Following the success of our first edition focusing on the Act respecting labour standards and its regulations, we are pleased to offer you a new quiz for employers, this time designed to test your knowledge and reflexes in relation to the Charter of human rights and freedoms (the “Charter”).
The questions will address, among other things, the scope of the right to privacy, freedom of expression, freedom of association and protection against discrimination.
Will you be able to spot the traps?
Once again, good luck!
Reporting to work under the influence of alcohol always constitutes serious misconduct justifying immediate dismissal.
FALSE.
The employer must first analyze the situation. If the employee suffers from alcohol dependency, this may constitute a handicap within the meaning of the Charter, giving rise to an obligation of reasonable accommodation.
This obligation may take various forms, such as granting an unpaid leave to allow the employee to undergo treatment, or concluding a reinstatement agreement setting out certain conditions to be met in order to maintain employment.
The fact that the computer used by the employee belongs to the employer allows the employer to verify its contents at any time.
FALSE.
Case law recognizes that an employee may have a certain expectation of privacy, even with respect to a tool belonging to the employer. Such a search must generally be based on reasonable grounds (in addition to being conducted by reasonable means).
An employee who has been prescribed a work stoppage of several weeks by their physician may refuse to provide medical details to the employer by invoking their right to privacy.
FALSE, but a nuance is required.
It should be recalled that the employment contract is based on the performance of work. Where the absence is prolonged, particularly over several weeks, the employer may be justified in requesting certain medical details in order to plan its operations (for example, knowing the expected duration of the absence or whether it is likely to be extended) and to prepare for a safe return to work (knowing whether there are temporary or permanent functional limitations).
The request for details must nevertheless remain reasonable and limited to what is necessary to manage the file.
Asking a candidate about the origin of their name in order to “break the ice,” before the formal start of the interview and without any malicious intent, may contravene the Charter and give rise to an award of moral damages.
TRUE.
Small talk forms part of the interview process and is covered by the protections provided in the Charter. Pursuant to section 18.1, an employer may not ask a candidate questions relating to a ground of discrimination, unless such information is directly relevant to the position.
Thus, even in the absence of malicious intent, such a question may result in employer liability and the awarding of moral damages to the candidate.
The seriousness of a criminal offence committed by a candidate (e.g., murder) is not sufficient, in and of itself, to justify a refusal to hire.
TRUE.
The relevant criterion is not the seriousness of the offence, but rather the link between the offence and the position sought. Failing a demonstration by the employer that the offence is incompatible with the duties to be performed, the refusal to hire may be found to be discriminatory.
Unions may exercise pressure tactics even outside periods of collective agreement negotiations (period of industrial peace) by invoking freedom of expression.
TRUE, but a nuance is required.
The scope of pressure tactics that may be exercised is more limited in this context. Accordingly, certain pressure tactics that might be tolerated during negotiations become prohibited during the term of the collective agreement.
The prohibitions recognized by the case law include, in particular:
- The exercise of pressure tactics provided for in sections 107 and 108 of the Labour Code, namely strikes, slowdowns or picketing;
- The exercise of pressure tactics that clearly contravene the collective agreement, that is, any action that violates the negotiated terms or prevents their implementation (see, by way of example, Corporation d’Urgences-Santé de la région de Montréal Métropolitain v. Syndicat du préhospitalier-CSN, 2022 QCCA 97).
Moreover, pressure tactics that damage the employer’s property or harm its reputation may also be found to be unlawful depending on the context.
The employer has no obligation to accept a gradual return to work authorized by the physician and may require that a full return to work be prescribed before allowing the employee to return to work.
FALSE, but a nuance is required.
Where the incapacity constitutes a handicap within the meaning of the Charter, the employer must consider reasonable accommodation measures, which include a gradual return to work.
However, the employer may refuse such a measure if it would result in undue hardship for its operations or with respect to other employees.
As a reminder, undue hardship is assessed in light of, among other things, the actual costs, the impact on the operation of the business, health and safety risks, and the impact on the rights of other employees; it cannot be based on mere inconvenience, apprehension or management preferences.
Final question – let’s see if you retained the last quiz: An employer may not refuse a leave request from an employee who wishes to be absent to participate in a religious holiday, due to its obligation of reasonable accommodation under the Charter.
FALSE, but a nuance is required.
It is true that the employer has an obligation of accommodation in religious matters. However, this obligation is not absolute. As indicated above, if the accommodation results in undue hardship, the employer may refuse the request.
For example, undue hardship could exist if several employees all request leave for the same religious holiday, such that the employer would be unable to maintain its operations. In such a scenario, the employer would have to assess the extent to which it is possible to accommodate certain requests and, where applicable, proceed on the basis of objective criteria.
This brings our True or False? Charter of human rights and freedoms Edition quiz to an end.
As always, we hope that these reminders will be useful in managing your employer obligations.
See you soon… who knows, perhaps for a future edition!
