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Labour & employment law column by Robert Smithson

Taking steps to address workplace stress

If my practice is any indication, employment lawyers across this country are spending increasing amounts of time advising employers on dealing with stress in the workplace. That means human resource professionals are also dealing with these problems more frequently on a day-to-day basis.
The indicators that stress is affecting the workplace at an unprecedented rate are everywhere. More employees seem to be taking medical leaves in response to stress (whether it originates at work or at home). More media outlets seem to be carrying stories relating to employees’ reactions to a stressful workplace. And more courts, arbitrators, and tribunals seem to be adjudicating disputes involving a stress factor in the workplace.

When a political protest turns into a picket line

British Columbia is well known for its active unions, particularly in the public sector. It is in that sector that political protests against government policy have tend to germinate.
The right to freedom of expression (which includes the right to engage in political protests) is enshrined in the Charter of Rights and Freedoms but occasionally these so-called political protests take on the characteristics of a picket line. That’s when they can become illegal and, in the unionized context at least, can lead to claims for damages.
It is a complex and confusing issue, and B.C.’s Labour Relations Board must periodically wrestle with the dividing line between allowable political protests and illegal picketing.

Employers must accommodate all religious beliefs

By now it is a well-known element of employee relations that employers must accommodate employees’ religious beliefs. Few employers, however, are likely to have realized the scope of beliefs which attract this obligation.
As in all enumerated grounds set out in human rights legislation, the duty to accommodate religious beliefs requires positive steps on the employer’s part. While the employee must facilitate those efforts, the primary onus falls on the employer.
A recent arbitration decision in Ontario is indicative of the challenges employers can face in dealing with employees’ religious beliefs and affiliations. The arbitration was the result of a grievance arising from the termination of several employees.

Is B.C. Ferries contract the wave of the future?

Wow! That’s the first thing that came out of my mouth when I read Gary Mason’s story in the Globe and Mail describing the new B.C. Ferries collective agreement. In that agreement, the B.C. Ferry and Marine Workers Union have relinquished the right to engage in strikes.
Wow is right. Even more shocking is the news that the suggestion came from the union’s president, Jackie Miller. It’s hard to look at this as anything less than a seminal moment in the (always exciting) history of labour relations in British Columbia.
This new deal came out of a process entered into by B.C. Ferries and the union to settle hundreds of issues outstanding after the expiry of their last collective agreement in 2003. The parties submitted to binding arbitration on these hotly disputed issues and the arbitrator’s ruling has established a new framework for this acrimonious relationship.

Sometimes staying employed means accepting responsibility

The challenge of knowing what amounts to just cause for summary dismissal, and what doesn’t, can stymie employers and their lawyers alike. It can be extremely difficult to estimate how a court will react to allegations of misconduct (and the assertion that they amount to cause for summary dismissal).

In reality, all we can do is consider how previous situations have been handled by the courts and assess how similar circumstances might be viewed. It’s definitely more an art than a science.

That being the case, we are sometimes proven wrong in our assessment. That’s why I like to caution employers (and employees) that while 100% of litigants believe their case is going to be successful, 50% of those people are ultimately proven wrong.

A recent decision by B.C.’s Supreme Court is one which I’m certain I would have assessed incorrectly. It involved an employee, McGachie, and her refusal to acknowledge a mistake she had made in the course of her duties.


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