LABOUR AND ENVIRONMENTAL LAW #, 390 an employee a wage premium (extra hourly pay) in exchange for that employee's promise never to take a vacation, the legislation would not work-in a tight employment market, employees would agree to uncon. unconscionable: scionable (unfair, in the opinion of the average observer) contracts just y unreasonable get a job, and the unfair bargains made through such negotiations would quickly become labour market standards. On the other hand, the minimum standards set by this type of legisla. tion are exactly that-minimums. It is possible for the parties to negotiate, either individually or collectively (i.e., through labour unions), for higher standards, such as three weeks of annual vacation instead of two. Enforcing the Law Learn more about the Most investigations into breaches of the ESA are in response to complaints Ontario Employment from a worker or group of workers. Government inspectors then look into Standards Act at the complaint. In some cases, the government inspectors may investigate www.emp.ca/ without a complaint being made. dimensionsoflaw Many of the issues relating to the enforcement of the employment standards set out in the labour codes are decided in courts of law. The fol- lowing case illustrates how one situation was decided in the courts. Case STRANDED IN DENVER Horrill/Seller v. Garden Grove Produce Imports Ltd. (1995), 97 di 145 (Can. LRB) Facts Greg Seller was hired by Garden Grove on December 27, 1994 as a long- haul truck driver. He left for his first trip-to Texas-on December 28, and delivered his load on December 31. He was then instructed to pick up two separate loads in two other Texas towns and to return with these to Calgary. The employer had promised delivery for January 5. Seller left Donna, Texas on January 1, 1995 with his load of perish- able fruit. He took a different route than that suggested by his employer. His route, though several miles west of the prescribed route, was on bet- ter roads, and the evidence was inconclusive as to whether there was a significant difference in travel time between the two routes. At any rate Seller alleged that he was entitled to set his own route, subject to the employer's right to pay him for the mileage of the suggested route. On January 3, 1995, Seller called his employer from Albuquerque, New Mexico, to advise that he was "running out of hours." While driv ing in the United States, Canadian truckers are subject to US legislation relating to maximum driving time without a rest day ( or days). In this case, the legislation required a minimum of 48 hours' rest after 70 hours391 Chapter 18 / THE GOVERNMENT AND THE WORKPLACE of driving time within any eight-day driving period of consecutive days' driving. Seller, who had only five driving hours left, and his employer had a phone conversation, the facts of which were in dispute, Seller alleging he was offered no 24-hour break and Garden Grove alleging that Seller advised he could not deliver by January 7, already two days late. As a result of the conversation, Garden Grove arranged to fly a manager to Denver (allegedly the closest town to Albuquerque for which a flight could be arranged) and ordered Seller to drive to Denver (a nine-hour drive). Seller drove to Denver and was met by the manager. What was said between the two was in dispute at trial, but the result was that Seller was left in Denver after being denied a ride back to Winnipeg and under- stood that he had either been dismissed or been forced to resign. He had no funds to travel back to Canada, and had to contact several agencies, including Traveller's Aid, the Salvation Army, and the Canadian Consulate Trade Office, for assistance getting home. Upon his return, Seller filed a complaint under the Canada Labour Code, which regulates certain kinds of labour in the federal jurisdiction (including international trucking). Issues Seller alleged that he was dismissed as a result of exercising his right to refuse unsafe work (driving overtime without a rest period). The employer denied that it had dismissed Seller, but claimed that Seller had resigned. The employer also alleged that Seller failed to comply with the necessary procedure for a work refusal, which, under the Code, requires giving notice to a health and safety representative. Decision The court found, based on its review of the conflicting facts, that Seller was intentionally stranded in Denver, and that even though he may never have been told that he was fired, he was in fact dismissed. The court also found that Seller's dismissal was indeed a reprisal for the exercise of his right to refuse unsafe work, and that it was reason- able on Seller's part to believe that the work was unsafe because of the legislated requirement for a rest period. Finally, the court found that Seller's failure to follow the require- ments of the legislation regarding work refusal did not mean his claim should be dismissed. No investigation could have been carried out at the time anyway, and the employer also failed to contact a representa- tive, as it was required to do in light of Seller's refusal to work. The court ordered Seller reinstated (if he wished to be) and com- pensated for lost wages and for the cost of returning to Winnipeg.407 Chapter 4 / THE GOVERNMENT AND THE WORKPLACE Reviewing Main Ideas All the parties agreed that Ennis was qualified You Decide! to do the job, and that during her short tenure as manager she did nothing that would provide grounds for termination for just cause. All the MARRIED TO A MURDERER parties also agreed that the reason for Ennis's ter- mination was her relationship with David Ennis. Saskatchewan (Human Rights Commission) v. Prince Albert Elks Club Inc. (2000), 193 DLR The Law (4th) 549 (Sask. CA) The Saskatchewan Human Rights Code (the Code) has as its objects: This case is an appeal by the Saskatchewan Human Rights Commission of the ruling, by a Board of 5. 