The Evolving Law On Overlapping Employment

Regulatory Regimes

Navigating the Divide Between Labour Standards, Human Rights, Workers’ Compensation, Labour Relations, and Occupational Health and Safety, and the Common Law

Introduction

ه Employers must know and apply several different legal regimes (areas of law)

ه Each legal regime has hundreds of rules and requirements ه Legal regimes overlap and conflict at times, ie. more than one (or

two) legal regimes can apply to a workplace problem ه Failure to manage overlap can result in increased liability,

inefficiencies, multiple-litigation, and unnecessary costsه Tool to manage overlap – purposive, principled approach

described belowه First determine which legal regimes may apply to a workplace

dispute by assessing if the issues fall within one or more of the purposes of the legal regimes

ه Manage the overlap by using the conflict rules and options within the applicable legal regimes

Sources of Law

ه Common law

ه Statute law

Common Law

ه Judge-made lawه Stare decisis

ه Supreme Court of Canadaه Saskatchewan Court of Appealه Saskatchewan Court of Queen’s Benchه Saskatchewan Provincial Courtه Extra-jurisdictional Courts*

Common Law

ه Law of Master/Servant

ه Non-union employment situations

ه Lawsuit brought in court

ه Wrongful dismissal

ه Constructive wrongful dismissal

ه Reasonable notice or pay in lieu (severance)

PURPOSE OF COMMON LAW – freedom of contract and enforcement of contract

Statute Law

ه Regulatory and Enabling Statutesه Supplemented by judicial interpretation

Labour Standards

ه The Labour Standards Actه Freedom of contract works best when parties are equal

in bargaining strengthه Employers are usually the stronger of the bargaining

partnersه Minimum standards needed to prevent employer from

abusing the employment contract

Labour Standards

ه Labour Standards Branchه Deals with issues such as:

– Hours of work– Overtime– Wages– Vacation– Maternity and Parental leave – Minimum pay in lieu of noticePURPOSE OF LABOUR STANDARDS – Minimum employment

standards to prevent employer abuse of power

Labour Relations

ه The Trade Union Actه Instead of compensating for the unequal bargaining relationship, this

regime seeks to equalize the bargaining positionsه The Construction Industry Labour Relations Act, 1992ه Federally-governed workplacesه Saskatchewan Labour Relations Boardه Duty to Collectively Bargain in Good Faithه Disputes involving unionized employees, collective bargaining

agreements, etc.ه Disputes may be between employee and employer, union and employer,

or employee and union

Labour Relations

ه Collective Agreement

ه Issues in a unionized workplace adjudicated by an arbitrator

PURPOSE OF LABOUR RELATIONS:strengthening bargaining position of employees

by requiring collective bargaining

Occupational Health and Safety

ه The Occupational Health and Safety Act, 1993ه Occupational Health and Safety Branchه Duty to provide healthy and safe workplaceه OHS Workplace Committeesه Harassment Complaintsه Refusals of unsafe work, hazardous substances,

safe work environments, and workplace accidentsPURPOSE OF OH&S: require the employer to

maintain a healthy and safe workplace

Human Rights

ه The Saskatchewan Human Rights Codeه Saskatchewan Human Rights Commission

– Investigates complaints of discrimination

ه Saskatchewan Human Rights Tribunal– Hears and decides discrimination inquiries

Human Rights (cont.)ه Protected Categories

– Age– Ancestry – Family status– Marital status– Mental disability– Receipt of public assistance– Religion– Sexual harassment– Sex/pregnancy– Sex/other– Sexual orientationPURPOSE OF HUMAN RIGHTS: prevent

discrimination and encourage barrier free workplace

Workers’ Compensation

ه The Workers’ Compensation Act 1979ه Bars civil actions (including grievances) against employers for workplace

injuriesه Workers’ Compensation Board

– In cases of injury or death arising out of, and in the course of, employment, provides financial protection, medical benefits and rehabilitation services to injured workers and their dependents

– Collects assessment premiums from employers and makes appropriate payments from a common fund

PURPOSE OF WCA: compulsory no-fault insurance system as the exclusive compensation system for workplace injuries

Areas of Overlap & Conflict

ه Labour Standards & Common law ه Labour Standards & Labour Relationsه Human Rights & Labour Relationsه Human Rights & Occupational Health and Safetyه Workers’ Compensation & Personal Injury Suitه Workers’ Compensation & Labour Relationsه Occupational Health and Safety & Workers’

Compensation ه Human Rights & Workers’ Compensation

Why is it Important?

ه Different regimes have different remediesه Despite overlap, some areas where a body does

not have jurisdictionه Sometimes there’s an ability to pursue in multiple

forums, sometimes not

Managing the Overlap

• Purposive approach – tool to help navigate the overlap – understand the purposes of each legal regime– assess the workplace issue - does it falls within

one or more of these purposes?– once the applicable legal regimes have been

flagged, seek out the rules (including conflict rules and options) within the applicable regimes

– Your counsel can help

Scenario #1

Facts:

The two waitresses and bar room employees were told that their services were no longer required and not to come into work anymore.

