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HR
Compliance
Your Plain Language Guide to
Hiring, Firing, Human Rights, Benefits & Privacy
Volume 8 Issue 11
November 2012
DISCRIMINATION
New Gender Identity Laws & How to Comply
FEATURES
Discrimination
THIS STORY WILL HELP YOU
Deal with the most important new trend in employment discrimination—the
ban on gender identity discrimination
T
he most significant trend in human rights law right now is the emergence
of a new form of employment discrimination: gender identity discrimination.
This spring, Ontario became the most recent province to make it illegal for
employers to discriminate against job applicants and employees on the basis
of gender identity. This story will answer the 3 key questions HR managers need to be
concerned with:
1. What exactly is gender identity discrimination?
2. In what parts of Canada is it banned?
3. What must organizations do to avoid liability?
1
Gender identity: the new frontier
of discrimination law.
LAWSCAPE: Gender identity laws in
Canada (p. 3)
Model Nondiscrimination Policy (p. 4)
Progressive Discipline
1
How to use progressive discipline
to enforce safety, other work rules.
Model Progressive Discipline Policy (p. 10)
REGULARS
CONTINUED ON PAGE 2
DISCIPLINE & TERMINATION
How to Use Progressive Discipline to
Enforce Safety Rules
THIS STORY WILL HELP YOU
Prevent and, if necessary, defeat grievances and lawsuits over discipline for
safety infractions
T
here’s no point having safety rules unless you’re prepared to discipline employees
who disobey them. In fact, having rules you don’t enforce is in some ways
worse than having no rules at all. But discipline is risky business, especially if
the employee belongs to a union. Chances are, you’ll end up having to defend
your actions before an arbitrator or court. Luckily, there’s a strategy you can use to make
punishments stick if they’re challenged later on. Better yet, this technique can help you
straighten out wayward employees and avoid showdowns in the first place. The technique
is called progressive discipline and we’ll show you how to use it to enforce safety and other
workplace rules.
CONTINUED ON PAGE 9
HR Month In Review
Key legal changes and cases in each
province, territory and federally
5
Sex Harassment
11
Termination
12
Case of the Month: Senior
manager can keep job despite
slurring women
Winners & Losers: Is sleeping on
the job just cause for termination?
IN FUTURE ISSUES
Background Checking & Keeping Violent
People Off Your Payroll
Is Suspicion of Drug/Alcohol Use
Grounds for Testing?
Is Off Duty Conduct Grounds for
Termination?
When Does a Pay Cut become Grounds
for Constructive Dismissal?
HR W Compliance Insider
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hr compliance insider
Board of Advisors
1. What Is Gender Identity Discrimination?
Don’t confuse gender identity discrimination with gender discrimination, i.e., adverse treatment on the
basis of being a male or female, or with sexual preference discrimination, i.e., adverse treatment on the
basis of the gender individuals prefer to have sex with. Gender identity is something different. It refers
to the individual’s sense of being a man or woman, regardless of how they were equipped by nature.
There are 2 kinds of individuals in this category:
Hugh A. Christie
Gowling, Lafleur, Henderson, LLP
Toronto, ON
David S. Cohen, EdD
Strategic Action Group
Toronto, ON
Transgendered individuals are uncomfortable with or have doubts about the gender they were
biologically assigned. Transgendered individuals may or may not undergo hormone treatment or
gender change surgery.
Vicki L. Giles, LLB
McLennan Ross LLP
Edmonton, AB
Transsexuals have a strong and enduring feeling that they were born into the wrong sex. The term
“transsexual” is typically associated with people who’ve had gender alteration surgery or hormonal
transition without the surgery.
Maria McDonald, LLB
Dykeman Dewhurst O'Brien LLP
Toronto, ON
Ken Krohman
McKenzie Fujisawa
Vancouver, BC
2. Where in Canada Is Gender Identity Discrimination Illegal?
Discriminating against job applicants and employees because of their sex or sexual preferences is
banned in all 10 provinces, 3 territories and under federal human rights laws. But protection against
gender and sexual preference discrimination doesn’t necessarily extend to gender identity. That’s why
several jurisdictions have moved to change their law to expressly ban gender identity discrimination.
Greg McGinnis
Heenan Blaikie
Toronto, ON
Robert Smithson
Smithson Law LLP
Kelowna, BC
On June 17, 2012, Ontario became the third jurisdiction to add gender identity protection to its
human rights act—Manitoba and Northwest Territories are the other 2. The new Ontario law, known
as “Toby’s Law,” protects not just “gender identity” but “gender expression,” i.e., the clothing, hairstyle,
voice, body characteristics and other methods individuals use to express their gender identity.
R. Ross Wace
Wace & Associates
Mississauga, ON
HR
GENDER IDENTITY DISCRIMINATION CONTINUED FROM FRONT
Compliance
™
Two jurisdictions, Federal (Bill C-389) and BC, have proposed but not yet adopted bills that
would outlaw gender identity and gender expression discrimination. And Saskatchewan has issued
government guidance stating that it interprets its current laws banning gender discrimination as
applying to gender identity. (See LAWSCAPE on page 3 for a graphic illustration of the state of gender
identity discrimination law across Canada.)
Your Plain Language Guide to
Hiring, Firing, Human Rights, Payroll & Privacy
Insider Says
Managing editor:
GLENN S. DEMBY
In the U.S., the federal Equal Employment Opportunity Commission (EEOC) recently issued a ruling
interpreting the ban on sex discrimination as applying to transgendered individuals.
CONTRIBUTING WRITERS:
PAULA SANTONOCITO
SHERYL SMOLKIN
What Must You Do to Avoid Gender Identity Discrimination?
Addressing identity discrimination is essential for employers in Ontario, Manitoba, Northwest
Territories or Saskatchewan, and highly advisable in all other jurisdictions.
PRESIDENT AND CEO: ROB RANSOM
HR Compliance Insider is published by Bongarde Holdings
Inc. and is intended for in-house use only – commercial
reproduction is a violation of our copyright agreement.
Gender identity discrimination means refusing to hire or otherwise treating individuals unfavourably
because of their gender identity. The law also requires employers to make reasonable accommodations
for individuals with gender identity issues which could include things like exemptions from dress code
requirements or giving biological males access to female wash rooms (or vice versa).
This publication is designed to provide accurate and
authoritative information on the subject matter covered. It is
sold with the understanding that the publisher is not engaged
in rendering legal, accounting or other professional services.
If legal or other expert assistance is required, the services of
a competent professional should be sought.
R
NEWSLETTE
FOUNDATIO
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EXCELL
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WINNER
RS
Publications Mail #40065442.
