About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

5 Hum. Rts. Dig. 1 (2004)

handle is hein.journals/hurtsdg5 and id is 1 raw text is: VOLUME 5 NUMBER 1 Human Rights Digest January 2004 Decisions Noted Seniority System Discriminatory ..... 1 Tribunal Clarifies and Amends C om plaint ...................3 Government Must Pay Cost of Assessment for Deaf Driver ...... 4 Drug Testing Policy Violates Act ..... 5 Dismissal of Race Complaint U pheld .. ... ... .... ... ... Five Women Harassed by Em ployer ................ .6 .6 Taxing Grant Not Discriminatory..... 7 Federal Act Applies to Nisga'a Lisims G overnm ent.................. 8 Tribunal Proceeds Despite Death of Com plainant ............... ..8 Tribunal Refuses to Dismiss C om plaint ...................9 Tribunal Awards Maximum in Sexual Harassment Case .............. 9 Inside Page ...............2 Briefly Noted ................ 10 Ordering.....................12 DISABILITY - discriminatory treatment in employment on the basis of cerebral palsy - harassment of disabled employee - discriminatory treatment of the dis- abled - DISCRIMINATION - adverse effect discrimination - Meiorin test - HUMAN RIGHTS - nature and purpose of human rights legislation - BURDEN OF PROOF - elements of a prima facie case BONA FIDE OCCUPATIONAL QUALI- FICATION - absence of physical co- ordination for truck driver - individual employee evaluation required - EM- PLOYMENT EVALUATION AND TEST- ING - individual assessment as alterna- tive to setting discriminatory standard - EMPLOYMENT - constructive dismissal - calculation and loss of seniority REASONABLE ACCOMMODATION - duty to accommodate short of undue hard- ship - definition of undue hardship - union's duty to accommodate - com- plainant's duty to accommodate - Meiorin test for reasonable accommo- dation TRADE UNIONS - collective agreement incorporates discriminatory provision - seniority provisions in collective agree- ment- union as respondent- LIABILITY -liability of union- DAMAGES - determining quantum by establishing duration of award and by us- ing reasonable foreseeability test - injury to dignity and self-respect - compensa- tion for lost benefits, lost wages and addi- tional taxes - calculation of interest - duty to mitigate REMEDIES - order to cease discrimina- tory practice - employment reinstate- ment - employment seniority INTERPRETATION OF STATUTES - re- peal and re-enactment - retrospective ef- fect - presumption against retroactivity The Saskatchewan Human Rights Tribunal ruled that the City of Regina and the Cana- dian Union of Public Employees, Local 21 (C.U.P.E.) discriminated against Gary Wayne Kivela by failing to accommodate his disability. Mr. Kivela was born with cerebral palsy in 1950. His cerebral palsy manifests itself in his lack of control over his muscles and his slow and slurred speech, which is some- times difficult to understand. The City of Re- gina employed Mr. Kivela as a casual truck driver for sixteen years from 1982 to 1998. The City and C.U.P.E. accommodated Mr. Kivela when he was first hired by placing him directly into a truck driver's job, waiv- ing the requirement to work as a labourer, which was the usual entry level position, because he was unable to perform a labourer's duties. The City also made mod- ifications to one of its tandem trucks, and excused Kivela from performing vehicle in- spections and cleaning out the truck box. His pay was reduced by 4 percent because he unable to perform these tasks. Mr. Kivela worked on a casual basis for the Roadways Division, starting in the spring and being laid off in the fall each year. He hauled gravel, slag, street sweep- ings, asphalt and snow. He had an unblem- ished driving record throughout his em- ployment, and got along well with his supervisors and co-workers. Kivela's main goal was to become a per- manent employee of the City. However, this status eluded him because of the way the seniority system operated. Since recall and layoff was on the basis of seniority, employees who gained more seniority by doing work that Kivela could not do had continued on page 3

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most