When is an employee discriminated against because of odours in
the workplace? In the recent decision of Gillis and Nova Scotia
(Public Service Commission), Re, (http://canlii.ca/t/gncqd), the Nova Scotia
Labour Board considered this issue. An employee advised management
that scents worn by co-workers caused him dizziness, nausea,
migraines, loss of appetite, insomnia, anxiety and depression. The
employee agreed to create scent-sensitivity signage and produce
emails and webcasts for employees about the importance of
The employee exercised his right to refuse unsafe work pursuant
to s.43(1) of the Occupational Health and Safety Act
because another employee was wearing a fragrant body spray. The
employee eventually agreed to return to work. Within two months
from the employee's return, co-workers complained that the
employee had made disparaging or threatening remarks about them.
The employee had previously been disciplined for similar conduct.
The employer made the decision to terminate. The employee claimed
the termination was discriminatory or punishment for refusing
The Board held that the termination was not influenced by the
employee's decision to exercise his right to refuse unsafe work
since no penalty had been imposed on him when the incident occurred
and because the employer had a track record of listening to and
responding to the employee's scent concerns. The Board stated
that subjective beliefs that scents caused harm was not sufficient
to trigger a right to refuse unsafe work. A similar result was
reached in Kovios v. Inteleservice Canada Inc. (http://canlii.ca/t/fsc8s) where an employee
alleged discrimination due to sensitivity to scents undetectable by
most. The Ontario Human Rights Tribunal held that the employee had
failed to explain the accommodation being sought and the employer
had made efforts to accommodate.
These cases demonstrate that employers must make efforts to
accommodate scent sensitivity. However, decision makers are alive
to the difficulties caused by the subjectivity of scent
sensitivity. An employer must be able to demonstrate that alleged
unsafe work conditions are reasonable, and propose concrete
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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