As with other forms of discrimination, the key to avoiding gender identity discrimination is to
promote a culture of inclusion and educate all members of your workforce. The centerpiece of this
effort should be a written non-discrimination policy like the Model on page 4 below that includes:
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77 A statement extending the Policy to all members of the organization regardless of position
and employment status (Sec. 1);
CONTINUED ON PAGE 3
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GENDER IDENTITY DISCRIMINATION CONTINUED FROM PAGE 2
77 A definition of “gender identity,” “transgender” and other terms
77 The disciplinary consequences of violating the Policy (Sec. 8); and
77 The organization’s commitment to provide education and training
clarifying what and whom the Policy covers (Sec. 2);
77 A statement of organization principles, including commitment to
inclusion and lack of tolerance for discrimination on basis of gender
identity (Sec. 3);
77 A provision allowing employees to keep their gender identity or
sexual preferences confidential (Sec. 4);
77 Steps the organization takes to make accommodations and ensure
equality of the transgendered (Sec. 5);
77 An express ban on discrimination and harassment based on gender
identity (Sec. 6);
77 What individuals covered by the Policy can do if they feel they’ve
been discriminated against (Sec. 7);
(Sec. 9).
Conclusion
Protection against gender identity discrimination is the way of the future.
And even if you’re not in Ontario, Manitoba, Northwest Territories or
Saskatchewan where the protections are currently in effect, don’t be
surprised if your province adopts them soon—either via new legislation
as in Ontario or by interpreting its existing gender discrimination laws as
applying to gender identity as in Sask. Adapting the Model Policy on page
4 for your workplace should go a long way in protecting your organization
from gender identity discrimination and the liability it can lead to. 
GENDER IDENTITY DISCRIMINATION LAWS IN CANADA
KEY:
Human rights laws ban gender identity discrimination
Gender identity discrimination bill proposed but not adopted
Don’t currently ban and haven’t proposed ban on gender
identity discrimination
Interpret ban on sex discrimination as applying to gender
identity discrimination
KEY
YT
NT
NU
BC
AB
NL
SK
MB
QC
PE
ON
NB
NS
NOTES:
77On Feb. 9, 2011, federal bill C-389, banning gender identity and gender expression,
has passed House of Commons but still pending in Senate
77Ontario bans not just gender identity but gender expression discrimination
November 2012 © Bongarde • www.hrinsider.ca
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GENDER IDENTITY DISCRIMINATION CONTINUED FROM PAGE 3
Adopt Policy Banning Gender Identity Discrimination
Adopting a gender identity nondiscrimination policy—either freestanding or an addition to your current general nondiscrimination policy—is essential if you’re in
Ontario, Manitoba, Northwest Territories and Sask, and highly advisable if you’re anywhere else in Canada. The Model below, which comes from an Ontario law
firm, is an excellent example that you can modify for your own workplace.
ABC COMPANY
Policy on Gender Identity Discrimination
1. SCOPE
This Policy applies to everyone working for ABC Company, including directors,
members and employees, whether part-time, full-time or casual, regardless of
position including secretarial, support, professional and administrative staff and
contract and temporary employees, as well as to volunteers and independent
contractors.
2. DEFINITIONS
c. Procedures to limit access to confidential information that may reveal an
employee’s sexual orientation, spouse or gender identity will be adopted.
d. Pension plan and employment records, including, but not limited to, requests
for bereavement and parental leave, medical/dental insurance claims, nextof-kin declarations, beneficiary designations, inquiries about the extension
of benefits/pensions to a spouse, as well as resumés, academic transcripts,
and letters of reference, shall be kept confidential except where disclosure
is required by law.
“Gender identity” refers to those characteristics that are linked to an
individual’s intrinsic sense of self, based on attributes reflected in the person’s
psychological, behavioural, emotional, and/ or cognitive state. Gender
identity may also refer to one’s intrinsic sense of being a man or woman. It is
fundamentally different from, and not determinative of, sexual orientation.
e. Personal information disclosed to ABC Company shall be stored in a manner
so as to limit access to this information to those appointed under this Policy,
e.g., by keeping the information in a locked filing cabinet or in a computer
system accessed by password.
“Spouses” refers to 2 persons cohabiting in a conjugal relationship, whether
or not legally married to each other, and includes persons who are of the same
or opposite sex.
5. PROCEDURES FOR IMPLEMENTATION
a. ABC Company shall review all employment benefits and pension plan
policies on a periodic basis and shall ensure that all future policies adopted
by ABC Company are consistent with this Policy.
“Transgender person” means individuals who are uncomfortable with, or
who reject, in whole or in part, their birth assigned sex, including “transsexual
persons,” whether or not they’ve undergone sex reassignment surgery.
“Transsexual person” denotes an individual who lives fully as a person of the
sex opposite to that which the person was born.
“Transgender” refers to individuals who live some aspect(s) of their lives as
an individual of either sex and includes individuals who are born intersexed, or
who crossdress.
3. STATEMENT OF PRINCIPLES
a. Discrimination in employment on the basis of sex, which includes gender
identity, gender expression, sexual orientation, marital status, same-sex
partnership status and/or family status is illegal under the Ontario Human
Rights Code (Code).
b. ABC Company recognizes that discrimination based on gender identity and/
or gender expression is illegal and that when interacting with transgender
individuals, it is appropriate to ask how the person prefers to be identified.
c. ABC Company shall not contract with providers of employment benefits who
administer their plans in a discriminatory manner based on sexual orientation
or gender identity or expression.
4. CONFIDENTIALITY
a. ABC Company is aware that individuals may choose to keep confidential
their gender identity and/or experience as a transgender person so as to
avoid stigmatization, discrimination and harassment.
b. ABC Company understands that sensitivity in the administration of
employment benefits and pension plans is necessary so as not to expressly or
inadvertently reveal the sexual orientation or gender identity of an individual
who may wish to keep this information private.
November 2012 © Bongarde • www.hrinsider.ca
b. ABC Company will accommodate the needs of transgender persons
regarding the use of washrooms and gender-specific facilities as required
by the Code.
c. ABC Company’s Dress Code policy will respect the rights of transgender
persons.
6. BAN ON DISCRIMINATION & HARASSMENT
ABC Company is committed to creating a work environment in which gay,
lesbian, bisexual and transgender individuals who work at ABC Company are
treated with respect and are included in all aspects of ABC Company’s social
culture.
7. RECOURSE
a. Should an individual believe that benefits are being conferred or administered
in a discriminatory manner, ABC Company encourages him/her to report it
to [insert the title of the position responsible for handling complaints], who
shall do what is necessary to address the situation. All complaints or inquiries
made under this section will be confidential.
b. Nothing in this Policy precludes an individual from seeking assistance or filing
complaints under other avenues of recourse.
