LAWS 363 - Human Rights + Employment Law PT2 Flashcards
What is the internal responsibility system?
An approach based on the belief that healthy and safe workplaces require the participation of all parties
What are JHSC’s
Joint health and safety committees
Advisory health and safety bodies composed of equal numbers of management and worker representatives
When is a JHSC generally required?
Generally in workplaces with 20 or more workers
What is a health and safety representative
A person who exercises rights and powers similar to those of the joint health a and safety committee
When is a health and safety representative required?
Required in workplaces with 6 to 19 employees
How does OHSA define workers
Section 1(1) - Workplace is defined broadly
An individual need not be an “employee” in a legal sense of the term to be covered by the legislation
Unpaid interns and students on co-operative or field placements covered under paragraphs 2 and 3
Are workplaces under federal jurisdiction covered by the OHSA
No
What are employers duties
Enumerated in sections 25 and 26 of the OHSA
What are workers duties
Section 28 of the OHSA
What are supervisors duties
Listed in section 27
What is a supervisor
“Supervisor” defined in section 1 as a “person who has charge of a workplace or authority over a worker”
What are constructors duties
Set out in section 23
What is a constructor
Generally the person with overall control over a project
What are owners duties
Section 29
What are duties of others
Every person who supplies workplace equipment under a rental or leasing arrangement (section 31(1))
Corporate officers and directors (section 32)
Architects and engineers (section 31(2))
What are workers key three rights under OHSA
- The right to participate in the health and safety process
- The right to refuse unsafe work/the right to stop work
- The right to know
What is the structure of JHSC
- Half the JHSC members must be worker representative selected by workers
- Co-chairs: one member selected by worker representatives and one member selected by management representatives
- Certified members have unique responsibilities
*divide FC?
What are the stages for the right to refuse unsafe work (section 43(3) of OHSA)
- First stage of refusal
- Second stage of refusal
- No reprisal (section 50(1))
Relevant sections to the right to stop work
- Section 44 to 49
- Bilateral work stoppages (s 45)
- Unilateral work stoppages (s 47)
- Right is limited in certain workplaces (ex. firefighters)
Under OHSA workers have the right to know about potential hazards, what does this include?
The right to receive training about the safe use of machinery, equipment and processes
What must an employer do under the Workplace Hazardous Materials Information System (WHMIS)
- Prepare and maintain an inventory of hazardous materials
- Label hazardous materials
- Prepare or obtain material safety data sheets (MSDSs)
- Provide worker training
What does workplace violence include?
Both the exercise of physical force and the attempt or threat to exercise physical force
Workplace harassment - OHSA similarity and difference
Mirrors the definition found in the Ontario Human Rights Code, but applies regardless of the reasons for the harassment
What does section 51 of OHSA require
- Employers must immediately report to the Ministry of Labour any accident that results in a fatality or critical injury
- Written report must be provided within 48 hours
- Employer must also immediately notify the JHSC or health and safety representative and the injured worker’s union
What does part VIII of OHSA sections 54-65 cover
Outlines the enforcement powers and processes of the Ministry of Labour
Section 62 of OHSA
Makes it an offence to interfere with an inspector and imposes an obligation to facilitate the inspection
Sections 54-56 OHSA
Broad powers given to inspections
Section 56(1) OHSA
Allows inspectors to obtain a warrant from a justice of the peace
What are the offences and penalties for contravention of OHSA
- Contravention of the OHSA or failure to comply with an order prosecutable in Provincial Offences Court under section 66
- Authority of Ministry of Labour inspectors to commence prosecutions under parts I or III of the POA
- Fines for violations that do not result in a workplace injury often imposed as a deterrent
Due diligence defence
- Accused must show it took every precaution reasonable in the circumstances to prevent the danger (section 25(2)h())
- Objective standard; employer’s honest belief not enough
What must be proven in strict liability
Only actus reus
What must the prosecutor prove in a regulatory offence case
Mens rea, actus reus, and identification beyond a reasonable doubt
Section 217.2 of Canada’s Criminal Code
- “Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task”
- Applies to both federally and provincially regulated organizations and supplements occupational health and safety legislation
- Maximum fine for summary conviction prosecutions also increased
What does the Workplace Safety and Insurance Act 1998 (WSIA) deal with
Compensating and reintegrating workers who suffer work-related injuries and illnesses, regardless of who was at fault
What do workers lose in exchange for no-fault benefits