Questions:

Do the claimants have any legal recourse?

If “yes” then what recourse?

If “no”, why not?

Scenario #1Result:

Following their termination, both of the respondents successfully made a claim under The Labour Standards Act, R.S.S. 1978, c. L-1, as am. (the "Act"), for pay in lieu of notice as required by s. 43 of the Act.

Scenario #1Facts Part II:

Subsequent to their pursuit of a remedy under the Act, the respondents commenced an action in this court for wrongful dismissal, claiming breach of their employment contracts in thatthey were dismissed without notice and without just cause. The applicant seeks to have their claim in this regard struck on thebasis of issue estoppel.

Question:If the claimants successfully sue under Labour Standards, can they also sue for common law reasonable notice?

Scenario #1

Tarr v. Prairie Oasis Ltd. (c.o.b. Kipling Motor Inn), [1996] S.J. No. 74 (Court of Queen’s Bench)

At paragraph 24:“As the claims for damages for wrongful dismissal are not one and the same as the claims for pay in lieu of notice pursuant to section 43 of the Act, the first element of issue estoppel as set forth in Sherwood v. Burston has not been satisfied. I also note that a claim for statutory pay in lieu ofnotice does not encompass other heads of damage which may be available in an action for damages for wrongful dismissal, such as loss of benefits.”

- MacIntyre J. in allowing the claimants suit at common law despite the successful LabourStandards complaint

Scenario #2Facts:

Club manager was summarily fired about two weeks after hire when it was learned that she was married to a penitentiary inmate who had been convicted of murder. Several of the Club members were corrections and police officers. They feared their safety would be compromised if the complainant overheard casual conversation and transmitted it to her husband.

Questions:Which of the bodies mentioned might have jurisdiction to hear the matter?Does the matter violate any Acts or common law tenets?If so, which tenets or provisions does the above scenario violate?

Scenario #2

Saskatchewan (Human Rights Commission) v.Prince Albert Elks Club Inc., 2002 SKCA 106 (Saskatchewan Court of Appeal)

At paragraph 54:“[The complainant] was a victim of prejudice and unfair discrimination and the principle at stake is an important one. The Elks Club fired her not because of who she is or her abilities but because of the person to whom she is married. ‘Marital status’ can refer to being or not being married or how you live your life together with your life partner; or it can beto whom you are married, which is the issue raised in this case.”

- Vancise J.A. in upholding a finding of discrimination by the Human Rights Inquiry

Scenario #3Facts:

Teacher with 20 years experience was assigned to a modular classroom. She began to experience persistent health problems, which included fatigue, headaches, nosebleeds, and severe cough.Her family doctor had difficulty providing a specific diagnosis.Teacher suspected that the cause of her health problems arose from her modular classroom, principally because her health improved when she was away from the classroom. She requested that the School Board accommodate her by moving her to another building or classroom. School Board told her that this was not possible and did not agree that the classroom contained a contaminant. She was found a position for Mrs. Lewis in anotherschool.

Scenario #3Questions:

Which areas of the law might apply and on what grounds?What steps might you suggest be taken in this matter?

Scenario #3

Lewis v. Regina School Division No. 4, 2003 SKQB 344 (Queen’s Bench)

In response to charge of unsafe work environment (at paragraph 39):“[Occupational Health and Safety] Regulation 308 commences with the words "Where a chemical substance or biological substance is present at a place of employment . . .". There was no evidence that any chemical or biological substance was present in the modular classroom in which Mrs. Lewis taught. Thus, there was no obligation on the [School] Board, as set out in Regulation 308(b), to assign Mrs. Lewis ‘to less hazardous alternate work if it is available’.”

– Matheson J.

Scenario #3

Lewis v. Regina School Division No. 4, 2003 SKQB 344 (Queen’s Bench)

In response to allegations of discriminatory behavior:“To be a prohibited discriminatory action, as set out in s. 27, not only must the action have adversely affected the worker but also have been taken because the worker has done one or more of the listed acts. If it is established that the employer engaged in discriminatory action against a worker, it must also have been established that the reason therefore was because the worker sought to enforce the Act or the Regulations or refused to work. Under such circumstances, the employer could not have taken the discriminatory action unknowingly, or innocently.”

– Matheson J. in determining that the employer did not discriminate per the Occupational Health and Safety Act,1993

Bonus Round

Fact Scenario:An employee alleged that she had been the victim of harassment in the workplace and sexual harassment by one of her supervisors. She sued both her employers and the alleged harasser in court. In the lawsuit she sought both compensatory and exemplary remedies, based on a violation of the Charter of Human Rights and Freedoms. The employee subsequently obtained compensation under Workers Compensation legislation for having suffered an employment injury as a result of the same events.