8. DISCIPLINE
Individuals found to be in violation of this Policy will face disciplinary
consequences that ABC Company’s HR department and management deems
appropriate up to and including termination in appropriate cases.
9. EDUCATION & TRAINING
As an extension of its commitment to a discrimination and harassment-free
workplace, all current and future individuals who work at ABC Company will be
informed of the Policy on equal benefits for gay, lesbian, bisexual, transgendered
and other protected individuals under this Policy.
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HR Month in Review
A roundup of important new legislation, regulations, government
announcements, court cases and arbitration rulings.
FEDERAL
LAWS & ANNOUNCEMENTS
CASES
Employment Insurance
Aug. 7: The government proposed new EI special benefits of up to 35 weeks for parents who have to take time from work to care
for a child with a life threatening injury or illness, starting in June 2013. Meanwhile, the new EI Working While on Claim pilot which
limits cuts in EI benefits of recipients who work to no more than 50%, officially began.
Termination Letter Is
Awful but Employee Still
Deserves to Be Fired
A TV station had ample
reason to dismiss a support
rep—physically fighting with
a co-worker, lousy attitude,
poor performance and
abusing employee benefits.
But instead of laying it
on the line, the station’s
termination letter was vague,
apologetic in tone and failed
to even mention any of the
disciplinary issues. Luckily
for the station, the rep’s
sins were so numerous
and egregious that the
arbitrator forgave it for the
lousy termination letter and
upheld the firing [Molango v.
Star Choice Communications
Inc., [2012] C.L.A.D. No. 223,
Aug. 8, 2012].
Immigration
Sept.: Highlights of proposed changes to the Federal Skilled Worker Program that will take effect Jan. 1, 2013:
77 More points for language, which becomes most important selection factor
77 More points for Canadian work experience
77 Fewer points for foreign work experience
77 Points now awarded for spouse’s language and experience in Canada.
Privacy
Aug. 23: The Office of the Privacy Commissioner published a new online complaint form to file privacy complaints under PIPEDA
(or the Privacy Act for complaints against the public sector). Filling in the online form will ensure that the Commission gets all the
information it needs to process the complaint.
Pensions
Aug. 10: The government published proposed PRPP (pooled registered pension plans) regulations under Bill C-25. PRPPs are private
sector pensions administered by third parties that employers that can’t set up their own private plans must offer. Issues covered
by the regulations:
77 Licensing requirements of PRPP administrators
77 Management and investment of PRPP funds in member accounts
77 PRPP investment options
77 Info plan must disclose to members, employers and OSFI.
LAWS & ANNOUNCEMENTS
Minimum Wage
Oct. 1: The Manitoba minimum wage is increasing to $10.25
per hour. A 25¢ increase also kicked in last year on this date.
Workers’ Compensation
Sept. 9: As in the Northwest Territories, the 2013 average assessment rate in
Nunavut is going up from $1.77 to $2.05 per $100 of assessable payroll. WSCC says
that rising healthcare costs and the lousy economy have made it impossible for the
agency to keep subsidizing assessment rates. The WSCC will release final rates for
industry groups in October.
LAWS & ANNOUNCEMENTS
YK
Workplace Safety
Sept. 1: Recent OHS fines handed down in Manitoba:
77 $1,000 for failing to obey order to provide WHMIS
training to workers [Extreme Coatings Inc., Govt. News
Release, July 13, 2012]
77 $60,050 for failing to ensure that a punch press had
safeguards in place to prevent a worker from having
contact with points of a machine where material is cut,
shaped or bored [Cadorath Plating Co. Ltd., July 12]
77 $48,050 for lack of machine guarding in accident
involving injury to 15-year-old employee on conveyor
belt [ShellMark Farms Ltd.].
NU
MANITOBA
LAWS & ANNOUNCEMENTS
Public Finance
Aug. 21: Back in 2003, Yukon signed revenue sharing agreements allowing it to
retain up to $3 million of revenues generated from mining and just over $3 million
in oil and gas revenues. The revised agreements signed today will increase Yukon’s
resource revenue retention by tens of millions of dollars over the coming years.
NT
LAWS & ANNOUNCEMENTS
CASES
Employment Standards
Sept. 24: Gabriela Eggenhofer, the new Deputy
Minister for the Dept. of Education, Culture and
Employment, is a veteran government official
who has worked mostly in Aboriginal affairs
and was one of the leaders of the GNWT’s
new “Respect, Recognition, Responsibility”
approach to Aboriginal relations.
Safety System Prevents Mine Tragedy
If we’re talking about mine safety in Northwest Territories, it can only mean something terrible happened. Right?
In fact, this is one of those rare safety stories with a happy ending. It’s about an accident that didn’t occur. It
happened—I mean didn’t happen—at the Diavik Diamond Mine on August 16, 2012. Rocks came down from the
side of the open pit. But the mine’s early warning systems that monitor rock movements detected the slide and
sounded the alarm just as it was supposed to do. As a result, the mining company was able to get all workers out of
the mine. It then monitored the area. So, when those 5,000 tonnes of rock came down into the pit 10 hours later,
the mine was clear and nobody was hurt.
November 2012 © Bongarde • www.hrinsider.com
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ALBERTA
LAWS & ANNOUNCEMENTS
CASES
Minimum Wage
Sept. 1: Alberta’s minimum wage increased 35¢ to $9.75 per hour. The rate for liquor servers will
remain $9.05 until the general minimum wage hits $10.05. Thereafter, the 2 rates will remain exactly
$1.00 apart with future adjustments based on indexing.
Is Employee on Medical Leave Entitled to
Disability?
A constable on medical leave for over 24 months claimed she
was totally disabled and entitled to disability benefits. The
doctors backed her assertion but the city made her see an
independent psychiatrist. His report: The constable wasn’t
totally disabled and could return to work. But the arbitrator
found the psychiatrist’s report flawed and inconsistent with
the findings of all the other doctors and medical evaluations,
noting that even the psychiatrist himself had questioned its
validity [Berube Grievance, [2012] A.G.A.A. No. 43, Aug. 10,
2012].
Labour Relations—Complaint Resolution
Aug. 1: The Alberta Labour Relations Board revised its procedures for settling labour complaints
without going to court. Highlights of changes (Information Bulletin No. 2):
77 Early setting of hearing date
77 More use of case management to ensure smooth hearings
77 Increased emphasis on mediation and non-binding hearings
77 Scheduling of Resolution Conferences before hearings.
Labour Relations—Fair Representation
Aug. 1: Unions have a duty to represent their members by, among other things, filing grievances against
employers for infractions of the collective agreement. Members can sue the union if they don’t feel
it’s handled their case in a fair manner. The Labour Board’s newly revised Information Bulletin No.
