Looking Forward: What’s on the horizon?

It’s not always enough to understand and apply the law as it stands today.  Employers also need to look to the future in order to make good decisions in the present. This is because today’s decision may be scrutinized by a court or tribunal at some point in the future and any transitions in the law between now and then will affect outcomes. With that in mind, here are some of the trends we’re watching on behalf of our clients.

Workplace Safety & Insurance Board

• The Ontario Human Rights Tribunal has ruled that it has jurisdiction to hear a complaint that a workers’ compensation provision violates the Human Rights Code. The claim is related to gradually-arising mental stress in the workplace.

Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 1513 (CanLII)

Human Rights Tribunal¹

• On November 9, 2012, Andrew Pinto released his report reviewing the new Human Rights structure which came into effect in 2008. Some of his findings:
  • The Legal Support Centre (for applicants) is overwhelmed by demand, with the result that the majority of applicants are unrepresented, while the majority of respondents are represented.
  • The system overall is underfunded.
  • More attention should be paid to filter unmeritious applications at an early stage.
  • Compensatory awards for mental anguish have NOT, on average, increased since the removal of the $10,000 cap. The Pinto report recommends that these awards should be significantly increased.
  • The government should consider amending the Code to provide the Tribunal with the jurisdiction to award costs.

The Construction Sector #1²

• Construction investment, particularly in the industrial sector, is expected to significantly increase over the next 5-7 years.
• The available workforce is not sufficient to meet the demand. Required net in-mobility from outside the sector is estimated to be 40,000 workers between now and 2021.
• Those workers will need to be mobile as projects move across the country.

The Construction Sector #2

• We also understand that the construction sector should expect greater scrutiny on human rights issues. Construction unions are indicating that they intend to take a more activist position than they have historically.

Precarious work³

• Only 60% of workers in the GTA have stable, secure jobs. 40% have what is being termed “precarious work”.
• Factors to determine “precarity” were:
  • Not paid if work missed
  • Not in a standard employment relationship
  • Unstable weekly income
  • Unstable hours worked
  • On-call work
  • No advance schedule
  • Paid in cash
  • Temporary
  • No benefits
  • Weak voice at work
• Note – level of income was NOT a factor. Precarity is widely distributed among social and economic classes.
• One effect of precarious work is greater stress, not only for the income earner but for the entire family, including children. Other effects are delayed childbearing; difficulty accessing childcare; fewer social supports.

New national standard for psychological health and safety in the workplace⁴

• Canada’s Mental Health Commission says illnesses related to mental health account for almost 30 percent of short- and long-term disability claims in this country. In some sectors, the number is closer to 50%.
• Mental health issues also contribute to “presenteeism”, decreased performance, reduced safety, and decreased workplace morale.
• The Canadian Standards Association (CSA) issued Standard #Z1003-13, titled Psychological health and safety in the workplace – Prevention, promotion, and guidance to staged implementation (“the Standard”), on January 16, 2013.
• The purpose of the Standard, according to the CSA, is to provide a framework to create and continually improve a psychologically healthy and safe workplace. Factors to be assessed include:
  • Psychological support;
  • Organizational culture;
  • Clear leadership and expectations;
  • Civility and respect;
  • Psychological job demands;
  • Growth and development;
  • Recognition and reward;
  • Involvement and influence;
  • Workload management;
  • Engagement;
  • Work/life balance;
  • Psychological protection from violence, bullying and harassment;
  • Protection of physical safety;
  • Other chronic stresses identified by workers.
• It is modelled on other health and safety standards, and requires that an organization “establish, document, implement and maintain a psychological health and safety management system (PHSMS) in the workplace and continually improve its effectiveness in accordance with the requirements of this Standard.”
• Compliance with the Standard is voluntary at this time. It remains to be seen whether it will become a factor when Courts and arbitrators are considering employer conduct, ie. whether this will be accepted as a “best practices” outline. However, there is no question that employers will continue to be under increasing pressure to take psychological health issues into consideration in their decision-making.

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¹ Report of the Ontario Human Rights Review 2012, Andrew Pinto, November 1, 2012.

² From the Construction Sector Council presentation, Insight 6th Annual Biennial Construction Labour Relations Conference, March  2013.

³ From Dr. Wayne Lewchuk, School of Labour Studies and Department of Economics, McMaster University, presentation at Lancasters’ Human Rights and Accommodation conference, April 2013.

⁴ Psychological Health and safety in the workplace – Prevention, promotion and guidance to staged implementation, Standards Council of Canada, published January 2013. On-line here.