Will you still get benefits after 65?...The end of mandatory retirement and employment benefits

In January, 2008 British Columbia joined a number of other Canadian provinces and changed the Human Rights Code to prohibit discrimination against employees who are sixty five years or older. The immediate impact is that collective agreement provisions that say employees must retire at age sixty five are no longer enforceable. How this will play out in the workplace remains to be seen. However it is clear that employers, and unions, will have to brush up on the meaning of the duty to accommodate when it comes to older employees in the workplace.

Another issue that has come up is how this amendment affects the availability of benefits to employees over the age of sixty five.

Under s. 3(b) of the BC Human Rights Code the prohibition on discrimination on the basis of marital status, physical or mental disability, sex or age, doesn't apply to "the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employee."(emphasis added)

The legislative intent then is clear that there can be different levels of coverage for employees depending on their age. But, this doesn't mean that group benefit or insurance plans (or indeed even retirement or pension plans) should not be reviewed to ensure that they meet the "bona fide" test outlined by the Supreme Court of Canada in Zurich Insurance Co. v. Ontario Human Rights Commission http://scc.lexum.umontreal.ca/en/1992/1992rcs2-321/1992rcs2-321.html.

To justify a discriminatory plan (and remember, age is only one way that they can discriminate)
the employer will have to establish the following:

1. that the plan was adopted honestly, in the interests of sound and accepted business practice, and not for the purpose of defeating the rights protected by the Code (i.e. for the purpose of discriminating for example)

2. the age-based distinction was based on a sound and accepted insurance or pension practice; and

3. there was no practical alternative to the age-based distinction, having regard to all the facts of the case.

In my view it is the last point that may generate some results. It's important for unions to put the employer to the test, particularly at the bagaining table. Unions, as well as employers, should investigate the availability and the cost of benefit plans that have no age or a higher than usual age limit. It seems to me that the range of practical alternatives will have to broaden as more and more people work beyond the traditional retirement age.

It's also important to look closely at the collective agreement language to see whethere there is an obligation on an employer to continue to provide health benefits beyond age sixty five.

A recent arbitration award out of Ontario Corporation of the City of London and CUPE Local 101 found that where a collective agreement provides benefits to "all employees" the effect of the elimination of mandatory retirement meant that employees over sixty five were covered.

An expedited process for harassment complaints

The grievance arbitration process is often an inadequate tool to resolve harassment disputes. One significant drawback is that it takes too long from the time a grievance is filed until it is heard at arbitation. Partly, that is because collective agreements, quite properly, set out various stages of the grievance procedure to allow the parties the opportunity to discuss and try to resolve matters without resorting to arbitration. More significantly though it is because once the discussion stages are completed it takes months to get to a hearing and get decision from an arbitrator.

Meanwhile, the harassment complaint languishes unresolved, with the victim at home sick with depression or some other form of mental distress, the alleged harasser in the workplace also unsure of what his or her future might hold, and the amount of potential damages that the employer may have to pay in the end increases.

So it's refreshing when arbitrators, rather than awarding the usual systemic remedy directing an employer to institute a policy and tell the union about it, take the extra step and impose a speedy arbitration process of harassment grievances. Vince Ready did just that in a decision issued February 6, 2008 involving CUPE Local 394. In its submission the union had proposed an expedited process and, to its credit, the employer did not oppose the proposal.

For a period of two years, which roughly coincides with the remaining term of the collective agreement, Mr. Ready ruled that harassment issues will be dealt with as follows:

A. There will be a three member panel made up of Vince Ready as chair and sole decision maker, Naz Mitha or Fran Doyle as the employer advocate and advisor to the chair and Carmela Allevato as the union advocate and advisor to the Chair.

(Comment: On behalf of the Union, I urged that there be a standing panel to deal with these kinds of issues so that we would be able to monitor the changes in workplace culture and to make systemic recommendations.)