18 revises and clarifies the rules governing the union’s so called “duty of fair representation” to its
members.
Human Rights
July: There are cases where discrimination is justifiable, e.g., refusing to hire a blind person to drive a taxi
cab. The legal term for a justifiable policy like this is Bona Fide Occupational Requirement (or BFOR). A
new Interpretive Bulletin from the Alberta Human Rights Commission provides detailed guidance about
what employers must do to prove an otherwise discriminatory policy is a BFOR, including checklists to
consider in establishing new or continuing current policies that could be problematic.
Workplace Safety
Aug.: Sections of the Alberta OHS Code the government is reviewing for 2015 changes:
77 Chemical Hazards, Biological Hazards and Harmful Substances
77 Cranes, Hoists and Lifting Devices
77 Rigging
77 Scaffolds and Temporary Work Platforms
77 Explosives
77 Mining
77 OELs (Occupational Exposure Limits) for Chemical Substances.
Demotion for Safety Infraction Cut to One-Week
Suspension
An electric company demoted a team leader for operating
a company vehicle in an “extremely reckless manner”—
pulling a truck up close to a co-worker loading another
vehicle. The union claimed demotion was excessive and the
Labour Relations Board agreed. The team leader’s conduct
was dangerous and worthy of discipline. But he had a
good record and the infraction was an isolated incident.
So the Board knocked the penalty down to a one-week
suspension [Atco Electric Ltd. v. Canadian Energy Workers
Assn., [2012] CanLII 46402 (AB LRB), Aug. 10, 2012].
No Workers’ Comp for Pre-Existing Mental Issues
A seasonal worker filed a claim for mental stress he said
was caused by 15 incidents that took place at work over a
4-year period. The Appeals Commission upheld denial of
the claim, noting that the worker had serious psychiatric
problems before any of these incidents happened. And
since none of the incidents aggravated his pre-existing
mental condition to the point that he could no longer do
his job, his mental stress wasn’t work-related [Decision No:
2012-683, [2012] CanLII 43145 (AB WCAC), July 27, 2012].
NOVA SCOTIA
LAWS & ANNOUNCEMENTS
CASES
Youth Training
Aug. 17: A youth leadership program from New Brunswick
is moving into Nova Scotia with federal backing. 21
Leaders is a part-time, 10-month leadership and
entrepeneurship building program open to individuals
from ages to 20 to 35 who have demonstrated potential
leadership skills. The province is providing $40,000 and
Ottawa $95,000 in funding for the program.
Firing of Probationary Employee in Public Sector Is OK
A probationary correctional officer claimed she was unfairly fired. Under Nova Scotia law, probationary
employees in the public sector can be fired for cause and must be given a fair chance to prove their
suitability for long-term employment. Among other things, employees are entitled to feedback and a
chance to fix what they’re doing wrong. The Appeal Panel found that the officer got a fair shake and
upheld the termination. The court found the Panel’s decision reasonable and let it stand [MacKinnon v.
Nova Scotia (Dept. of Justice), [2012] N.S.J. No. 442, Aug. 16, 2012].
Salary & Wages
Sept. 30: Today is the deadline for most public agencies
in Nova Scotia to begin reporting compensation of
any officials earning over $100,000. The reporting
requirement is the result of the Public Sector
Compensation Disclosure Act that was adopted in Dec.
2010.
No Proof Shipbuilder Disciplined for Complaining about Safety
A shipbuilding worker complained about having to wear decals on his safety helmet, arguing that they
could fall into machinery and cause an incident. He then claimed the employer subjected him to a “verbal
threat of insubordination;” so he filed a reprisal complaint. The Labour Board dismissed his case. The law
bars employers from taking any “discriminatory action” against a worker who exercised his rights under
the OHS law. But there was no evidence that the worker was disciplined, reprimanded or penalized in
any way for complaining about the decals [Wade v. Irving Shipbuilding Inc., [2012] NSLB 162 (CanLII),
Aug. 2, 2012].
LAWS & ANNOUNCEMENTS
QUÉBEC
LSFs
Aug. 15: The government announced the following changes to be made to Labour-Sponsored Funds:
77 Streamlining of investment diversification requirement
77 Recognition of investments made for high-value processing of wood
77 Increased recognition of major fund investments
77 Changes to calculation of 60% requirement.
Pensions
Aug. 30: Public comments on Bill 80, the voluntary retirement savings plan proposal, closed today. The government held hearings on the bill starting Sept. 11, 2012.
The VRPP is Québec’s version of the federal PRPP—a private pension plan administered by independent third parties that employers who don’t have the wherewithal
to establish their own plan must offer to their employees.
November 2012 © Bongarde • www.hrinsider.com
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BRITISH COLUMBIA
LAWS & ANNOUNCEMENTS
CASES
Workplace Violence
Sept. 28: That’s the deadline to comment on
WorkSafeBC’s proposed new bullying and
harassment policy listing what employers must do
to prevent workplace bullying and harassment:
77 Perform risk assessments
77 Implement written bullying and harassment
policies
77 Establish system for reporting and
investigating incidents
77 Notifying employees of harassment and
bullying hazards
77 Provide support for victims of harassment
and bullying.
Office Blow-Up ≠ Poison Workplace Justifying Constructive Dismissal
Horrible relations with her staff caused a manager to suffer mental stress, go on medical leave and eventually leave
her job. But her constructive dismissal lawsuit was shot down. The manager’s accounts were exaggerated. “Not
every workplace blow-up results in poisoning the workplace,” the court reasoned. And while the interpersonal
situation was pretty bad, it wasn’t beyond what a “reasonable person” could tolerate. Accordingly, in leaving the
job, the manager repudiated the contract and wasn’t entitled to damages for constructive dismissal [Danielisz v.
Hercules Forwarding Inc., [2012] B.C.J. No. 1623, Aug. 2, 2012].
Healthcare Workers
Aug. 23: BC became the first province to require
healthcare workers to get a flu shot or wear
a mask at all times everywhere in the facility
except the cafeteria. The new policy, which raises
eyebrows from a privacy standpoint, applies to
staff at publicly funded facilities, including longterm care homes. No response from the unions
yet.
Workers’ Compensation
Aug. 6: WorkSafeBC announced a 5% increase in
average base premium rate for 2013 to $1.62 per
$100 of employers’ assessable payroll. That’s the
first average rate increase in 9 year. Overall:
77 765% of employers will experience an
increase in industry base rate
77 31% will see a decrease
77 4% will see little or no change.
