Argument: Employment and Disability Law Violation

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B v. Waitemata District Health Board [New Zealand] [June 14, 2017]

A patient at a mental health facility sued the Waitemata District Health Board claiming that the Board’s smoke-free policy violated the Smoke-free Environments Act because it did not provide a smoking room for patients. The patient also claimed that the smoke-free policy violated his right to be treated with respect for dignity. In two earlier decisions, the High Court and the Court of Appeals found the smoke-free policy did not violate either the Smoke-free Environments Act or the Bill of Rights. The patient appealed the decision to the Supreme Court.

In this decision, the Supreme Court upheld the smoke-free policy. The Court found that the smoke-free policy did not violate the Smoke-free Environments Act because the law states that a smoking room “may” be provided. As a result, the Board is not required to provide a smoking room for patients. Further, the Supreme Court found the patient’s rights were not violated because smokers were given nicotine replacement therapy, which was a humane and meaningful treatment for nicotine withdrawal symptoms, consistent with the Bill of Rights. 

Boruski v. Crescent Housing Authority [Canada] [May 30, 2014]

Residents of subsidized housing for seniors and people with disabilities sued the nonprofit Housing Society that managed the housing for discrimination based on their physical disabilities. The residents claimed that the Housing Society failed to reasonably accommodate their disabilities by exposing them to secondhand smoke, which exacerbated their disabilities. The court dismissed the complaint, finding that that the Housing Society took reasonable steps to accommodate the residents and limit their exposure to secondhand smoke, including offering different units for relocation, adopting a smoking policy, changing the lease agreement for new tenants to prohibit smoking, maintaining and inspecting the ventilation system, and moving a “smoking pit” farther away from the building. The court said that the steps taking by the Housing Society were reasonable and that residents sought a “perfect and preferred” accommodation rather than a reasonable accommodation.

MacKay v. Metropolitan Toronto Condominium Corp. [Canada] [May 12, 2014]

The owners of a Toronto condominium unit complained to condominium management about cigar smoke drifting into their condo from an upstairs unit. The condominium corporation eventually hired a variety of engineers and consultants to correct the problem and the neighbor agreed to stop smoking. However, the condominium owners’ insurance company found the unit “uninhabitable” and paid for the owners to move to a hotel, where they had lived for 10 months at the time of the court decision. The court found that problem of drifting smoke had finally been resolved after numerous repairs and therefore the condominium corporation was not in violation of its obligations to repair or maintain the building’s common elements under Ontario law. The court ordered that costs be paid to the condominium owners.

Tamam v. Ghanem [Israel] [July 31, 2013]

A pregnant secretary quit her position at an attorney's office because the attorney refused to enforce a non-smoking policy in the office, in violation of a smoke free law. The court treated her resignation as if she was forced to leave and ordered the employer to pay compensation for violations of both employment laws and the smoke free law.

B v. Waitemata District Health Board [New Zealand] [July 08, 2013]

Two psychiatric patients and a nurse brought these proceedings against the Waitemata District Health Board (WDHB) challenging its Smoke-free Environment Policy which prohibited smoking in hospitals and surrounding grounds. The two patients were held in hospital under the Mental Health (Compulsory Assessment and Treatment) Act and were therefore unable to leave the hospital to smoke. The nurse was unable to leave the ward during her shift and was therefore unable to smoke during working hours. The applicants challenged the policy on traditional grounds of judicial review: illegality (including a failure to take into account relevant considerations); irrationality; and a breach of natural justice. They also alleged that the policy breached a number of rights under the Human Rights Act 1993 and New Zealand Bill of Rights Act 1990, including: unlawful discrimination against detained psychiatric patients compared to non-detained psychiatric patients; unlawful discrimination against smokers compared to non-smokers; unlawful discrimination on the ground of disability (because addiction to nicotine is a "disability"); the right not to be subjected to torture or cruel treatment; and the right to respect private life.

The Court rejected all of the applicants' claims and upheld the validity of the Policy. The Court found that, given that smoking is a health hazard and that District Health Boards have a duty pursuant to their governing legislation to prevent or restrict health hazards, it was entirely within the powers vested in the WDHB to have policies to stop smoking. The Court rejected the applicants' claim that the Policy should provide for smoking places because the WDHB was entitled to take into account that such areas would impose additional costs, as well as the risks to passers-by posed by passive smoking. The potential harm to employees from passive smoking was a further justification for the policy given that the Health and Safety in Employment Act 1992 requires employers to provide and maintain a safe working environment for employees.

