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MHR 523 (473)


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Human Resources
MHR 523
Al- Karim Samnani

MHR Chapter 4: Meeting Legal Requirements G OVERNMENT MPACT The federal and provincial laws that regulate the employee–employer relationship challenge the methods human resource departments use. Some laws, such as the Canada Labour Safety Code of 1968, make major demands on human resource departments. Federal and provincial governments often create special regulatory bodies, such as commissions and boards, to enforce compliance with the law and to aid in its interpretation.  Regulations: legally enforceable rules developed by governmental agencies to ensure compliance with laws that the agency administers. The involvement creates three important responsibilities:  First, human resource experts must stay abreast of the laws, interpretation of the laws by regulatory bodies, and court rulings. Otherwise, they will soon find their knowledge outdated and useless to the organization.  Second, they must develop and administer programs that ensure company compliance. Failure to do so may lead to the loss of government contracts, poor public relations, and suits by regulatory bodies or affected individuals.  Third, they must pursue their traditional roles of obtaining, maintaining, and retaining an optimal workforce. THE CHARTER OF RIGHTS ANDFREEDOMS Canadian Charter of Rights and Freedoms: Federal law enacted in 1982, guaranteeing individuals equal rights before the law. Content and Applicability of the Charter  Section 1: guarantees rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” o Can lead to different interpretations by different judges; every time a court invokes one of the rights or freedoms, it must determine if the infringement is justified.  Section 2: guarantees freedom of association, a very important aspect in industrial relations, especially for unions. o Whether the freedom to associate carries with it the right to bargain collectively and the right to strike, the main reasons for the existence of unions.  Section 15—the equality rights part— states in its first paragraph: o Every individual is equal before the law and under the law and has the right to the equal protection and 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. Areas of Application The Right to Bargain Collectively and to Strike: The court affirmed that Section 2 protects the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activities without penalty or reprisal. However, it also held that the rights to bargain collectively and to strike are not fundamental freedoms, but are statutory rights created and regulated by the legislature. Under this ruling, governments can curtail the collective bargaining process by limiting salary increases, legislating strikers back to work, and imposing compulsory arbitration. The Right to Picket: the Supreme Court ruled that the right to picket is not protected under the Charter because it applies only to situations involving government action. It follows that this right is not available to employees in the private sector, where the vast majority of workers are employed. Employers can ask for injunctions to restrict the number of pickets or any other reasonable limitation of picketing activity. The Right to Work: The court concluded that the objectives of mandatory retirement were of sufficient significance to justify the limitation of a constitutional right to equality if a province chose to impose one, with the limitation that this discriminatory practice be reasonable and justifiable. HUMAN R IGHTSLEGISLATION Scope Employment-related laws and regulations are limited in scope; their impact on the human resource management process is confined to a single human resource activity. Human rights legislation, however, is an exception. Its role is not limited to a single human resource activity. MHR Chapter 4: Meeting Legal Requirements Overview  Discrimination between workers on the basis of their effort, performance, or other work-related criteria remains both permissible and advisable.  Human rights legislation does permit employers to reward outstanding performers and penalize insufficient productivity. Its only requirement is that the basis for rewards and punishments be work- related, not based on a person's race, sex, age, or other prohibited criteria.  By and large, provincial laws mirror the federal law. The major exceptions are pay equity and employment equity. o Provincial human rights laws: All provinces and two territories have their own human rights laws and human rights commissions, with discrimination criteria, regulations, and procedures. The Canadian Human Rights Act The Canadian Human Rights Act: A federal law prohibiting discrimination; was passed by Parliament on July 14, 1977, and took effect in March 1978.  The act applies to all federal government departments and agencies, Crown corporations, and business and industry under federal jurisdiction. In areas not under federal jurisdiction, protection is given by provincial human rights laws.  