Workplace Issues for Engineers

1
Workplace Issues forEngineers Geoscientists

• G.E. 401 March 21, 2006
• Bob McDonald, P.Eng., LL.B.
• Director of Membership Legal Services
• APEGS

2
Purpose of Presentation

• Create an awareness of workplace issues and
  obligations for engineers and geoscientists,
  including
• Identifying the capacities in which workplace
  issues and obligations may arise and
• Identifying the sources creating workplace
  obligations and outlining the obligations
• Reliance will be placed upon statutes and
  regulations and examples taken from court
  decisions

3
Capacities ofEngineers and Geoscientists

• The conduct of an engineer or geoscientist may
  come under scrutiny in a variety of capacities
  including
• Employee or worker
• Supervisor or Manager
• Employer
• Owner (including trustee, receiver, mortgagee in
  possession, tenant, lessee or occupier) or agent
  or delegate of an owner
• Contractor or contractors agent

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Sources ofWorkplace Obligations

• Workplace obligations may originate in any one or
  more of the following
• The Occupational Health and Safety Act, 1993 and
  Regulations
• The Saskatchewan Human Rights Code
• Canadian Charter of Rights and Freedoms
• The Engineering and Geoscience Professions Act
  and Bylaws
• Collective Bargaining Agreements

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The Occupational Healthand Safety Act, 1993 (s.
3)

• General duty on employer to
• ensure the health, safety and welfare at work of
  all of the employers workers
• ensure that the employers workers are not
  exposed to harassment at the place of employment
• cooperate with other persons exercising a duty
  imposed by the Act and
• comply with the Act and regulations

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The Occupational Healthand Safety Act, 1993 (s.
4)

• General duty on worker at work to
• protect his or her health and safety and that of
  other workers affected by actions or omissions
• refrain from causing or participating in the
  harassment of another worker
• cooperate with other persons exercising a duty
  imposed by the Act and
• comply with the Act and regulations

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The Occupational Healthand Safety Act, 1993 (s.
5)

• General duty on self-employed person to
• conduct his or her undertakings in such a way as
  to ensure that he or she and workers employed by
  him or her on or about the same place of
  employment who may be affected by the undertaking
  are not exposed to risks to their health and
  safety
• cooperate with other persons exercising a duty
  imposed by the Act and
• comply with the Act and regulations

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The Occupational Healthand Safety Act, 1993 (s.
6)

• General duty on contractor to
• ensure that every place of employment or
  worksite, or work process or procedure carried on
  at every place of employment, where work is
  carried on pursuant to a contract between the
  contractor and an employer or self-employed
  person that is not in the direct control of the
  party contracted with, is safe for, without risk
  to the health of and adequate with regard to
  facilities for the welfare of, all employers,
  workers or self-employed persons at the place of
  employment and
• comply with the Act and regulations

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The Occupational Healthand Safety Act, 1993 (s.
7)

• General duty on owner of any plant used as a
  place of employment
• ensure that any area of the plant or activity
  occurring in or on an area of the plant that is
  not in the direct and complete control of any
  contractor, employer or self-employed person is
  maintained or is carried on in compliance with
  the Act and regulations and does not endanger the
  health or safety of any contractor, employer,
  worker or self-employed person who works on or in
  the plant and
• comply with the Act and regulations

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The Occupational Healthand Safety Act, 1993

• Some definitions
• worker means a person who is engaged in an
  occupation in the service of an employer
• employer means a person, firm, association or
  body that has, in connection with the operation
  of a place of employment, one or more workers in
  the service of the person, firm, association or
  body

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The Occupational Healthand Safety Act, 1993

• Further definitions
• contractor means a person who, pursuant to one or
  more contracts, directs the activities of one or
  more employers or self-employed persons involved
  in work at a place of employment
• self-employed person means a person who is
  engaged in an occupation but is not in the
  service of an employer

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The Occupational Healthand Safety Act, 1993

• owner includes
• A trustee, receiver, mortagee in possession,
  tenant lessee or occupier of lands or premises
  used or to be used as a place of employment and
• Any person who acts for or on behalf of a person
  mentioned above as that persons agent or delegate