Employment Standards
Aug. 27: Just in time for Labour Day, the Ministry
of Labour issued a new information bulletin
summarizing the rights of young workers (ages
15 to 24) under the ESA, including with regard
to wages, tips, hours, work breaks, overtime,
termination notice, etc.
Bakery Can Fire Employee for Urinating in Sink
A female bakery worker told her supervisor that she saw a male co-worker urinating into a floor sink in a janitor’s
room. When confronted, the employee initially denied but then admitted he had, in fact, relieved himself in the
sink on this and several other occasions. Wisely, the employer asked him if he had a medical condition requiring
an accommodation. The doctor’s note said the employee needed regular bathroom breaks but not that he needed
to urinate in the sink. So the employer fired him. The arbitrator upheld the decision, noting there was a washroom
the employee could’ve used. Using the sink instead ignored the basic rules of “civilized behaviour,” which was
especially troubling for an employee in the food industry [X v. Y (Termination Grievance), [2012] B.C.C.A.A.A. No.
103, July 23, 2012].
Waitress/Non-Employee Can Sue Franchise for Sex Harassment
The sex harassment complaint filed by a waitress at a Blenz coffee shop in Vancouver was pretty standard. What
makes the case significant is that she filed it against not just the shop owner/franchisee but the Blenz franchise
itself. Blenz tried to get the case thrown out since it wasn’t the waitress’s employer. But the BC Human Rights
Tribunal refused, noting that the waitress had twice contacted Blenz with her concerns and never got a return call.
An employee doesn’t have to be employed by the franchise to sue it for sex harassment, the Tribunal concluded
[Chárthaigh v. Blenz, 2012 BCHRT 264, Aug. 2, 2012].
Employee Fired the Day after Telling Boss She’s Pregnant
A payment processing manager told her boss that she was pregnant and planning to take maternity leave. The
very next day, she was fired. The employer claimed that it was planning to close the BC operations the manager
was running anyway. But it couldn’t produce evidence showing that the decision had already been made. And the
Human Rights Tribunal disagreed about the timing’s being pure coincidence. The manager had gotten positive
performance reviews and was never told her job was in trouble, the Tribunal explained. So it ordered the employer
to pay over $11,000 in wages and damages for pregnancy discrimination [Kooner-Rilcof v. BNA Smart Payment
Systems, 2012 BCHRT 263 (CanLII), Aug. 2, 2012].
Employees Who Resign Can’t Un-Resign to Collect Severance
A paper plant decided to close down and offer severance. A group of employees who had resigned 5 months
earlier withdrew their resignation and demanded the severance package. The plant refused to reinstate them. The
Labour Relations Board ruled in the employees’ favour. The plant appealed to a Review Panel and won. So, the
union appealed to the court and won. Undaunted, the plant appealed to the BC Court of Appeal, the highest in the
province, for the final round—and won. The lower court messed up the law, said the Court, and the employees who
resigned had no right to be reinstated [Communications, Energy & Paperworkers’ Union of Canada, Local 298 v.
BC (Labour Relations Bd.), [2012] B.C.J. No. 1756, Aug. 22, 2012].
NB
LAWS & ANNOUNCEMENTS
CASES
Workplace Safety
Aug. 13: Highlights of WorkSafeNB’s 2011 Report to Stakeholders:
77 3.12 per 100 FTEs injury rate, 1% below 2010 and 5-year average target of 3.37
77 4 workplace fatalities
77 5 worker deaths from previous years’ injuries or illnesses
77 8,751 workplaces inspected
77 6,782 orders issued.
Workers’ Comp Must Pay for Orthopedic
Footwear
Excessive standing on the job exacerbated a
security guard’s lower back pain. His doctor
prescribed orthopedic footwear and orthotics
but workers’ comp refused to pay for them. The
Appeals Tribunal ruled that the items were, in fact,
covered by workers’ comp. The guard’s job required
him to spend a lot of time on his feet and walking.
The medical aids recommended by his doctor met
the requirements for workers’ comp coverage by
reducing his pain and allowing him to perform his
work duties [20126564 (Re), [2012] CanLII 46908
(NB WHSCC), Aug. 13, 2012].
Pensions
Aug. 14: New regulations took effect giving public and private sector pension plans the option to convert
to a new model based on examples from Europe. Current pensions are tailored to the economics and
demographics of the 1980s, the government claims; but the new New Brunswick model, based on risk sharing,
is based on modern conditions. Roughly 1/3 of public pensions in the province have gone over to the new
shared-risk model, according to government sources.
NL
LAWS & ANNOUNCEMENTS
CASES
Minimum Wage
Sept. 15: The government closed public comment
on its 2012 minimum wage review. The next
step will be to make recommendations to the
Minister Responsible for the Labour Relations
Agency by mid-fall.
Union Can’t Claim Probationary Employee’s Firing Was Untimely
A union grieved the termination of a probationary employee in 2009. More than 2 years later, with the
case about to go to a hearing, the union raised a new argument, claiming that the dismissal wasn’t timely.
No dice, said the arbitrator. The employer’s timing was perfectly consistent with past practice in firing
probationary employees. And by failing to bring up timing in the initial 2009 complaint, the union waived
the right to raise it now [Brocklehurst Grievance, [2011] N.L.L.A.A. No. 14, Dec. 7, 2011].
November 2012 © Bongarde • www.hrinsider.com
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ONTARIO
LAWS & ANNOUNCEMENTS
CASES
Workplace Safety—OHS Reforms
Aug.: Major developments in Ontario OHS reform in Ontario during the
month:
77 MOL appoints 9 of 11 members of new Prevention Council,
including 4 labour reps, 1 non-union labour rep and 4 employer
reps
77 MOL begins revising worker health and safety awareness workbook
and employer guide
77 WSIB begins implementing Consultation Plan based on Arthurs’
WSIB Funding Review
77 WSIB hearings to begin in Sept. and Final Report to be issued in
Nov.
OK for Law Firm to Fire Lawyer for Insolence
Nothing gets the juices flowing like 2 lawyers caught in a nasty personal fight. Six
months into the job, the associate of a one-woman law firm wrote a nasty letter to the
boss criticizing her competence, professionalism and integrity. The trial court ruled the
boss had just cause to fire her for insolence. But the appeals court disagreed and said
the letter wasn’t insolent. So, after nearly 10 years of litigation, the case went to the
Court of Appeal for the third round. Result: The boss won. The question of whether
the associate was insolent was the trial court’s call, said the Court, and the appeals
court had no business second guessing it [Bennett v. Cunningham, [2012] O.J. No.
3839, Aug. 17, 2012].