B. Prior to bringing any matter before the panel, the union must present the matter to the employer's representative, in writing, to allow the employer ten days to attempt to resolve the matter. Similarly, the employer must present any matter to the union executive, in writing, to allow the union ten days to attempt resolution. In either case, if resolution cannot be reached within ten days, subject to the mutual agreement of the parties to extend the time to effect a resolution, the matter may come before the panel for a determination.

(Comment: There are two important features to this section. The most significant one of course is the ten day time limit. If the parties can't resolve a complaint within ten days it goes to the panel. The other feature is that the matter has to be presented in writing. This in my view is more than just the usual "failure to provide a harassment-free workplace". It forces the parties to do more work at the front end of an issue with a view to being precise about the complaint and the remedy sought.)

C. The determination of any issue brought to the panel under this expedited process will be non-precedential unless the parties (Union and Employer) mutually agree otherwise.

D. The parties agree that to the extent necessary to effect the recommendations herein, this document supersedes the grievance/arbitration procedure under the Collective Agreement between the parties.

(Comment: Here we find recorded the agreement between the union and the employer that they are willing to try a different way to address these issues. Note that agreement is necessary because an arbitrator does not have authority to amend the collective agreement.)

E. In coming to any decision or resolution, the panel will have regard to not only the issues, but a broader context of the appropriate educational programs for the City staff and Works Yard employees and will make recommendations to that effect.

(Comment: This section deals with the fundamental issue that underlies the creation of a respectful workplace. It is not enough to deal with the individuals directly or immediately affected by the harassment. Those on the periphery of the harassment are essential to the culture shift that is required if we are ever to end this blight.)

Will this process work? We don't know, but we will have an ability to measure, by the end of the two years, whether progress has been made. To quote Mr. Ready:

Such a procedure hopefully will help the parties come to a better understanding of the appropriate norms of acceptable workplace conduct but more importantly, will provide quick execution of future claims (unlike the present case which has taken nearly five years to conclude).

read local paper report at the link below:

http://www.canada.com/richmondnews/news/story.html?id=238212bf-8695-4709-b73c-c3a2fcc34e8f

More on Harassment--lessons from Quebec

I've been asked to participate on a talk show on the topic of workplace harassment and bullying this afternoon. While preparing for Christy Clark's show, I decided to check out the Quebec Labour Standards Commission report on the first three years of their legislation that prohibits workplace psychological harassment. Psychological harassment is described as "any vexatious behaviour in the form of repeated or unwanted conduct, verbal comments, actions, gestures that affect an employee's dignity or psychological integrity and that results in a harmful work environment for the employee. A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment." Collective agreements are deemed to contain a provision prohibiting psychological harassment. Accordingly complaints that are handled by the Commission tend to be from non-union employees, since unionized employees have access to the grievance procedure.

The facts were astounding and provide good support for similar legislative change in other provinces. The Quebec legislation became effective in June 2004. By June 2007 the Commission had received 6850 complaints from non-union employees. In 75% of the complaints the employer or an employer's representative was identified as the harasser. Over 60% of the complainants were women. 50% of the complainants had tried to resolve the complaint directly on their own before filing the complaint with the Commission and failed. Once filed, there was a 90% rate of resolution without hearing with assistance from Commission staff. About half of the complaints that went to hearing were upheld.

Adoptive mothers entitled only to parental leave

Adoptive mothers are not entitled to the same level of maternity benefits as biological mothers. That's the effect of a January 24, 2008 decision of the Supreme Court of Canada denying leave to appeal to a a woman who, after adopting two children, sought parental and maternity benefits under the Employment Insurance Act. She was awarded the 35 weeks of parental benefits, but not the additional 15 weeks of maternity benefits on the basis that the latter were for the purpose of allowing biological mothers recover from pregnancy and childbirth.
The case is Patti Tomasson v. Attorney General of Canada (F.C.) . The Federal Court of Appeal decision can be found at the following link:
http://decisions.fca-caf.gc.ca/en/2007/2007fca265/2007fca265.html