The Court distinguished this case from the situation in the prison cases (see: Taylor v Attorney General & Ors (3 July 2013)) on the basis that the relevant section of the Smoke-free Environments Act 1990 relating to prisons assumed the existence of smoking within them; whereas, the section relating to hospitals made no such assumption.

The Court further found that there was no discrimination between detained psychiatric patients and non-detained psychiatric patients because all patients were treated alike. Further, there was no discrimination between non-smokers and smokers because nicotine addiction is not an "illness" or an "impairment" or a "disability" - while the applicants suffered some discomfort and distress, nicotine addiction is curable. Likewise, the Policy did not constitute "torture" because the withdrawal symptoms resulting from stopping smoking do not cross the relevant threshold of suffering, and the provision of NRTs to patients was humane and meaningful treatment for symptoms. The Policy also did not breach the right to respect private life contrary to the International Covenant on Civil and Political Rights because it was neither arbitrary nor unlawful, and in a hospital environment those who are in that environment have to accept limitations on their privacy.

Lastly, the Court found that, even if there had been a breach of the applicants' rights (which there had not), then the Policy was nonetheless justified because its purpose (to reduce smoking) was important in light of the damage that smoking does to persons and the community; the Policy was rationally connected to that purpose; and the Policy was proportionate and went no further than necessary to achieve its aims.

Patrick A. v. D├ępartement du Nord [France] [December 30, 2011]

Patrick A., who suffers from lung cancer, appealed a lower court decision finding his illness was not work-related, and the Council of State affirmed.  The Council of State, however, held that, even if the cancer could not be linked to his workplace, Patrick A. may be due damages because his employer failed to enforce the smoking ban and to protect its employees.  Patrick A. thus was exposed to passive smoking in the workplace.  The Council of State remanded the matter in order for this question to be analyzed and awarded Patrick A. 3,000 Euros in costs. 

Laulhere v. National School for Architecture of Toulouse [France] [March 17, 2011]

In this case, the Court evaluated plaintiff's claim that passive smoking during her thirty years as a teacher at the National School for Architecture caused her lung cancer. Weighing the expert testimony regarding plaintiff's injury, the duration of her tenure at the school, the timing of her injury, and a court's prior decision that the school had not complied with smoke free laws, the Court awarded damages to plaintiff and held that the school was liable for causing her illness.

Fiks v. Kiryat Shmona [Israel] [January 11, 2011]

Fiks, an employee of the Kiryat Shmona municipality filed a tort suit against his employer for violation of a smoke free law prohibiting smoking in the work place. The court found the municipality liable because its offices had ashtrays that encouraged employees to smoke and lacked sufficient signs prohibiting smoking.

Saenz Sibaja v. Municipality of Oreamuno [Costa Rica] [September 26, 2008]

The plaintiff filed an appeal for legal protection against his employer, the Municipality of Oreamuno, claiming that the smoking area near the dining area of the government building where he worked constituted a violation of the domestic tobacco control laws, including the federal law implementing the FCTC.  Additionally, the plaintiff claimed the smoking area violated his right to health and his right to a healthy and safe work environment. The Regulatory Law on Smoking (Ley de Regulación del Fumado) prohibits smoking in public offices, except in specific regulated areas that must be kept as far away as possible from dining areas where other workers could be affected. The Court ordered the Municipality of Oreamuno to relocate the smoking area away from shared spaces.  The Court held that just requiring a smoker to abstain from smoking while other workers are around is an insufficient measure as it creates a harmful working environment. The Court ordered the Municipality to pay costs and damages to anyone affected by the smoking area.

Dauga v. Le Parc aux Cerfs [France] [February 19, 2008]

An employee who had asthma that was aggravated by smoke in the restaurant where she once worked brought an action against the employer for failure to comply with the obligation to protect employees' safety and for wrongful dismissal.  The court ruled in favor of the employee, holding that the employer did not adequately comply with smoke-free laws and therefore neglected its employee safety obligations.