Workplace Safety—MOL Enforcement
Aug.: The MOL published its “Blitz” schedule for the fall:
MONTH 2012
FOCUS
Sept. to Oct.
Oct. to Nov.
Supervisors at construction sites
Machine guarding hazards & repetitive strain injuries in
manufacturing & industrial workplaces
Oct. to Nov.
Infection control at healthcare workplaces
Nov. to Dec.
Transfer of ore in underground mines
Pay Equity
Aug.: The government issued new guidelines to help employers comply
with the Pay Equity Act. Key provisions:
77 Employers must implement compensation practices that provide
for pay equity between genders in each of their “establishments”
77 Employers and unions can’t contract out of pay equity
requirements
77 Special requirements apply to large private and public sector
employers that were in existence on Jan. 1, 1988.
Labour Relations
Aug. 27: The government tabled Bill 115, which would ban lockouts and
strikes and freeze teachers’ salaries for 2 years. Other provisions:
77 1.5% pay cut by requiring teachers to take 3 unpaid professional
development days
77 Elimination of retirement gratuity for payment of unused sick
days
77 Restructured short-term leave plan including up to 10 sick days.
Pensions
Aug. 31: Public consultations on a draft regulatory amendment on using
letters of credit to finance DB plan funding deficits closed. The proposed
regulation:
77 Sets maximum value of letters of credit
77 Establishes method of calculating maximum value
77 Says who can use letters of credit to fund deficits.
Firing Employee 2 Weeks after Work Injury ≠ Disability Discrimination
A heavy equipment operations manager at a transport company got hurt in a fall at
work. Two weeks later, he was fired without ever being warned his job was in jeopardy.
‘Disability discrimination, right? No, said the Human Rights Tribunal. The evidence
showed that the decision to fire the manager was made 4 weeks before he got hurt
as part of the general restructuring that took place after a new owner acquired the
company and applied to other employees in similar positions who didn’t get hurt.
The fact that the manager got the bad news 2 weeks after getting hurt was just an
unfortunate coincidence [Hummel v. Transport Training Centres of Canada Inc., 2012
HRTO 1489, July 31, 2012].
Employee with Scent Allergy Claims Disability Discrimination
In a case that’s just begging to be reversed, the Ontario Human Rights Tribunal threw
out the disability discrimination claim of a new employee who couldn’t even make it
through 3 days of her initial training because of her allergy to scents. The employer
had a no-fragrance policy but the employee claimed that perfume of co-workers
still made her ill. The Tribunal believed and sympathized with the employee. But it
noted that the fragrance that made her sick was undetectable to others. Requiring the
company to extend the no-fragrance policy to undetectable scents to accommodate an
individual with “hypersensitivity” would impose undue hardship, it concluded [Kovios
v. Inteleservices Canada Inc., [2012] O.H.R.T.D. No. 1553, Aug. 14, 2012].
Firing Is Lawful but Disabled Employee Still Gets Notice
After 4 years of absence with a disability, a trucking company finally terminated a
driver. Both sides agreed that the injury “frustrated” the driver’s contract by making
it impossible for him to do his job. But the arbitrator said the driver was still entitled
to termination notice. ESA termination notice is due, the arbitrator reasoned, even if
a disability frustrates an employee’s contract [Wright Grievance, 2012 O.L.A.A. No.
246].
Firing Too Severe for Manager’ Safety Violation
Since the second floor of the building wasn’t wheelchair-accessible, a store employee
used a forklift to hoist his wheelchair-bound co-worker to the second floor so he could
attend training. The assistant manager was aware of the scheme, which was incredibly
dangerous not to mention in violation of store safety rules; but while he didn’t approve
it, he also made no effort to stop it. So the store fired him. The assistant manager’s
conduct was serious, the court acknowledged, but not worthy of termination given
his good performance reviews and lack of prior discipline. So the court found the
termination wrongful and awarded the assistant manager 10 months’ salary; but it said
no to Wallace damages because there was no evidence that he had suffered mental
stress as a result of the way he was fired [Barton v. Rona Ontario Inc., [2012] ONSC
3809 (CanLII), Aug. 3, 2012].
CASES
CASES
Workplace Safety
Sept. 3: Saskatchewan announced that changes
to the OHS Act scheduled to take effect today
have been pushed back indefinitely for further
study. Areas of concern:
77 Tickets for summary offences
77 Designation of prime contractor to
coordinate safety multiple employer
sites
77 Increases in penalties.
The Month in Saskatchewan OHS Fines
Significant OHS fines handed out by Saskatchewan
in August 2012:
77 $20,000 against backhoe operator for 2 OHS
violations in connection with gas explosion
killing 2 workers in demolition operation
[Lorry Riemer, Govt. News Release, Aug. 1,
2012]
77 $9,800 against owner of roofing company
for 4 fall protection violations [Theodore
Sibbald, Govt. News Release, Aug. 2, 2012]
77 $6,180 against municipality for failing to
protect construction workers against trench
cave-in hazards [City of Meadow Lake,
Govt. News Release, Aug. 7, 2012].
No Evidence that Race Factored into
Denial of Promotion
A Canadian of African origin claimed the nonprofit organization he worked for him denied
him a promotion because of his race and
ethnicity. The hiring process was inconsistent
with different candidates being asked
different questions, the Human Rights Panel
acknowledged. But the process was flawed
and inconsistent for all applicants. And since
the evidence suggested that the applicant
wasn’t qualified for the promotion and that
race didn’t factor into the decision, the Panel
threw out his case [Ayangma v. Canadian
Health Infoway Inc., HRC File No. 1380-06,
Aug. 23, 2012].
Pharmaceutical Drugs
Aug. 9: The Saskatchewan Drug Plan will now
pay for Naglazyme, an enzyme replacement
drug used to treat a rare enzyme deficiency
called mucopolysaccharidosis VI (MPS VI).
November 2012 © Bongarde • www.hrinsider.com
PR. ED. ISLAND
SASKATCHEWAN
LAWS & ANNOUNCEMENTS
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PROGRESSIVE DISCIPLINE CONTINUED FROM FRONT
What Is Progressive Discipline?
Progressive discipline is a series of gradually sterner punishments. It
usually starts with warnings for a first offence, mounts to suspensions
and ultimately dismissal. At each stage, you confront the employee,
explain what he did wrong, impose the appropriate punishment and
warn him to clean up his act.
Progressive discipline works best against employees who commit
repeat offences of a serious but not deal-breaking nature. Such offences
occur frequently in the safety realm, e.g., not wearing hardhats or other
personal protective equipment. Progressive discipline is not appropriate
for serious violations that call for stronger and more immediate action
even for a first offence, e.g., theft or physical violence. Arbitrators and
courts will generally allow you to dispense with the warnings and
suspend or even dismiss a first offender if the potential consequences
of the violation are serious enough and if you punish all similar offences
the same way.
