Canada: Barring Persons Under 18 From "Risk-Sensitive Positions" Not Only A Right, But An Obligation For Employers

Context

On November 12, 2011, arbitrator Jean-Louis Dubé affirmed that employers have not only the right, but the obligation to bar individuals under 18 years of age from jobs that are likely to be detrimental to their health and physical or moral development. According to the arbitrator, such a prohibition is permitted under the law – specifically the Act respecting labour standards (the ALS). The decision is the first in Quebec to come to this finding.

The arbitrator also found such a prohibition to be a bona fide occupational requirement (BFOR) within the meaning of the Charter of Human Rights and Freedoms (Charter).

Facts

A union contested a meat processing company's policy prohibiting individuals under 18 years of age from occupying risk-sensitive (dangerous) positions – i.e. any position that, in the event of mechanical breakdown or human error, may cause serious injury or death (prohibited positions). The union argued that the policy violated the Charter by discriminating on the basis of age.

Uncontradicted evidence presented before the arbitrator demonstrated the potentially very dangerous nature of the work involved as well as the existence of significant risk factors, including the use of knives, saws and blades, the pace of work, repeated movements, noise, artificial light and long hours of work without any job rotation.

The medical evidence clearly showed that the psychological characteristics of persons under the age of 18 were not compatible with the above risk factors. According to a child psychiatrist who presented expert testimony before the arbitrator, impulsiveness, defiance of authority, lack of accountability, trouble concentrating and an instinct for self-harm are marked tendencies among people in that age group. According to the child psychiatrist, when juxtaposed with the risk factors associated with the prohibited positions, these characteristics are a source of significant danger for such individuals.

Decision

Upon analyzing the applicable principles and in the face of clear and uncontradicted evidence, the arbitrator rejected the grievance. There are only two situations where discrimination based on age in employment is legitimate under the Charter – where the distinction is made under the law and where it results from a BFOR – and both of these exceptions are present in this case.

Distinction made under the law

Under section 84.2 of the ALS, no employer may have work performed by a child that is likely to be detrimental to the child's health or physical or moral development. According to the arbitrator, the term "child" in section 84.2 is to be construed as meaning persons under the age of 18. Therefore, as the prohibited positions in this instance are likely to be detrimental to the health or physical or moral development of such persons, establishing a distinction based on age is permitted under the law – more specifically, the ALS.

The arbitrator further stated that the fact that the lawmaker had set a minimum age of 16 for the position of lift truck operator (one of the prohibited positions) did not in any way prevent the employer from establishing a higher minimum age for that position. Indeed, due to the requirements imposed by the Civil Code of Quebec, the ALS and the Act respecting occupational health and safety, the employer not only may, but, considering the particular risks associated with the work environment, must bar individuals under the age of 18 from such positions.

Existence of a BFOR

According to the arbitrator, the prohibition at issue is a BFOR. Although individual psychological assessments could have been conducted, the evidence shows that such assessments are very costly – between $1,200 and $1,500 – particularly when half the individuals under the age of 18 leave the company at the end of the summer. Moreover, even if assessments had been carried out, they would not have enabled the employer to determine whether the persons involved could safely perform the tasks required for the prohibited positions. The arbitrator therefore found that the possibilities for accommodation created an excessive constraint.

Conclusion

In making staffing and personnel management decisions, businesses must take into account the major obligation that the law imposes on them when it comes to risk-sensitive positions. This obligation clearly applies to persons under 18 years of age. According to arbitrator Dubé's decision, pursuant to section 84.2 of the ALS, an employer not only may, but must bar individuals under 18 years of age from certain types of jobs if those jobs present a risk of harm to health or physical or moral development.

Norton Rose Group

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit nortonrose.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.