Workers cannot sue employers for occupational injuries and illnesses
What does the no fault system require from workers and employers
Workers and employers to take responsibility for and cooperate in getting an injured worker back to work
Before the workers’ compensation system how did workers seek compensation for injuries
Tort law by a negligence suit against the employer
How would employers defend against negligence suits (before the workers’ compensation system)
- Contributory negligence: the worker acted negligently in a way that contributed toward his injury
- Co-worker negligence: a co-worker’s negligence was the cause of the injury, rather than the employer
- Voluntary assumption of risk: often arose in the case of work that was inherently dangerous
These suits were not often successful for the workers but if they were, they could be ruinous for employers
What are key features of Ontario’s WSIA
- No-fault insurance system compensates workers for work-related accidents or occupational injuries, means workers cannot sue
- Benefits for injured workers are funded entirely by employers in the province, employers with good safety records or safe industries pay lower premiums
- Workers cannot contribute to premiums or waive their rights to benefits
- Most employees in Ontario are covered by the WSIA
- Workers and employers are required to cooperate in returning disabled workers safely and quickly to work
- Larger employers may be obliged to re-employ injured workers
- If a worker cannot return to his employer, the WSIB may assist him in re-entering the workforce
Are industries in the province required to have coverage
Most do, but some low-risk industries do not
Are all employees compulsorily covered
Most are, however independent operators, sole proprietors and executive officers aren’t - this does not apply to workers in the construction industry
What worker coverage do federal employees have
Worker’s compensation board in the province in which they work
What are examples of low-risk employment industries
Financial institutions, recreational and social clubs, broadcasting stations, trade unions, law firms, barber shops, educational institutions, veterinary clinics and dental offices
What must be proven for a WSIA claim
That the injuries or diseases relate to the workplace, the injury must arise out of and in the course of the worker’s employment.
There is a rebuttable presumption that accidents sustained during employment arise out of and in the course of employment
What must be shown to receive disability benefits
An employee must show a relationship between the disability and work.
A secondary injury that is causally linked to a work-related injury may be eligible for benefits
When can a mental stress claim be made
Historically, a mental stress claim could only succeed when it was an acute reaction to a sudden, unexpected traumatic event arising out of and in the course of employment. In 2014 this was ruled to be discriminatory, potentially expanding benefits to sufferers of chronic mental stress.
Workers are not entitled to benefits arising from decisions or actions related to their employment, such as discipline.
How are benefits for chronic pain assigned
Paid when the pain was initially caused by a work-related injury and continues for up to six months beyond the usual healing time.
Once a worker has established the existence of a work-related injury or illness what benefits will they be entitled to under the WSIA
- Lost earning on the day of injury, including wages and benefits
- Health care costs, including modifications to a home or vehicle
- Loss of earnings benefits, calculated at 85% of net earnings
- Non-economic losses, if the injury becomes a permanent impairment
- Loss retirement income benefits (pension)
If a worker dies from a compensable injury what is the spouse entitled to
- A lump-sum payment base on age
- Periodic payments based on the deceased worker’s net average earnings and number of children
- Vocational counselling
How are loss of earning benefits paid
Until the day the loss of earning ceases, the worker reaches the age 65, or the day the worker is no longer impaired by the injury, whichever is earliest. If they are paid for 72 months, they become permanent
When must a worker receiving WSIB benefits notify the WSIB
When there are any material changes in their situation - any change that would affect his entitlement
What is the purpose of non-economic losses
To compensate for loss of enjoyment of life - often will be higher for younger persons as they may live with the disability for a longer period of time
What happens if a deceased worker has no eligible spouse?
Surviving children will be entitle to dependants’ benefits
What information is an injured worker required to disclose to the WSIB
Medical information that indicates their functional abilities
What must happen when a injured is able to perform the essential duties of his pre-injury job?
The employer must reinstate him to the same or comparable job with comparable earnings. This obligation eventually expires and the employer must accommodate the worker in performing the essential duties unless this results in undue hardship.