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The Occupational Healthand Safety Act, 1993

• harassment means any objectionable conduct,
  comment or display by a person that
• is directed at a worker
• is made on the basis of race, creed, religion,
  colour, sex, sexual orientation, marital status,
  family status, disability, physical size or
  weight, age, nationality, ancestry or place of
  origin and
• constitutes a threat to the health or safety of
  the worker

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The Occupational Healthand Safety Act, 1993 (s.
57-58)

• Failure to discharge the identified duties is an
  offence with penalty
• single, isolated offence fine not exceeding
  10,000 continuing offence further fine not
  exceeding 1,000 per day that it continues
• second or subsequent offences fine not
  exceeding double the above

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The Occupational Healthand Safety Act, 1993 (s.
60)

• Where a corporation is guilty of an offence every
  officer, director, manager or agent of the
  corporation who directed, authorized or
  participated in the commission of the offence is
  also guilty of the offence and subject to the
  penalties identified

16
The Occupational Healthand Safety Act, 1993

• For workplaces with 10 or more workers, there is
  an obligation to create an occupational health
  and safety committee
• The regulations require the employer, in
  consultation with the committee, to develop a
  harassment policy
• Example City of Saskatoon Respectful Workplace
  Policy (replacing Sexual Harassment policy)

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The SaskatchewanHuman Rights Code (s. 9)

• Right to engage in occupations
• Every person and every class of persons shall
  enjoy the right to engage in and carry on any
  occupation, business or enterprise under the law
  without discrimination on the basis of a
  prohibited ground

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The SaskatchewanHuman Rights Code (s. 16)

• Discrimination prohibited in employment
• No employer shall refuse to employ or continue to
  employ or otherwise discriminate against any
  person with respect to employment on the basis of
  a prohibited ground
• No employee shall discriminate against another
  employee on the basis of a prohibited ground

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The SaskatchewanHuman Rights Code (s. 17)

• Right to membership in professional and trade
  associations
• Every person and every class of persons shall
  enjoy the right to membership, and all the
  benefits appertaining to membership, in any
  professional society or other occupational
  association without discrimination on the basis
  of a prohibited ground

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Prohibited Grounds

• Religion
• Creed
• Marital status
• Family status
• Sex
• Sexual orientation
• Disability
• Age

• Colour
• Ancestry
• Nationality
• Place of origin
• Race or perceived race
• Receipt of public assistance

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The SaskatchewanHuman Rights Code

• Investigation initiated by complaint alleging
  contravention of Act or where Human Rights
  Commission has reasonable grounds to believe
  contravention of Act
• May be mediation or efforts of negotiated
  settlement

22
The SaskatchewanHuman Rights Code

• An inquiry may be held before a Human Rights
  Tribunal
• Settlement or decision or order of tribunal may
  be made public
• Order can be registered as a judgment
• Decision and order of a tribunal may be appealed
  to Court of QB

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Canadian Charter ofRights and Freedoms

• Part of the Constitutional Package in Canada in
  1982 (implementation delayed until 1984)
• Applies to the relationship between governments
  and government agencies and the public
• Does not apply to relations between individuals

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Canadian Charter ofRights and Freedoms

• 15. (1) Every individual is equal before and
  under the law and has the right to the equal
  protection and equal benefit of the law without
  discrimination and, in particular, without
  discrimination based on race, national or ethnic
  origin, colour, religion, sex, age or mental or
  physical disability.

25
APEGS Code of Ethics

• Members and licensees shall . . .
• hold paramount the safety, health and welfare of
  the public and the protection of the environment
  and promote health and safety within the
  workplace (emphasis added)
• conduct themselves with fairness, courtesy and
  good faith towards clients, colleagues, employees
  and others give credit where it is due and
  accept, as well as give, honest and fair
  professional criticism (emphasis added)

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Collective Agreement

• In some cases, the conduct may be subject to a
  Collective Bargaining Agreement
• In Blomander v. Canada Post Corp. the Court held
  that the issue was working conditions which was
  within the collective bargaining agreement and
  that the Court did not have jurisdiction

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Collective Agreement or Human Rights Code?