3(a) To promote recognition of the inherent Inquiry constituted under the Saskatchewan Human human dignity and the equal inalienable Rights Code, that the firing of a club manager because rights of all members of the human fam- of her marriage to a convicted murderer did not con- ily; and stitute discrimination on the basis of marital status. (b) To further public policy in Saskatchewan, that every person in Saskatchewan is free Facts and equal in dignity and rights and to In June 1998, Heather Ennis, a 51-year-old woman, discourage and eliminate discrimination. applied for and obtained the position of manager of the Elks Club in Prince Albert, Saskatchewan. Discrimination in employment on the basis of She began work on July 15 and worked until she marital status is prohibited under the Code. took three days off, beginning July 26. However, the definition of discrimination on the On July 26, Ennis checked into the Saskatch basis of marital status is limited by a regulation ewan penitentiary for a three-day conjugal visit that reads as follows: with her husband of five years, David Ennis, In Marital status means that state of being engaged 1982, David Ennis had been convicted of the vio- [to be] married, married, single, separated, lent murder of his children and his children's divorced, widowed or [living] in a common law grandparents, and was sentenced to 25 years with- relationship, but discrimination on the basis of out parole. He and Heather met through a com- a relationship with a particular person, is not mon friend while David was incarcerated, and discrimination based on marital status. they were married in 1993. When Ennis arrived at the penitentiary for her Case law in the area of discrimination on the three-day visit, she was recognized by a member of basis of employment suggests that the essence of the Elks Club working at the penitentiary. discrimination is the differential treatment of a Inquiries on the part of the club revealed that person because of either: Heather was the wife of David Ennis, a murderer. On July 29, the board of the club held a meeting . the fact of his or her status as a married or that resulted in Heather's termination. single person. For example, an employer cannot decide to hire only single people;408 limit the definition of marital status discrimina tion in the way the Saskatchewan law does.) . the membership of a person's spouse in a particular class of people. For example, one Argument of the Elks Club (Respondent) case held that it was not acceptable for an In coming to their decision to fire Heather Ennis employer to deny a person employment on members of the club's board were motivated by the basis of a policy of not hiring spouses two concerns: that her association with her husband of existing employees (the person's wife posed a "security risk" for members in that conf was already working for the employer). dential communications between members might Consider the two arguments below. be overheard by Heather and communicated to David, placing the members at risk. The second Argument of the Saskatchewan Human concern related to the fact that some members Rights Commission (Appellant) might be offended by the club's employment of a The Human Rights Commission argued that firing person who was married to a convicted murderer a competent and qualified employee on the basis The club contended that it was not the fac of her marriage was unreasonable, and that this that Ennis was married that mattered, rather the action fell within the definition of discrimination identity of the person she was married to, and the based on marital status-the firing had nothing to contended that the nature of the relationship- do with Ennis's qualifications or performance, whether marital or otherwise-would have made and would not have been done had she not been no difference to their decision. married. The Commission relied on a case in which the Make Your Decision CBC's firing of an employee based on her mar- 1. What were the facts in this case? riage to a prominent local figure was overturned. In that case, the employer alleged that the employ- 2. Explain how the Saskatchewan Human Rights ee's connection to the named individual affected Code limits the definition of discrimination the "perceived objectivity" of her reporting. The with respect to marital status. court held that this reason was not significant Summarize the key points made by both sides enough to excuse discrimination on the basis of in the case. marital status. (Note, however, that this case was + Dismiss or allow the appeal. Provide reasons decided under federal legislation that does not for your decision