealing with them in a more appropriate man- ner that respects their dignity and independence." Most people can relate to all of this because they've got aging parents, or they've got friends and family who are people with disabilities, she said. And it's very likely the offi cial statistics vastly underestimate the proportion of people with disabilities in Cana- da, she said, because people often don't self-identify as a person with a disability. "When StatsCan sends out their census form for us to fi ll in, it's just a check box — 'Are you a person with a disability?' And some people don't like to disclose they have a disability, and other people don't see themselves as being disabled." e main thing to know about disability is the only real common factor is diff erence, said Jutta Tre- viranus, director of the Inclusive Design Research Centre at OCAD University in Toronto. " ere is no sort of cohesive or common factor, and so the type of design that individuals with disabilities are worst served by is a one-size-fi ts-all solution," she said. "Anyone can experience a dis- ability. If you think about a lec- ture where you have a number of individuals listening to the lecture, the person who's blind is probably less disabled because they can hear the lecture… but the person sitting beside them who hasn't read the background material or doesn't speak the lan- guage very well may be in a more disabling position than the per- son who is blind. "Disability is a relative thing, so it's the responsibility of the de- signer to ensure that they design according to the needs of each individual." ere are also the spillover ef- fects — that is, whatever you do within an organization to ben- efi ts persons with disabilities will benefi t all of your employees, said Treviranus. "In terms of investments in making a better workplace, any- thing that is intended to improve the workplace to therefore in- crease productivity… the best in- vestment and the greatest return on your investment will be if you address accessibility." Diverse workplace – and workforce The more that employers and employees are educated around people with disabilities, the bet- ter and more informed decisions they can make when it comes to shaping the workplace and the workforce, said David On- ley, Ontario's special advisor on accessibility. "Employers should consider hiring people with disabilities in order to increase their profi ts — (that's) the bottom line. It is a business case, it is a business case that's not well-understood, but once the facts are introduced on the basis of multiple case studies and surveys, the evidence is abso- lutely incontrovertible," he said. "Most employers who end up hiring employees who have a range of disabilities end up in- creasing their productivity. It seems counterintuitive, but it happens. e productivity is in- creased by hiring people with dis- abilities because the job retention rate is higher, the absenteeism rate is lower. "Again, counterintuitive — but the facts are the facts." e evidence in favour of hiring persons with disabilties is well- documented and long-standing, and it's there for anyone who takes the time to look, he said. "When the federal panel on em- ployees in the workplace with dis- abilities was completed in January of 2013, the report demonstrated through dozens of case studies all across Canada — from companies that were very big and companies that were very small, medium- sized, through multiple areas of the marketplace — that, without exception, productivity increased and therefore the bottom line im- proved. Productivity was higher and therefore profi ts were higher," said Onley. "Good business leaders look at all of the information, look at the factual information, and don't just trust their instincts or what their fi rst impression would be." Yet many employers still pos- sess misplaced fears around hir- ing persons with disabilities, he said. " at is the biggest barrier fac- ing people with disabilities, and that is that people with disabilities who are going in for job interviews are faced with a kind of disabili- phobia on the part of employers who are fearful of higher absen- teeism and lower job retention. ese are myths and mythologies that have been part of the market- place, sadly, for decades. But once you delve into the studies, once you fi nd out what the facts are, it helps employers get past that fi rst impression about a person with a disability," he said. "Employers that get past that are rewarded for it, and they're rewarded in fi nancial terms." Greater accessibility helps with productivity "People are now coming forward who are employed who may have had dyslexia or a learning disability and never disclosed it in 25 years." TRAINING < pg. 1

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