• In Cadillac Fairview Corp. Ltd. v. Saskatchewan
  (Human Rights Commission), Cadillac Fairview
  contended a sexual harassment complaint was
  subject to the collective agreement and sought an
  order preventing the Human Rights Commission from
  conducting a hearing
• The Court of Appeal held that The Saskatchewan
  Human Rights Code applied as it was a human
  rights violation rather than a collective
  agreement issue

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Examples Personal ConductAPEO v. Karmash

• Discipline committee found Karmash guilty of
  professional misconduct for harassment and
  discriminatory conduct towards female engineer
• No physical contact or sexual impropriety, and
  only for short period of time

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APEO v. Karmash (contd)

• Discipline committee imposed one year licence
  suspension and ordered the taking of a gender
  sensitivity course
• Karmash appealed to Court argued conduct not
  relevant to practice of professional engineering
• Court upheld finding of professional misconduct
  and requirement for course, but reduced
  suspension to four months

30
Personal ConductSimpson v. CAC

• Executive director of CAC dismissed for alleged
  sexual harassment of female employees and
  creation of sexually infused office environment
• Simpson sued for wrongful dismissal
• Six impugned incidents involving staff
• Ontario CA reversed lower court and held
  dismissal for cause

31
Personal ConductDotchin v. WCB

• Dotchin was assistant to Director of Client
  Services for WCB in Sask.
• Dotchin was aware of WCB policies attended
  training seminar with respect to harassment
• Dotchin was terminated for sexual harassment and
  sued for wrongful dismissal

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Dotchin v. WCB (contd)

• The Court found that
• Conduct involved leering, looking at the bodies
  of female employees in an inappropriate manner
  and making sexually suggestive comments
• Dotchin held management supervisory position
  and knew of zero tolerance policy
• Dotchin had been warned about his conduct
• WCB was justified in terminating Dotchins
  employment

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Examples ManagementHemmings v. UofS

• Hemmings was a professor at the UofS
• She was harassed in her office, lab and animal
  colony, and her research projects were sabotaged
  by her ex-boyfriend
• She sought protection for herself and her lab
  research from the University

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Hemmings v. UofS (contd)

• She sued the University, Dean and Department Head
  for violating The Occupational Health and Safety
  Act
• She also claimed the Faculty Assn failed to
  ensure the integrity of her person and the
  workplace
• Court of QB did not strike claim against UofS,
  Dean or Department Head

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Hemmings v. UofS (contd)

• Court of Appeal held that the claim was one that
  came within the collective agreement and
  dismissed it against the University
• The claims against the Dean and Department Head
  were as agents and not personal, so were
  dismissed (note Court recognized capacity as
  agents)

36
ManagementKatsiris v. Isaac

• Isaac made a complaint to the Human Rights
  Commission alleging sexual harassment by her
  supervisor
• Conduct included
• inappropriate comments
• hair smelling incidents
• butt slapping incidents
• personal questions
• Jell-o incident
• inappropriate request incident

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Katsiris v. Isaac (contd)

• The complaints were not resolved pursuant to The
  Saskatchewan Human Rights Code and a inquiry took
  place
• The Board ruled that Isaac was sexually harassed
  and that Beef-Eaters Restaurant Ltd. (employer)
  and Katsiris (manger) were responsible for the
  supervisors (the harassers) actions

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Katsiris v. Isaac (contd)

• The Board found that the employer was
  (Beef-Eaters) and Katsiris was a person acting on
  behalf of an employer as contemplated by the Code
• Katsiris appealed to the Court of QB
• Court held that Katsiris was not personally
  liable because he was not guilty of wrongdoing or
  countenancing it

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Conclusions

• Engineers and geoscientists will be responsible
  for their personal conduct and consequences may
  include dismissal, professional discipline, human
  rights tribunal
• Managers and supervisors may be responsible for
  the conduct of the employees they manage or
  supervise
• Agents and representatives may be responsible for
  worksites, etc.