Friday, January 30, 2015
SFL v Saskatchewan - What Comes Next? by Greg
Obviously, today's Supreme Court decision affirming a Charter right to strike (Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4) will have significant ramifications for Canadian labour law. And plenty of other observers are weighing in on what the decision might mean more broadly.
But what effect will it have on Saskatchewan's own laws governing strike activity?
The immediate impact is limited to a suspended declaration that the Public Service Essential Services Act, S.S. 2008, c. P‑42.2 ("PSESA") is invalid. Which means that in theory, the PSESA could stay on the books for up to a year.
But that delay might not be required if Saskatchewan's government decides to proclaim in force the new essential services provisions of the Saskatchewan Employment Amendment Act, 2014 ("SEAA") (PDF). The SEAA represented a retreat from some of the more obviously unconstitutional aspects of the PSESA, but might still be subject to challenge on the "substantial impairment" threshold which now applies to the right to strike (as well as the right to collective bargaining).
Meanwhile, some question will also arise as to the new rules setting limiting the availability of job action under the Saskatchewan Employment Act, SS 2014, c S-15.1 ("SEA"). While the SEA's restrictions are primarily process-oriented, they too might run afoul of a substantial impairment threshold - both in general terms, and particularly if they prove unduly onerous under the circumstances of a particular planned strike.
In sum, while we now know that the right to strike exists and the PSESA represents an unconstitutional violation, there's still plenty more to be done in assessing whether Saskatchewan's legislation is Charter-compliant in its effect on strike activity. And Saskatchewan's government may have to go back to the drawing board in a few more areas than it anticipated.
Thursday, January 8, 2015
Update on Overtime Pay for Saskatchewan Retail Workers by Greg
Following up on this post, Saskatchewan's provincial government has reversed its new "interpretation" of overtime rules governing retail employees. But that doesn't look to be the end of the story.
Below is the e-mail showing the instructions given to the staff of the Ministry of Labour Relations and Workplace Safety:
Of note, the Ministry appears to have been using the new interpretation eliminating overtime for retail work beyond 8 hours in any 24-hour period unless that period coincided with a calendar day as only the start of a "gradual phase-in". The eventual intention looks to have been to restrict the availability of overtime for all Saskatchewan workers - and it's not clear that such a change will be subject to any more transparency if applied more broadly. (In that respect, it doesn't appear that anybody other than the Ministry's staff and the Retail Council of Canada were informed of the above change at the time of implementation.)
Meanwhile, it's worth noting that the supposed pursuit of flexibility in the policy change runs in only one direction: while the elimination of overtime pay would offer employers more "flexibility" in requiring employees to work more for less pay, nothing in the Saskatchewan Employment Act or the new interpretation would offer any new flexibility for employees to decline that type of work or otherwise manage their schedule.
Update: Here's the followup instruction to Ministry employees about the end of the "pilot interpretation". I'm awaiting confirmation as to whether that interpretation was, or will be, applied to any actual employment standards complaints.
Tuesday, January 6, 2015
Saskatchewan Party Government Cuts Overtime Pay for Retail Employees by Greg
When the Saskatchewan Employment Act ("SEA") was passed to centralize Saskatchewan's employment and labour law in a single statute, it did not include any change to the rules governing overtime previously established by the Labour Standards Act ("LSA"). In fact, like the LSA (section 5), the SEA explicitly provides that for the purposes of calculating overtime pay, a "day" means any period of 24 consecutive hours: LSA, section 5; SEA, section 2-1(b)(i).
So it might come as a surprise that Saskatchewan's government is apparently interpreting the SEA to mean something else. But that's the message being sent by the Retail Council of Canada, which says (h/t to Western Employers' Counsel) that the SEA is being interpreted to short-shrift retail workers who work more than 8 hours in a 24-hour period spread out over more than one calendar day.
In principle, a new interpretation originating from the Ministry of Labour Relations and Workplace Safety which is contrary to the express terms of the SEA does not shield employers from their obligation to pay overtime. But if the Ministry (whose Employment Standards Division is responsible for processing and assessing employee complaints) is being directed not to give effect to the right to overtime, it's not clear that many retail employees will know that their statutory rights haven't changed. And the cost of giving effect to that right in the face of a hostile Ministry may prove far more onerous than most employees can afford.