Bonus Round – Questions

A. What issues of overlap apply?

B. What advice would you give in such circumstances?

C. What if the employee worked in a unionized workplace?

Bonus Round – Answers

Béliveau St-Jacques v. Fédération des employées et employés de services publics Inc. [1996] 2 S.C.R. 345

A. Workers Compensation legislation acts as a bar to civil actions in courts, including actions for civil liability and exemplary damages under the Charter. The Charter does not create a parallel compensation system and cannot authorize double compensation for a given fact situation.

B. The court stated at paragraph 136:[T]he arbitrator could not have awarded damages for the prejudice suffered as a result of the employment injury. The exclusion of a civil liability action also applies to the grievance arbitrator.

However, the court added:[…] it is not inconceivable that an arbitrator dealing with such a grievance in these circumstances could have ordered other remedial measures, such as reinstatement or reassignment, if the collective agreement so allowed.

Advanced Bonus Answers

Facts:

Female support staff at educational institution initiated identical human rights complaints alleging that the employer was not fulfilling a promise in the collective agreement to negotiate a pay equity scheme. The human rights complaints sought equal pay for work of equal value. The employees’ union had also filed an unfair labour practice application with the board and grievance. The union and the employer settled the grievance, but the employees refused to withdraw their human rights complaints

Possible Forums

i. The Labour Relations Board (based on an unfair labourpractice complaint under the Trade Union Act)?

ii. An arbitrator (based on a grievance under the collective agreement)?

iii. The Saskatchewan Human Rights Commission (based on a gender discrimination complaint)?

iv. The Director of Labour Standards?

v. Any combination of the above?

Advanced Bonus

University of Saskatchewan v. Dumbovic, 2007 SKQB 182The dispute was not ultimately resolved until four forums weighed in: LRB,

arbitration, human rights, and the court.ه The LRB decided not to hear the dispute but to defer the dispute to grievance

arbitration because the dispute related to the interpretation of the collective agreement.

ه Arbitrator. This matter proceeded by way of arbitration which ended up in an ongoing negotiation process between the union and employer. The pay equity issues were resolved between the union and both universities at the bargaining table. (The individual complainants, however, argued in court afterward that the settlement did not meet their satisfaction.)

ه Sask. Human Rights Commission and Tribunal: The Sask. Human Rights Tribunal attempted to ignore the employer/union settlement and ordered an Inquiry to determine if the employer was discriminating against the complaints by not paying them equal pay for work of equal value

Advanced Bonus Continued

ه Court: The employer applied to the court to quash the Human Rights Tribunal proceedings. The Court ruled that:

- There is no jurisdiction under The Saskatchewan Human Rights Code for the Tribunal to formulate the legal and regulatory structures necessary to bring about a regime of equal pay for work of equal value in Saskatchewan workplaces. Thus, no jurisdiction to adjudicate complaints seeking that remedy.

-The Legislature had provided the Director of Labour Standards with the authority to investigate equal pay complaints, and that nothing in the legislation indicated an intention on the part of the legislature to have both the Director of Labour Standards and the Chief Commissioner of the Saskatchewan Human Rights Commission to share concurrent responsibility for complaints of equal pay.

- The Court also suggested that it may be an abuse of process for a small minority in a bargaining unit to attempt to relitigate a matter that has been settled by the collective bargaining agent and the employer.

Note: For federally-regulated workplaces, section 11 of the Canadian Human Rights Codeconfers jurisdiction upon the Canadian Human Rights Commission to determine complaints about unequal pay for work of equal value (There is no equivalent legislative provision in Saskatchewan).

Suggestions and Tips

ه Keep in mind the purposes of each legal regimeه Consider the different responses available for each

regime, including the different conflict of laws options built into each regime

ه Consult a lawyer (ideally before there is a problem)

Shane R. Parker practices in civil and criminal litigation, with emphasis on employment, personal injury, real estate and insurance matters. He has been appointed to the Canada Pension Plan / Old Age Security Review Tribunal in the region of Saskatoon, is currently the Vice-President of St. Thomas More Lawyers’Guild Inc., and an active member of the Kinsmen Club of Saskatoon. Shane was a recent panelist at the Canadian Bar Association (Saskatchewan Branch) Mid-Winter meeting, and is a past Director of the Saskatoon Chapter of Saskatchewan Young Professionals and Entrepreneurs (SYPE).

David M. A. Stack is the Chair of the McKercher LLP Labour & Employment Law Group and practices in the areas of Civil Litigation, Administrative Law, Employment/Labour Law, and Corporate/Commercial Law. He has experience in all levels of court in Saskatchewan and has appeared in the Supreme Court of Canada. He has authored a number of articles, is a member of the National Human Resources Committee of the Kidney Foundation of Canada and is on the Board of Directors of the St. Thomas More Lawyers’ Guild of Saskatoon Inc. and the Professional and Community Advisory Board of Community Legal Assistance for Saskatoon Inner City Inc. (CLASSIC).

374 Third Avenue SouthSaskatoon, SK S7K 1M5 www.mckercher.ca