What is presumed if an employer dismisses a worker within six months of returning to work?
That they are in contravention of its reinstatement obligations and may be penalized.
What happens if a worker becomes unable to perform their pre-injury job
The WSIB will assist the worker to prepare a work transition (WT) plan, this may require work placements, workplace modifications, or formal retraining. A worker who fails to cooperate with a WT plan may have benefits terminated.
The WSIB may also work with a surviving spouse if appropriate to facilitate the spouses’s re-entry into the labour market.
How are WSIA costs paid
Employers pay the full cost of the WSIA system by way of premiums. It is illegal for employers to recover premiums from workers.
How long does a covered employer have to register with WSIB?
Within 10 days of becoming an employer.
What are the two categories of employers?
Schedule 1 employers - pay premiums on the basis of their industry class and rate group which is set depending on the claims history for the group
Schedule 2 employers - generally quite large and assessed individually based on actual accident costs
What does the WSIB do
- Adjudicating and paying compensation claims
- Overseeing workers’ reintegration and re-employment
- Collecting employer premiums
- Setting employer assessment rates
- Managing investments
- Enforcing reinstatement rights
- Preparing policies and guidelines for adjudicating claims
How does WSIB handle appeals
- A worker or employer who disagrees with a WSIB decisions may file a written notice of objection
- The first appeal will be handled by the same WSIB department that made the original decision
- The second appeal will be handled by the WSIB’s Appeals Branch
- The third appeal will be handled by the Workplace Safety and Insurance Appeals Tribunal, which is independent of the Board but applies Board policies
- Either party may apply for judicial review of the decision of the WSIAT
What other agencies are directly involved in the workers’ compensation system
The Office of the Worker Adviser - advises injured workers who are not members of a trade union
The Office of the Employer Adviser, which advises employers with fewer than 100 employees
What is remedial legislation?
A law intended to right a societal wrong and provide a remedy, rather than to punish an offender
What is Quasi-constitutional (Reference to Human Rights Code)
In reference to the Human Rights Code, legislation that is given subordinate authority over other provincial statues
What constitutes discrimination?
While discrimination is not defined in the Code, courts have recognized it as both intentional acts of exclusion and hidden or unintentional acts
Employers have a duty to accommodate negatively affected employees up to the point of…
Undue hardship
What is systemic or institutional discrimination
Refers to policies or practices that may be neutral on their face but that have discriminatory effects
What is the three part test for determining whether a discriminatory rule of qualification set in the Meiorin decision
- The employer must demonstrate that a rational connection exists between the purpose for which the standard was introduced and the objective requirements of the job
- The employer must demonstrate that the standard was adopted in an honest and good-faith belief that it was necessary for the performance of the job
- The employer must establish that the standard was reasonably necessary to accomplish that legitimate work-related purpose
The Code provides that everyone has the right to be free of discrimination in what five areas (the five areas of social activity)
- Services, goods and facilities
- Accommodation (housing)
- Contracts
- Employment
- Membership in vocational associations and trade unions (such as the Law Society of Ontario)
Was does ‘Employment’ include
Interpreted broadly to include full and part time employment, contract work, temporary work, probationary periods, unpaid internships and volunteer work
What are the prohibited grounds of discrimination in employment
- Race
- Colour
- Ancestry
- Place of origin
- Ethnic origin
- Citizenship
- Creed
- Sex
- Sexual orientation
- Gender identity
- Gender expression
- Age
- Record of offences
- Marital statue
- Family status
- Disability
What are additional grounds of discrimination?
Discrimination because of association: The Code protects an individual from being discriminated against because of their relationship with people identified by a prohibited ground
Discrimination through reprisal: The Code also provides that people have the right to enforce their rights under the Code without reprisal
What happens with discrimination not covered by the Code
Someone who is discriminated against on the basis of a ground not covered in section 5 cannot file an application under the Code
What are the exemptions where discrimination is allowed?
- Special Service Organizations (Section 24(1)(a))
- Bona Fide Occupational Qualifications (Section 24(1)(b))
- Medical or Personal Attendants (Section 24(1)(c))
- Nepotism Policies (Section 24(1)(d))
- Special Programs (Section 14)
Wk11 - Slide 12 Recruitment, selection and hiring