By the same token, you must consider “mitigating factors,” i.e.,
circumstances calling for more lenient treatment like long service, lack
of previous offences, admission of wrongdoing and sincere remorse.
Setting the Stage
You must notify employees in advance that you use progressive
discipline and explain the steps. Put a description of the system in the
collective agreement or if employees aren’t in a union, the employee
manual or individual employment contract.
A basic progressive discipline policy provides for at least 4 levels
of punishment: verbal warning, written warning, suspension and
termination. But there’s no one way to do it and policies vary depending
on the organization and collective agreement. For example, the penalty
for a first offence may be counseling instead of a warning; or, there
may be an intermediate penalty like demotion between suspension and
termination.
How to Impose Progressive Discipline
For simplicity’s sake, let’s focus on the plain vanilla 4-level policy applied
to safety infractions. Here’s how to impose each level of punishment.
Step 1: Verbal Warning
Employees who commit safety violations should get at least one verbal
warning. A verbal warning is more than just an informal “watch-yourstep.” You need to deliberately tell the employee that you’re providing a
verbal warning under the progressive discipline policy, lawyers say. You
also need to do 4 things:
Explain specifically what the employee did or didn’t do and
why it’s a problem.
Ask for an explanation. You might find out that the offence is
the result of a misunderstanding. For example, the employee may not
have been trained how to use the equipment properly and the warning
should be directed to the supervisor. Lack of communication can lead
to precisely what you want to prevent—a grievance. And getting the
employee’s side of the story will also help you prepare for a hearing in
case a grievance is filed.
Warn the employee not to do it again. Don’t be hostile when
issuing warnings. There’s no need to antagonize the employee,
especially at this stage when you don’t know if you’re facing a chronic
problem or an isolated incident.
Write a memo describing what you said and the employee’s
explanation. Give a copy to the employee and the union and keep
another copy in your files.
Step 2: Written Warning
If the employee commits another safety violation, issue a written
warning.
77 Remind the employee of previous warnings and briefly describe
the circumstances;
77 Say that you’re writing this letter because of failure to heed the
warning;
77 Explain what the employee did wrong; and
77 Warn of further discipline if the problem continues.
Ask the employee to sign the document to acknowledge receipt and
understanding of the warning. Keep a copy of the signed warning in
your files and give a copy to the employee and the union.
Step 3: Suspension
When and if the employee commits another safety infraction, send a
formal suspension letter:
77 Describing the previous incidents;
77 Indicating how many days you’re suspending the employee
without pay (or other punishment you’re imposing); and
77 Making it clear that this is the final warning and that further
misconduct may result in dismissal.
Send the letter to the employee and the union via certified mail,
return-receipt requested. Keep a copy in the files.
Step 4: Dismissal
If the problem continues, be prepared for the ultimate stage of
progressive discipline: dismissal. Caveat: The final or “culminating
incident” needs to be more than just a minor offence; it must be
serious enough to justify concluding that previous discipline hasn’t
worked, further efforts would be useless and termination is the best
course of action. Be prepared for scrutiny and don’t treat an offence
as a culminating incident unless you’re pretty sure you can persuade
the arbitrator that the incident warrants concluding that progressive
discipline isn’t and can’t be expected to work.
Once you think you have a defensible culminating incident, tell the
employee you want to hold a formal meeting to discuss dismissal. The
November 2012 © Bongarde • www.hrinsider.ca
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10
PROGRESSIVE DISCIPLINE CONTINUED FROM PAGE 9
employee can then decide whether to have a union representative
attend.
reasons in writing might box you in at an arbitration hearing or court
case.
At the meeting, go over all previous incidents and disciplinary
actions. Say that the problem persists and describe the immediate
cause of dismissal. Give the employee and/or representative a chance
to respond. If you’re dissatisfied with the explanation, let the employee
know he’s dismissed.
Conclusion
Take careful notes of everything that happens at the meeting. Make
sure at least one member of management attends as a witness. When
the meeting ends, write a final memo for the files summarizing what
took place including your case and the employee’s defence. Don’t send
the employee a letter listing your reasons for dismissal (unless you’re
required to under the collective agreement. Setting down all your
There’s one more thing you must do to use progressive discipline effectively:
Keep the right records. Approach every step of the process with the
mentality that your actions will be challenged in arbitration or court where
you bear the burden of proof and the employee you’re disciplining will
almost surely have the “sympathy” advantage. The only way to overcome
these obstacles is to produce records like memos to files, written notices,
notes summarizing conversations, etc. and other documentation of what
you did and why you did it. Documentation must be created at the time of
the action. If you try to go back and document things after the fact, you’re
in deep trouble, lawyers caution. 
Get Right to Discipline Employees for Safety Infractions
Here’s a Model Policy establishing your right to lay down 4 levels of progressive discipline for safety violations: verbal warning, written warning,
suspension and termination. Caveat: No single policy is appropriate for all employers. But you can show this model to your lawyer and use it as a
basis for formulating your own policy taking into account the laws of your province, the terms of your collective agreement (if your employees are
unionized) and other circumstances peculiar to your company.
PROGRESSIVE DISCIPLINE POLICY
1. General Policy. Employees who violate ABC Company and site safety rules and procedures and/or [province name] Occupational Health and
Safety laws, regulations and rulings shall be subject to discipline in accordance with the following progressive discipline policy.
2. Verbal Warnings. Employees who commit a first offence will receive one verbal warning. Upon receiving a verbal warning, the employee will be
given an explanation of the infraction and corrective action required, an opportunity to explain and notification that further offences will result in
more serious penalties. A note stating that the verbal warning was given listing the time, date and reason will be kept in the employee’s personnel
file.
3. Written Warnings. Second offences will result in a written warning which will be recorded on the ABC Company disciplinary log. A copy of
the warning will be sent to the employee, the ABC Company head office, the union and the OHS officer in charge of the site and be kept in the
employee’s personnel file.
4. Suspensions. Third offences may result in suspension for a period considered appropriate under the circumstances. A copy of the suspension
notice will be sent to the employee, ABC Company head office, the union and the OHS officer in charge of the site and kept in the employee’s
personnel file.
5. Termination. Fourth offences may result in immediate termination. The supervisor responsible for the employee will be informed immediately
and he/she will remove the employee from the site. A copy of the termination notice will be sent to the employee, ABC head office, the union and
OHS officer in charge. In addition, the employee shall be given an opportunity to contest the dismissal at a hearing as required by the collective
agreement.
