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Labour & employment law column by Robert Smithson

Tug-of-War Over Accommodating Family Status

While it would be foolish to ignore religion, gender, and age as potential grounds for discrimination complaints, employers are presently struggling on another front. So-called “family status” discrimination complaints seem to be the growth area in today’s human rights world.
British Columbia, along with other provincial and federal jurisdictions in Canada, prohibits employers from refusing to employ (or otherwise discriminating against) a person regarding employment because of the person’s “family status”. What the vague term, “family status”, means in the employment context is gradually becoming clearer.
Generally speaking, the “family status” ground of discrimination has been used to prevent employers from altering a term or condition of employment due to the parental obligations of employees. The “family status” ground can also cover other family-related situations, but parenting obligations seem to be the most frequent instance.

Paying Canada's Debt to War Veterans

One statistic I saw recently indicated that 60% of Canada’s war veterans are not receiving the full range of benefits to which they are entitled. That suggests to me that there must be a lack of awareness and understanding of the full range of available benefits.
Veterans Affairs Canada is our government department through which the benefits tailored specifically for our veterans are administered. 
It offers services and benefits to qualified veterans, Canadian Forces members, serving and discharged members of the R.C.M.P., certain civilians, and their families.
Not having really ever given much thought to what these benefits might be, I paid a visit to the Veterans Affairs website (
My initial reaction, upon accessing the home page and clicking on “Veterans Services”, is that there is a dizzying array of available benefits and services. The permutations and combinations of eligibility seem, at first glance (and all my subsequent glances), to be both endless and highly impenetrable.

"Ma Chouette" Remains Unidentified (For Now)

When Daniel Leblanc was publishing stories in the Globe and Mail newspaper relating to the federal sponsorship scandal, he nicknamed one of his confidential sources “Ma Chouette” (“My Sweetie”). Thanks to a recent Supreme Court of Canada decision upholding the confidentiality of the identity of media sources, “Ma Chouette” will remain unidentified, for now.
The case being heard by our highest court pitted Montreal media company Le Groupe Polygone Editeurs Inc. against the Globe and Mail and Mr. Leblanc. Le Group Polygone is one of a number of companies from whom the Attorney General of Canada sought to recover millions of public dollars paid to them by the federal government under the sponsorship program.
Leblanc, relying on his sources, wrote a series of articles about the sponsorship program, alleging the misuse and misdirection of federal funds. Le Groupe Polygone sought to force Mr. Leblanc to reveal the identity of his key source.
The Quebec Superior Court ordered Leblanc to answer questions about his sources but Leblanc refused to identify the one he code-named, “Ma Chouette”.

Marking the Passing of a Legal Giant

When it comes to telling the stories arising out of the workplace, generally the lawyers take a back seat. Once in a while, however, a lawyer who has had a dramatic impact becomes the story.
James Neal was born in 1929 in Oak Grove, Tennessee. He died in a Nashville hospital this past week at the age of 81.
In between, he became a key figure in many American legal proceedings which, directly or indirectly, had their roots in the workplace (and particularly in alleged work-related misdeeds).
In 1964, Neal was a special assistant to U.S. Attorney General Robert F. Kennedy. In that role, he won the U.S. government’s first conviction against the infamous President of the International Brotherhood of Teamsters, Jimmy Hoffa.

Protecting Late Night Retail Employees

According to WorkSafeBC, robbers do not select their targets randomly but, instead, consider environmental factors in choosing which stores to rob (they tend to choose targets which reduce the risk of being caught and which present the greatest reward). Businesses can, therefore, reduce their risk of robbery by eliminating those characteristics which make their site attractive to thieves.
These seemingly logical premises support the 2008 amendments to B.C.’s Occupational Health and Safety Regulations. Those amendments were introduced to protect the health and safety of workers who work alone in retail premises, such as gas stations and convenience stores, late at night.
The amendments apply to employers who have workers who are working alone or in isolation in retail premises between 10:00pm and 6:00am. These employers must develop written procedures for handling money and the workers must be trained in these procedures. 

Covenant For Less, Get More

I’ve written many times on the topic of the unpredictable impact of covenants restricting employees’ post-employment activities. What is certain about such covenants is the value of adhering to the “less is more” rule.
Generally speaking, in the employment context, post-employment restrictions on an individual’s conduct are presumed to be unenforceable. That is the result of the fact that free labour mobility is a matter of public policy.
In practice, that means that (with some limitations) individuals can move on to ply their trade wherever, and with whomever, they choose. That includes doing so with a competitor of the former employer.
Businesses, on the other hand, have a private interest in limiting competition and some seek to bind their employees by way of various restrictive covenants. This interest in eliminating competition can drive employers to impose covenants which are unreasonable in the circumstances.

In The Human Rights Concept, Perception Is Reality

It may seem odd that an employer can discriminate against an employee based on a mental or physical disability when the employee doesn’t actually have a disability. It is, however, a legal concept which seems to make good sense in practice.
In effect, an employer who deals with an employee as if he or she suffers from a disability is treated, for the purposes of human rights law, as it would be if the employee does have a disability. Though it may be difficult to imagine why an employer would do that, this isn’t a particularly rare occurrence.
This concept has perhaps arisen most frequently in relation to mandatory drug testing imposed on employees. Such drug testing policies effectively treat employees as if they are drug dependent (which is a disability) and are likely to attend at work in an impaired state.
The great majority of employees are, of course, not addicted to drugs. However, by imposition of a mandatory drug testing policy, the employer presumes or perceives them to be addicted.

Dress Code Complaint Reveals Societal Cleavage

A Vancouver bartender named Karolina Bil has alleged gender-based discrimination against the owners of the Shark Club bar. Her complaint reveals the cleavage separating who we are as a society from who we, perhaps, wish we could be.
Ms. Bil alleges the club has a strict dress code for female employees including high-heeled shoes, miniskirts, shirts exposing cleavage, and hair and makeup aimed at achieving “class and sex appeal”. Her complaint states that she was too afraid to discuss the uniform issue with representatives of her employer.
In her complaint, she also alleges that it was made clear to her that her job was to talk to, and entertain, the customers at the bar. She described customers inappropriately propositioning her and stated that it was as a result of the style of dress she was required to wear.

Alcohol and Employees Are A Poor Mix

Each year, around this time, I dedicate a column to the topic of the heightened risk of injuries resulting from alcohol consumption at work-related events. While accidents arising out of these circumstances are seemingly few, the ramifications can be quite substantial.
Canadian court cases have firmly established the employer’s duty of care to take active steps to prevent injuries as a result of its employees’ alcohol consumption. If banning alcohol from staff events altogether isn’t satisfactory, there are many steps the employer can take towards reducing the likelihood of an accident.
Among other things, employers may implement a policy governing service and consumption of alcohol at company events. The first objective of such a policy is to put employees on notice that staff events are not an excuse for consuming alcohol to the point of posing a danger to themselves and others.

Sometimes An Apology Is Sufficient

Columns like this one, which highlight large awards of damages in employment cases, might leave the impression that money is the only way to solve workplace disputes. Now and then, a decision comes along which demonstrates that an old fashioned apology may be sufficient.
According to a recent B.C. Supreme Court decision, Ismaeil Karbalaeiali worked as a tour bus driver and tour coordinator for the Vancouver Trolley Company. He was a valued employee and his relationship with his employer was good although he did have ongoing interpersonal problems with its operations manager.
In early 2008, Karbalaeiali saw a picture on the employees’ “humour board” which depicted a person’s buttock with a satellite map of the world imposed upon it. The Middle East was situated generally in the area of the anus and the caption read, “No wonder the Middle East is in deep shit”.


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