Three recent decisions of Québec labour arbitrators address the application of the Québec Charter of Human Rights and Freedoms1 (the Charter) in the workplace, and raise the issues of civil status, freedom of expression, and inviolability, dignity and privacy.
The Charter governs human rights obligations in provincially regulated workplaces. The Charter prohibits discrimination and harassment on the basis of "race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap." The Charter protects a person's fundamental freedoms, "including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association." The Charter also safeguards rights including an individual's inviolability, dignity, honour, reputation and private life.
Breaches of Charter rights may give rise to monetary compensation, among other remedies, and intentional interference with these rights may justify the awarding of punitive damages.
Judges, arbitrators and administrative adjudicators continually wrestle with how to define the prohibited grounds of discrimination and the scope of the rights and freedoms protected by the Charter.
To help you to stay in the know, we provide here three recent examples of applications of the Charter in the workplace.
Number of Children in an Employee's Care and Civil Status
An employee who had been dismissed because of excessive absenteeism argued unsuccessfully that she had been discriminated against on the basis of her civil status as a single parent responsible for the care of six children.2 While the arbitrator agreed that single parenthood is a manifestation of civil status, he rejected the argument that the number of children that a person has in their care can be considered an aspect of their civil status. The arbitrator also found that the woman had failed to prove the link between her absences and her single parent status and therefore had failed to prove that her dismissal was a discriminatory result of her status.
Employer's Clothing Policy and Freedom of Expression
On a number of occasions, a factory worker wore shirts to work expressing his beliefs, including one that stated "God does not exist — www.rael.org."3 The employer suspended and ultimately dismissed the employee for breaching a workplace policy that prohibited religious messages on clothing. The arbitrator reinstated the employee, finding that the employer had breached the employee's freedom of expression and opinion by disciplining him for wearing the messages. The arbitrator stated that in order to justify a clothing policy that interferes with employee Charter rights, an employer must prove that he/she has a serious reason for, and a real and legitimate interest in, the implementation of such a policy.
Employer's Drug- and Alcohol-Testing Policy and Inviolability, Dignity and Privacy
The inviolability, dignity and privacy protections of the Charter play a central role in challenges to employer drug- and alcohol-testing policies. In a previous edition of the LEQ, we discussed a Québec Court of Appeal decision that held that policies implementing random drug- and alcohol-testing of employees in safety-sensitive positions are contrary to the Charter and are generally not justifiable.
An arbitrator more recently provided further guidance regarding the drafting of Charter-compliant drug- and alcohol-testing policies.4 The policy in question covered employees working at an oil refinery, a context that the arbitrator found — by its very nature — to demand strict safety measures.
Among a number of interesting findings, the arbitrator held that in the context of a high safety-risk industry, a policy may justifiably require drug- and alcohol-testing of employees transferring or being promoted into safety-sensitive positions. The arbitrator also stated, however, that in order to be validly consistent with the Charter, a policy should provide that tests will be undertaken in the least invasive fashion possible, given the circumstances.
Tips for Employers
The Charter plays an important role in a wide variety of workplace scenarios; the three cases discussed above are only examples. Given that case law regarding the Charter is continually evolving, it is important to stay up to date regarding legal developments. It is therefore also worthwhile to regularly review your workplace practices and policies to ensure they are Charter-compliant. Policies and practices that you may want to review include:
- drug and alcohol policies;
- dress codes and policies related to personal appearance;
- anti-nepotism and conflict-of-interest policies;
- job application forms and practices regarding information requested from job applicants;
- policies regarding the disclosure of criminal convictions; and
- attendance and absenteeism policies.
1. R.S.Q. c. C-12.
2. Syndicat des travailleuses et travailleurs du Delta Centre-Ville (CSN) et Delta Hôtels ltée opérant le Delta Centre-Ville et la Corporation des Hôtels Legacy, D.T.E. 2009T-832 (T.A.).
3. Syndicat des métallos, section locale 9414 et Transformateurs Delta inc., D.T.E. 2009T-744 (T.A.).
4. Shell Canada ltée et Travailleurs Unis du Pétrole du Canada, Section Locale 121 du S.C.E.P., AZ-50589632 (T.A.).
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.