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Labour & employment law column by Robert Smithson

Score One Point For Common Sense In The Human Rights Setting

The B.C. Court of Appeal recently upheld the premise that perceiving a person to not have a disability does not constitute discrimination. It’s amazing, to me, that this issue ever actually reached our Court of Appeal.
In 2004 Rex Yuan was involved in a traffic accident. Another vehicle struck the rear of Yuan’s vehicle while he was stopped at a red light.
Yuan made a claim for personal injuries with the Insurance Corporation of British Columbia (ICBC). He asserted that, as a result of the accident, he suffered soft tissue injuries to his neck and shoulder.
Because the other vehicle was determined to have been traveling at a very low speed when it struck Yuan’s car, his claim was adjudicated pursuant to ICBC’s low velocity impact (LVI) guidelines. Those guidelines effectively create a presumption that a low velocity accident victim is less likely to sustain injuries. 
As a result of its scrutiny of the circumstances of Yuan’s accident, ICBC rejected his claim. Yuan responded by filing a complaint against ICBC of discrimination pursuant to the B.C. Human Rights Code.

Canada Pension Plan Changes Coming for 2012

One of the primary aspects of most Canadians’ planned retirement income is Canada Pension Plan (CPP) retirement benefits. Effective in 2012, the CPP will be implementing a series of changes to how those benefits are calculated.
Bill C-51, Parliament’s legislation implementing the federal budget, received royal assent on December 15th. The changes it proposes will, among other things, enable some Canadians to combine pensions and ongoing income from work.
There are four main changes headed Canadians’ way as a result of the passage of Bill C-51.

E.I. Changes Blur Line Between Employees and Contractors

One of the factors marking the line between employees and independent contractors has been eligibility for employment insurance (EI) coverage. As a result of changes to federal legislation, the line just became somewhat more blurry.
Historically, only employees were eligible for EI coverage. The risk of not having that aspect of the social security net to fall back on was just one of the many risks of being an independent contractor.
In December, the Fairness for the Self-Employed Act (who says government isn’t warm and fuzzy?) was passed. It permits self-employed persons to opt into the EI program to receive special benefits.

New Year's resolutions for human resources

Now that we’re into the first January of a new decade, it’s as good a time as any to assess how we perform our jobs on a day-to-day basis. Human resources managers are no different, and here are my five suggestions of things they might consider trying in 2010.
First, stop working for employers who don’t share your personal philosophy of employee relations. 
The degree to which an employee “fits” in his or her workplace will determine, to a significant degree, his or her likelihood of success. This is perhaps true for human resources managers as much as for any other category of employee. 
I frequently deal with human resources people who seem uncomfortable with the way their employer deals with its employees. These people should consider looking for an employer which better matches their own approach.

Video Evidence of Employee Conduct Is Here To Stay

The recent Report Following a Public Interest Investigation respecting the death of Robert Dziekanski relied heavily on video evidence produced by a bystander. I’m thinking employers should get accustomed to facing such evidence of the actions of their staff.
Mr. Dziekanski died while in the custody of members of the RCMP in the early morning hours of October 14, 2007, in the international arrivals area of the Vancouver International Airport. The critical video was shot by a witness, Mr. Paul Pritchard.

Maybe Human Rights Aren't Exportable

Any time a Canadian Prime Minister visits China, to advance economic issues or otherwise, the topic of human rights is expected to be on the table. This seems to be because, to many, it is unacceptable for Canada to engage in relations with countries which have a questionable human rights record.
Prime Minister Harper recently stated, while in China, “Our government believes, and has always believed, that a mutually beneficial economic relationship is not incompatible with a good and frank dialogue on fundamental values like freedom, human rights and the rule of law.” 
This is probably what Canadians expect our Prime Minister to say. But is it a productive strategy to try to advance the cause of human rights at the government-to-government level?

Office Party Season Is Time To Control Alcohol Consumption

It’s the time of year when good boys and girls look forward to gifts and their parents anticipate the seasonal office party. Controlling alcohol consumption at the office party substantially increases the odds of those parents, and their employer, having a happy and healthy holiday season.
The first thing for employers to address is the risk of injury to an employee – or someone else – as a result of alcohol consumption. 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 to reduce the likelihood of an accident. 

Triangle Fire Was A Seminal Moment For Workplace Safety

On a Saturday afternoon in August, 1911 in New York City, hundreds of female garment workers prepared to head home at the end of their long workday. 146 of them would not make it out of the workplace alive.
Their horrendous deaths would forever link New York’s Triangle Shirtwaist factory with the struggle for workers’ rights. Their memory would trigger a new era in workplace safety regulation.
The Triangle Shirtwaist Company was located in the top 3 floors of a 10 story building near New York’s Washington Square. Triangle produced women’s blouses (which, at the time, were referred to as “shirtwaists” or “waists”).
Many of the garment workers were teenaged (as young as 14), immigrant females earning less than $400 per year. They worked a 60-70 hour week with shifts as long as 14 hours per day.

The Toughest Job Of All

At this time of year, when we pay tribute to fallen members of our armed forces, I find myself thinking about what their workplace must have been like.  Theirs is, we should all remember, the toughest job of all.
There are, of course, many dirty, perilous occupations out there. And for every one there are people who – for who knows what reason – are willing to subject themselves to it day after day.
These days we can, just by turning on the television, watch many such people facing harsh and risky working conditions. And we can wonder, what makes them do it?
But having a job in which there are occupational hazards is nothing compared to the perils faced each day by members of our armed forces. Regardless of the time and the context, and regardless of whether the action in which they have been involved was peacekeeping or an offensive action, they have faced the most overwhelmingly difficult working conditions.

Paranoia, Pandemonium and Pandemics

Of all the topics human resources professionals have to wrestle with, none is more compelling at the moment than the H1N1 flu pandemic. It presents, at least potentially, a workplace dilemma which few companies have experience in solving.
The challenge faced by employers is in deciding how to address a situation which has the potential to temporarily decimate their work force.
What position should they take on whether people should be coming to work if they are not feeling well? How do they balance the need for a healthy workforce with the risk that some people will exploit the opportunity to take time off? Do they automatically send home anyone diagnosed with the flu?
How do they distinguish between the seasonal flu and the H1N1 virus (and does that distinction matter)? Can they somehow compel employees to accept the vaccination? What steps can they take to try and fill the temporary holes which the flu will create in their workforce?


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