Equality in the workplace

The Report: November / December 1999 vol.20 num.4


My employer plays favourites. She also discriminates between workers. Is she allowed to do this?

Equality before the law. Thats the idea of something called "the rule of law", which means that a peasant is supposed to be treated the same as the lord. In modern times, the idea is that a homeless person and Conrad Black will be given equal justice.

Laughing yet?

Well, thats the theory. And sometimes collective bargaining is described as bringing the rule of law into the workplace. In other words, having a collective agreement means that an employer is no longer supposed to be able to play favourites or discriminate between workers.

Lets take a look at what this means when it comes to discipline. For example, John Camel and Mary Nicotinefit are caught smoking in the stairwell of a non-smoking workplace. John gets a written warning, but Mary gets a three-day suspension. The union grieves Marys suspension and takes it to arbitration.

At first glance, an arbitrator is likely to frown on this. The case law says usually workers should be given the same discipline for the same kinds of offences. If you treat two workers differently for the same conduct, arbitrators say, thats a kind of discrimination, even if race or gender
isnt involved.

Other arbitrators have put it this way: if one worker has only received a written warning, that shows that even the employer thinks the misconduct isnt bad enough to merit a suspension.

Of course, in labour law, theres always a catch. The employer is allowed to treat workers differently when it comes to discipline if there is a reason. For example, say this is the first time John was caught smoking, but Mary has already had two written warnings for puffing.

In this case, an arbitrator might say that the employer was justified in treating Mary more harshly. This would be even more likely if John had been employed a long time and Mary was relatively new. Or if John was on a break at the time, but Mary was supposed to be at her work station.

The reason has to be legitimate. Treating two workers differently because the employer likes one better than the other isnt acceptable.

As a result, this kind of discrimination argument can still be a powerful tool in the right case.
Then there are the people who think they should be above the law ... like Canadians who have delusions of grandeur and want to be English lords.

Just a hypothetical example, of course.

Judith McCormack, a former chair of the Ontario Labour Relations Board, is now a lawyer with the firm of Sack Goldblatt Mitchell in Toronto.