As a result, the effect of the new "interpretation" may be to change the law applied to retail workers in practice, but without the usual transparency and debate that surrounds actual changes to statutory wording.
Monday, October 13, 2014
Signs of Life in the Saskatchewan Labour and Employment Blogosphere by Greg
For anybody still watching this space closely, it won't come as much surprise that I haven't followed up on my plans to post regularly about what's going on within the Saskatchewan labour and employment law scene - particularly some of the new developments surrounding the Saskatchewan Employment Act which is now in force. And I'll be looking to get back in the habit shortly.
But there's good news for those looking for some regular updates on labour law developments in Saskatchewan, as Keir Vallance has unveiled a new blog. See his first post on the questionable legality City of Saskatoon's transit lockout here, and a followup here.
Thursday, March 13, 2014
Violations of Privacy and Just Cause by Greg
Before his retirement, former Saskatchewan Information and Privacy Commissioner Dickson noted on several occasions that arbitral jurisprudence in Saskatchewan had limited the discipline which could be meted out to employees for breaches of privacy. See e.g. Regina Qu’Appelle Regional Health Authority (Re), 2013 CanLII 5640 (SK IPC) at para. 71, and 2012-2013 Annual Report (PDF) at p. 23.
Shortly after his retirement, a new arbitration decision has addressed exactly that point - and confirmed that repeated breaches of privacy may give rise to just cause for termination even on the part of an employee with an otherwise distinguished employment record.
In Health Sciences Association of Saskatchewan v Saskatchewan Association of Health Organizations, 2014 CanLII 5231 (SK LA) (Hood) ("HSAS"), the grievor was a 25-year employee of the Prairie North Health Region (the "Health Region") who had previously served as a supervisor/manager for approximately 10 years before returning to a position as a staff therapist.
In 2012, two incidents of the grievor seeking access to the Picture Archiving & Communication System (“PACS”) for purposes other than patient care came to the attention of the Health Region, resulting in a full audit of her use of PACS. The audit revealed that the grievor had accessed PACS to retrieve the personal health information of 99 different people who were not her patients, including "past and present co-workers, supervisors, senior management of the Employer, members of the immediate and extended family of the Grievor and well-known, prominent community members" (para. 57).
After meeting with the grievor seeking her response to the audit, the employer terminated her employment. The union argued that termination was excessive discipline for an acknowledged breach of policy, and that part of the problem arose out of a lack of awareness as to what policies actually governed employee access to personal health information.
Arbitrator Hood (for the majority of the arbitration panel) distinguished previous Saskatchewan cases which involved only a small number of violations of privacy. He concluded as follows at para. 244-245, 263-264:
This was not something the Grievor did on the spur of the moment, reacting to some momentary aberration that would dissipate with the passage of time. This was part of a plan to access at will the personal health information of those who were not her patients. PACS was the tool that allowed the Grievor to perpetrate the improper access. PACS is province-wide. In PACS the medical images are electronic and stored digitally. The digital information can be accessed on PACS by anyone with a password, anytime, from anywhere and by multiple persons at the same time from different locations. Gone are the days when the medical images were recorded on film and archived in file rooms. In those days the images could only be viewed where the film was physically located and only by those present at the time.
The temptation to access anyone on PACS proved too great for the Grievor to resist. The Employer’s Confidentiality Policies, the Codes of Conduct of the two governing professional bodies that licensed the Grievor, and HIPA were not enough to suppress this temptation.
Discharge is a heavy penalty and even more so when the person is a long-term employee with a clean disciplinary record. Discharge is the capital punishment for employee misconduct in collective bargaining agreements. However, in our view, discharge in these circumstances is just and reasonable.
PACS makes it easier to access confidential medical records surreptitiously. No one is standing over your shoulder or, for that matter, there to see if what you are doing is proper. It is improper to take advantage of this ease of access and succumb to any temptation to snoop into personal health information.
Accordingly, the majority of the panel upheld the grievor's termination.
Due to the large number of wilful breaches of privacy found by the arbitration panel, it is not clear that HSAS represents a substantial change in course from Saskatchewan's previous arbitral jurisprudence.
However, it does offer the first Saskatchewan example of a fact scenario which does cross the line from conduct which can be corrected, to disregard for privacy which goes to the core of an employment relationship. And the recognition that even an otherwise-admired worker may be terminated for failing to respect privacy law and policy may offer a signal as to the importance of patient privacy for employers and employees alike.