Each of Canada's provinces and territories—with the exception of Nunavut, which is still under federal jurisdiction—has its own antidiscrimination laws, which are broadly similar to the federal law. Discrimination Defined: Webster's New World Dictionary of the American Language defines discrimination as: “a showing of partiality or prejudice in treatment; specific action or policies directed against the welfare of minority groups.” Discrimination is not defined in the Charter of Rights and Freedoms, nor in any federal or provincial human rights legislation with the exception of Quebec. Direct Versus Indirect (Systematic) Discrimination Bona fide occupational qualification (BFOQ): A justified business reason for discriminating against a member of a protected class. Systemic discrimination: Any company policy, practice, or action that is not openly or intentionally discriminatory, but has an indirect discriminatory impact or effect. Canadian Human Rights Commission (CHRC): Supervises the implementation and adjudication of the Canadian Human Rights Act. Race and Colour: the discrimination can be intentional or unintentional, subtle or very open National or Ethnic Origins: illegal for human resource decisions to be influenced by the national or ethnic origins of applicants or of their forebears. Hence, the discrimination process can be either direct or indirect. The refusal to hire or promote people because of their national or ethnic origins is a direct and obvious violation Religion: A person's religious beliefs and practices should not affect employment decisions. An employer must accommodate an employee's religious practices, unless those practices present undue hardship to the employer  Duty to accommodate: Requirement that an employer must accommodate the employee to the point of “undue hardship.” Age: The use of age as an employment criterion has also received considerable attention in the past. Many employers consider that the laying down of minimum or maximum ages for certain jobs is justified, although evidence is rarely available that age is an accurate indication of one's ability to perform a given type of work Sex: prevents discrimination on the basis of an individual's sex (often erroneously referred to as gender, which is a grammatical term; the act specifically uses the term sex). Not only is it illegal to recruit, hire, and promote employees because of their sex, it is unlawful to have separate policies for men and women.  The court established three new criteria to assess the appropriateness of a BFOQ: o Is the standard rationally connected to the performance of the job? o Was the standard established in an honest belief that it was necessary to accomplish the purpose identified in stage one? o Is the standard reasonably necessary to accomplish its purpose?  The new and stricter rules will make it more difficult for human resource managers to establish and defend BFOQs. Sexual Orientation: The issue of discrimination against same-sex relationships was effectively addressed by the Supreme Court of Canada when it decided that same-sex couples must be treated the same way as heterosexual couples. Marital Status: The idea of what constitutes a family has undergone considerable changes in Canadian society in recent years. Non-traditional families, such as those resulting from common-law marriages, or single-parent MHR Chapter 4: Meeting Legal Requirements families, are now far more numerous than in the past. But there is still a strong feeling that the traditional family is a unique institution deserving special consideration. Family Status: In a widely cited case regarding family status, the Canadian Human Rights Commission initiated action against the Canada Employment and Immigration Commission (CEIC).  Nepotism is a form of discrimination based on family status is something a Canadian airline found out. It had a policy of hiring the children of its employees for summer jobs. The CHRC ruled that this amounted to discrimination. Disability: No person should be denied employment solely for the reason of his or her being disabled. Of course, there are exceptions. A blind person cannot be a truck driver, or a deaf person a telephone operator.  Reasonable accommodation Voluntary adjustments to work or workplace that allow employees with special needs to perform their job effectively. It means that an employer can be expected to take reasonable measures to make available a suitable job to a person with a physical handicap if it does not impose undue hardships on the organization  Being drug-dependent can also be interpreted as a disability. Although the policy in question appeared to be applied in a neutral manner, the court confirmed that it clearly affected the protected group of drug- dependent persons and therefore constituted “adverse impact” discrimination. Pardoned Convicts: The Canadian Human Rights Act prohibits discrimination against a convicted person if a pardon has been issued for the offence. Pardon may be granted by a parole board after five years following release, parole, or the completion of a sentence Harassment: Occurs when a member of an organization treats an employee in a disparate manner because of that person's sex, race, religion, age, or other protective classification.  The Human Rights Act contains the following prohibition against harassment: It is a discriminatory practice, o In the provision of goods, services, facilities or accommodation customarily available to the general public, o In the provision of commercial premises or residential accommodation, or o In matters related to employment to harass an individual on a prohibited ground of discrimination.  Sexual harassment: Unsolicited or unwelcome sex- or gender-based conduct that has adverse employment consequences for the complainant. o Has become an important topic in human resource management, evidenced by the increased number of complaints lodged. A Canadian Human Rights Tribunal identified three characteristics of sexual harassment: 
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