6. Serious Offences. In the event employees engage in severe offences of a dangerous nature, ABC Company may impose more serious penalties up
to and including immediate termination without following the sequence provided under this progressive discipline policy. For example, employees
who engage in workplace violence or use alcohol or illegal drugs during their designated shifts may be subject to immediate termination without
warning or suspension even if this is their first offence.
November 2012 © Bongarde • www.hrinsider.ca
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SEX HARASSMENT
CASE OF THE MONTH
Senior Employee Who Slurs Women Keeps His Job
There are about 2 or 3 dozen slurs that can’t be tolerated in the
workplace, particularly when uttered in the presence of a person
whose race, religion, gender, etc. the word demeans. But while
sensitivity to these poison words is a good thing, it can also lead to
overreaction. A recent case out of Alberta is an outstanding example
of the restraint, balance and compassion employers must show
when reacting to what is a highly emotional provocation—the use
of slur words by an employee in a senior position.
THE CASE
What Happened: The story begins in Calgary when a crew from
“Fire Station A” responded to an emergency call that turned out to
be nothing more than a routine clean up. What was not routine were
the remarks made by Captain Hendricks, the man filling in as Station
chief for the day in the truck on the way back to the station. Why
are there so many “g****s” at the station, Capt. Hendricks asked his
colleagues referring to the 3 female firefighters at Station A. When
asked what “g****s” were, he responded “c***s, I mean c***s.”
When he made these remarks, Capt. Hendricks assumed he was
talking to males—and only males. But he was wrong. A female
firefighter in the back of the truck overheard the comments and filed
a complaint. After firing Capt. Hendricks, the Fire Dept. backed off
and cut the penalty to an 8-week suspension and 6-month demotion.
The union argued that this discipline was still too severe.
What the Court Decided: The Alberta Grievance Arbitration
Award board upheld the penalty.
How the Court Justified Its Decision: Capt. Hendricks’s remarks
weren’t just “repugnant” and “demeaning.” They had a demoralizing
effect on female firefighters and undermined the department’s efforts
to create an inclusive workplace, the arbitrator reasoned, especially
coming from one expected to be a role model like Capt. Hendricks.
But the Board also considered the Captain’s heartfelt apology,
his 32 years of unblemished service and the fact that he didn’t
actually touch anybody. These “mitigating” factors dictated against
termination; but they didn’t warrant cutting the duration of the
suspension or temporary demotion, the Board concluded.
Calgary (City) v. Calgary Fire Fighters Assn., International Assn. of
Fire Fighters, Local 255 (Hendricks Grievance), [2012] A.G.A.A. No.
37, July 9, 2012
ANALYSIS
Regrettably, men in the workplace still use the c*** word and other
sexist slurs. Such behaviour is repugnant and intolerable, especially
from men in authority positions. But as HR director, you need to
ensure your organization keeps its collective cool in deciding upon
appropriate discipline. Hendricks is an excellent illustration of the
restraint and balance required in handling these emotionally volatile
situations.
The first thing to notice is that the department conducted a full
and thorough investigation before deciding what to do. When
Capt. Hendricks didn’t deny or try to justify saying what he said,
the department decided to fire him. But the heartfelt letter he
sent after getting word of termination acknowledging his guilt
and begging forgiveness, coupled with all of the other mitigating
factors, persuaded his superiors to let Capt. Hendricks keep his job.
The arbitrator expressed approval of the department’s disciplinary
process and its decision to “take into account inherent human
frailty and understand that mistakes happen.” Make no mistake:
The long suspension and demotion still represented harsh
discipline. But having staked out the legal and moral high ground,
the department was all but assured of winning on the penalty.
The bottom line: We all understand that certain magic words
should never be uttered in a workplace—or anywhere else for that
matter. But the emotions these words arouse have no place in
determining the appropriate discipline for uttering them. When it
comes to justifying discipline, an organization’s reaction is just as
important as the employee’s offence. 
November 2012 © Bongarde • www.hrinsider.com
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TERMINATION
winners & losers
Is Sleeping on the Job Just Cause to Terminate?
Dozing off at work is like absenteeism on the job—only worse. In addition to impairing productivity and sapping morale, napping may endanger
workers and the public if the employee who dozes off occupies a safety-sensitive position. But is napping on the job one of those egregious
offences that warrants automatic termination? The short answer: No. As with other forms of misconduct, sleeping on the job must be disciplined
according to the particular circumstances involved. Here are 2 cases illustrating the factors courts and arbitrators use to determine whether to
uphold firing an employee for nodding off at work.
FIRING NOT JUSTIFIED
FIRING IS JUSTIFIED
FACTS
FACTS
An autistic patient requires around-the-clock care. And given her history of
violence, nighttime grand-mal seizures and wandering off, it’s imperative
that nurses assigned to watch her stay awake for their entire shift. One
night shift nurse doesn’t get the memo. Not only does she nod off while
watching the patient, but she does it on purpose, bringing a quilt and
alarm clock to wake her up before the next nurse arrives. The alarm clock
doesn’t go off and her replacement catches her sound asleep. She begs the
replacement to keep mum but the employer finds out what she did and
fires her.
A lead hand on a construction site hides in a trailer after a scheduled
break to buy himself some extra rest. He brings along a can of soda and
bag of chips to enjoy during his “extended break.” A little while later, the
manager finds him lying down with his eyes closed. He admits to resting
and stretching his break but denies that he was asleep and claims he was
caught up with all his work. But he’s fired for “malingering on the job.”
DECISION
A BC arbitrator upholds the termination.
EXPLANATION
Firing was appropriate, said the arbitrator, because the nurse:
77 Deliberately planned to nap on the job;
DECISION
A federal arbitrator cuts the penalty to a demotion and 3-month
suspension.
EXPLANATION
In a mirror image of the Nagi Grievance case, the arbitrator reasons that
the lead hand:
77 Was just trying to get some extra rest and didn’t intend to fall
asleep;
77 Tried to cover up her offence by asking the other nurse to lie;
77 Didn’t lie when he got caught—there was no hard evidence to
77 Failed to accept responsibility or express remorse for her actions. 
77 Didn’t put anybody’s safety at risk. 
Pamel’s Home Society v. Hospital Employees’ Union (Nagi Grievance),
[2006] B.C.C.A.A.A. No. 40, Feb. 27, 2006
In re: Canpar and United Steelworkers of America (Local 1976), Canadian
Railway Office of Arbitration, Case No. 3385, Dec. 13, 2003
77 Endangered the patient’s safety; and
contradict his assertion that he was just resting his eyes and not
sleeping; and
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