In the realm of education, the employment environment is governed by the Education Act,1and corresponding Regulations, Ministry policies, collective agreements, board policies and procedures, and other relevant legislation, including the Occupational Health and Safety Act, 2Employment Standards Act, 2000,3 and the Human Rights Code.4
In addition to setting out the framework for the delivery of public education in the province, the Education Act also to some degree regulates the employment context for the education workers in Ontario; for example, it prescribes the duties and responsibilities of supervisory officers, principals and vice-principals, teachers, and early childhood educators.
The Occupational Health and Safety Act (OHSA) provides a comprehensive code for workplace health and safety. The objective of OHSA is to protect workers from health and safety hazards on the job and sets out duties for all workplace parties and rights for workers. For more information, please see the chapter on Occupational Health and Safety.
Recently, the Ontario Health and Safety Act (OHSA) has been amended to require employers to establish procedures regarding the prevention and resolution of workplace harassment and workplace violence. Workplace harassment and sexual harassment is strictly prohibited.
Workplace harassment is defined in the OHSA as:
- engaging in a course of vexatious comments or conduct against a worker in a workplace that is known to be unwelcome, or
- workplace sexual harassment.
A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not considered workplace harassment.
Workplace sexual harassment is defined in the OHSA as:
- engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
- making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome
Employers are responsible for employee awareness, training and establishing a procedure to investigate allegations of harassment.
Workplace violence is defined in the OHSA as:
- the exercise of physical force by a person against the worker, in the workplace, that causes or could cause physical injury to the worker
- the attempted exercise of physical force against the worker, in the workplace, that could cause physical injury to the worker, or
- a statement or behaviour that it is reasonable for the worker to interpret as a threat to exercise physical force against the worker, in the workplace, that could cause physical injury to the worker.
Employers are responsible for:
- conducting an annual risk assessment of workplace violence, and to develop measures and procedures to:
- control identified risks, provide assistance when workplace violence occurs
- to report incidents of workplace violence, and
- to investigate and deal with incidents or complaints of workplace violence.
Domestic violence occurring in the workplace is also recognized by the OHSA. Employers, including school boards are responsible for educating workers regarding domestic violence, and to take every reasonable precaution to protect workers from domestic violence that is likely to expose workers to physical injury in the workplace.
Every school board must have procedures to address workplace harassment, sexual harassment, workplace violence and domestic violence.
The Employment Standards Act (ESA) sets out the rights, responsibilities and minimum standards in Ontario workplaces. As part of school board management teams, principals and vice-principals should be familiar with the standards imposed by the ESA, despite the fact that education workers under their supervision are covered by collective agreements. Where a collective agreement provides a greater right or benefit, its provisions prevail; however, employers cannot contract out of the ESA, so it sets the minimum baseline for worker rights and, in the face of silence or in the absence of an improved benefit in the collective agreement, the ESA would apply. Principals should ask their school boards to assist them in understanding which conditions of employment are dictated by the collective agreement(s), and which are as mandated by the ESA, for each category of worker.
The Human Rights Code of Ontario provides everybody equal rights and opportunities without discrimination in the social areas of employment, accommodation, goods, services and facilities, contracts, and membership in vocational associations and trade unions.[5] Employers are required to accommodate human rights related needs, such as family status, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, disability or the receipt of public assistance, unless doing so would cause undue hardship due to cost or health and safety concerns.[6]
Principals and vice-principals must be particularly alert to the Board’s duty to accommodate disability, religion (creed) and family status in the workplace. Most school boards have central staff working in the human resources department to assist principals in fulfilling their accommodation duties when an employee asserts that they have a disability, religious practices, beliefs or observances or family need.
In the case where a worker asserts that he/she has a disability, his or her needs must be considered, assessed and accommodated. Accommodations may include the purchase of specialized equipment, modifications to the physical plant or the employee’s duties or other individualized modifications to the work environment due to the employee’s established medical needs. It is also important for principals to be alert to the possibility of a disability if sudden changes in an employee’s behaviour that negatively impact performance are noted; for example, if lateness is caused by illness, it may need to be accommodated, rather than result in discipline. Employees are required to cooperate with the Board’s efforts to provide accommodation, by providing information about their functional abilities and limitations, as well as their doctor’s recommendations for accommodation. Any employee who experiences a disability is entitled to be accommodated with dignity, so it is not only necessary to provide accommodation for established medical needs, but to do so in a manner that best enables the person to participate as fully as possible in the workplace.
Principals may also need to seek guidance from their employer school boards to assess requests for religious accommodation. Most collective agreements provide leave of absence days – some paid and some unpaid – for religious observance, and these requests may be straightforward. However, other accommodations for religious reasons (related to observance on the school premises, for example) may require consultation with the Board to ensure compliance with the Code.
The other protected ground for which principals may be required to assess the need for accommodation is “family status,” which is defined as “the status of being in a parent and child relationship”. Discrimination on the grounds of family status is defined as “practices or attitudes, which have the effect of limiting the conditions of employment of, or employment opportunities available to, employees on the basis of a characteristic relating to their family.”[7]
Where an employee requests accommodation for the purpose of meeting childcare or elder care obligations, the employer must engage in an analysis of whether the request is based on substantial need or individual preference.[8] Where the request for accommodation is based on a need, it is incumbent on the employer to accommodate the employee’s request. This may occur, for example, when a child or parent is unexpectedly ill and no other care can be arranged. However, a preference to arrive at work 30 minutes late each day because of a desire for the child to be involved in a hockey program would not require accommodation. Each case will require an analysis of the facts to determine whether the request is based on a genuine “need” or a “preference”.
When an employer is notified that an individual has family status or other Code-related needs, the employer has a duty to make meaningful inquiries about those expressed needs to determine whether or not a duty to accommodate exists[9]:
The final decision of whether to agree to an employee’s request for accommodation is not made by the principal but rather by the school board. As such, when a staff member with such a request approaches a principal, it is imperative to consult and seek advice from the school board’s human resources department and/or legal counsel, before expressing an opinion as to whether the request may be approved or denied.
[1] Education Act, R.S.O. 1990, c.E.2
[2] Occupational Health and Safety Act, R.S.O. 1990, c.O.I
[3] Employment Standards Act, S.O 2000, c.41
[4] Human Rights Code, R.S.O. 1990, c. H.19
[5] Human Rights Code, R.S.O. 1990, c. H.19
[6] Ibid, s.5
[7] Canada (Attorney General) v. Johnstone 2013 FC 113 (CanLII),para. 46.
[8] Canada (Attorney General) v. Johnstone, 2013 FC 113 (CanLII); Seeley, Denise v. Canadian National Railway, 2010 CHRT 23 (CanLII)
[9] Robdrup v. J. Werner Property Management, 2009 HRTO 1372, at para. 28.