Top 3 New Brunswick HR Law Stories
1. New Workplace Violence Requirements
After lagging behind most other jurisdictions, New Brunswick adopted strict new workplace violence rules to its OHS Regulations. Starting April 1, 2019, all employers must perform a workplace violence hazard assessment, in consultation with the workplace joint health and safety committee, and adopt a “code of practice” addressing identified risks (including domestic violence at the worksite), including a listing of:
- All locations identified as posing potential violence hazards along with a description of the specific hazards in each area;
- Which workers are at risk;
- Person responsible for implementing the code of practice;
- Workers’ obligation to report incidents of violence immediately;
- Measures in place to manage violence risks;
- Procedures for investigating incidents of reported violence, notifying affected parties of results and taking corrective actions; and
- Workplace violence training to be provided.
2. New Workplace Harassment Requirements
April 1, 2019, was also the effective date of new OHS obligations of employers to adopt a code of practice for workplace harassment. Unlike the violence rules, the harassment provisions don’t require a hazard assessment. In other words, a code of practice for harassment is automatically required at all workplaces without being contingent on the results of an assessment.
3. Workers’ Comp Reform
In the fall of 2018, the New Brunswick Auditor General issued a scathing report criticizing the government for weakening the independence of WorkSafeNB. In response, the province swiftly adopted a workers’ comp reform bill (Bill 2) which took effect in December designed to increase the agency’s independence and policy making powers. Bill 2 also included a number of new financial measures designed to eliminate the deficit in the Accident Fund that’s been driving up premiums at an alarming rate. One big change on the benefits side is the elimination of the unpaid 3-day waiting period for injured workers.
What to Expect for the Remainder of 2019
Last July, a New Brunswick government Task Force issued recommendations for reforming the province’s OHS and workers’ comp system. And on May 8, the Assembly has tabled Bill 27 incorporating many of its recommendations:
- Require WorkSafeNB to send copies of OHS Act and Regs to employers and publish OHS convictions the way many other provinces do
- Allow for online delivery of required training
- Clarify that CPP Disability benefits count in WorkSafeNB’s determination of payable workers’ comp benefits
- Administrative changes to enhance board independence
- Mandatory review of workers’ comp every 5 years.
Another key law on the docket is Bill 4, tabled at the end of last year, to extend current gender-based pay equity laws for the public sector to private companies starting in April 1, 2020. Although current ESA laws ban differences in pay between men and women for substantially equivalent work at the same establishment, pay equity laws require employers to take proactive measures, in consultation with employees, to identify and eliminate disparities in pay categories.
Top 3 New HR Cases in New Brunswick
Here are summaries of what we consider to be the 3 most important employment cases decided in New Brunswick over the past 6 months.
1. Employee Waited Too Long to Ask Company to Accommodate His Disability
“This is an unfortunate story of a person who refused to acknowledge a problem and then did not accept help available to him from his employer.”
So began the arbitrator in a November ruling upholding the firing of a steel worker for “excessive” absenteeism. Rather than terminate him, the company placed him in its attendance management program and offered counseling on 5 different occasions, each time reminding him of his right to accommodations for any disabilities he may have. The offers were routinely ignored. And when the worker violated his last chance agreement, the company pulled the plug. Only then did the worker reveal he had a disability—depression. Had he been more forthright about his disability from the beginning, the outcome may have been different, said the arbitrator. But having repeatedly hidden this crucial bit of information throughout the disciplinary process, it was too late to raise it now [United Steelworkers, Local 7085 v Glencore Canada Corporation, 2018 CanLII 118727 (NB LA), Nov. 8, 2018].
2. New Brunswick High Court Nixes Employees’ Pension Negligence Lawsuit against Union
A pension plan provided that in the event of a layoff employees on recall continue to accrue benefits. Citing that provision, employees working at a mill that shut down claimed they were entitled to full pension benefits and sued the union for negligently failing to ensure the local unions pursued their claims. After nearly 7 years of litigation, the case reached the New Brunswick Court of Appeal. Ruling: Case dismissed. The mill closure wasn’t a “layoff” but a permanent closure that ended the employees’ employment and with it, their accrual rights. As a result, they didn’t qualify for a full pension [Goyetche et al. v. International Union of Operating Engineers et al., 2019 NBCA 16 (CanLII), Feb. 14, 2019].
3. Employer Gave Termination Notice but Employee Never Took It
A supermarket manager summons a meat cutter to the back office and tells him he’s fired. He hands him a copy of an official termination letter and begins to read it but the meat cutter storms out before the manager finishes and doesn’t take his copy of the letter with him. He later sues for wrongful dismissal claiming the store violated its duty to give him written termination notice under Sec. 30(2) of the New Brunswick ESA. No dice, says the arbitrator. The store did provide the required notice by preparing a detailed letter setting out the causes of termination and personally delivering it. The meat cutter would have also gotten the notice verbally had he not walked out while the manager was reading him the letter [Marr v Sobeys Capital Incorporated Grand Bay-Westfield, New Brunswick, 2019 CanLII 17987 (NB LEB), Feb. 5, 2019].