Difference between revisions of "Preliminary Matters for Employment Law (9:IV)"

This section will help you determine whether the employee is covered by federal or provincial jurisdiction, and therefore which statutes apply.  

*Shipping and navigation, including the operation of ships and transportation by ship anywhere in Canada;

*Interprovincial or international transportation (for example, truck, rail, ferry, or shipping routes that cross a provincial or international border);

*Telecommunications companies, such as cell phone, cable, or internet providers;

*Airports and air transportation, including any airline companies;

*Radio broadcasting stations;

*Banks (but not credit unions);

*Businesses located on First Nations reserves; and

To determine jurisdiction, look to the type of work done, as well as the employer’s area of business.  It is important to note that a single employer could have both federally and provincially regulated employees.  Although an employer may be subject to federal jurisdiction, it does not mean all of that employer’s employees will be governed by federal law.  In some cases, additional research must be done to determine the employee’s jurisdiction.  For additional details to assist in determining jurisdiction if a difficult case arises, see ''Actton Transport Ltd v British Columbia (Director of Employment Standards)'', 2008 BCSC 1495 paras. 23 - 32 https://canlii.ca/t/21dvl.

Federally regulated employees are covered by the ''Canada Labour Code'' [CLC].  A significant difference between the CLC and the ESA is that the CLC confers a special right: If the employee is non-managerial, worked for at least one year, and was unjustly dismissed, their job can be reinstated (CLC, ss 240-246).  This right exists alongside several other discretionary remedies for unjust dismissal under the CLC.  A complaint must be filed within 90 days (CLC, s 240(2)).  

Unionized employees may have common law or contractual entitlements, but generally these entitlements must be acted upon by the union that is party to the collective agreement. See [[Checklist for Employment Law (9:II)#A. Preliminary Matters | Section IV.C: Unionized vs. Non-Unionized Employees]].

Determine whether the employee belongs to a union. If the employee does not belong to a union, continue to the next step  in the checklist: [[Checklist for Employment Law (9:II)#A. Preliminary Matters | Section IV.D: Determine if the Worker is an Employee or Independent Contractor]].  

If an employee is a union member and has a  complaint regarding the employer, they must first advise the union’s representative. The employee can contact either the shop steward at the workplace, or an external union representative, to see what the union can and will do. The ''ESA'' provides minimum standards that generally must be met, but collective agreements will contain other critical guidelines that the employer must follow. Usually, union contracts contain different or more onerous terms than the ''ESA'' provisions, and union members in their collective agreements can contract out of ''ESA'' limitations (''ESA'', s 3) regarding such matters as hours of work, overtime, statutory holidays, vacations, vacation pay, seniority retention, recall, and termination of employment or layoff. Whole sections of the ''ESA'' might not apply under a collective bargaining agreement if they have been addressed by the agreement. The collective agreement does not necessarily have to meet minimum guidelines for certain sections of the ''ESA''. For more information consult the Employment Standards Keyword Index: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/keyword-index#C

When considering an employment-related claim, it will be important to determine if the claimant is or was an employee, dependent contractor, or an independent contractor.   

In ''McCormick v. Fasken Martineau DuMoulin LLP'', 2014 SCC 39 https://canlii.ca/t/g6xlp, the Supreme Court of Canada affirmed that the key to a determining whether an individual is an employee or an independent contractor” is the degree of control and dependency.  The Court in ''TCF Ventures Corp v The Cambie Malone’s Corporation'', 2016 BCSC 1521 https://canlii.ca/t/gt1j2, noted that the ‘dichotomy’ between independent contractors and true employees is best practically assessed on a spectrum that exists between the two extremes; persons (both natural and unnatural) can find themselves on that spectrum and can bring an action for breach of an entitlement to notice of termination of their contracts, and the true nature of the relationship should be assessed on a case-by-case basis.

An independent contractor is generally not significantly controlled by the employer: the independent contractor might set their own hours, determine how to perform the work, make their own payments for CPP, EI, and Worker’s Compensation coverage, pay for their own business expenses and equipment, determine whether to hire their own employees or subcontractors to assist in performing the work, and invoice the employer for work performed.  Independent contractors often contract with more than one business, and as a result are less dependent on a single business to earn their living.  

A dependent contractor is an intermediate category, falling somewhere in the middle of the scale.  A dependent contractor might set their own hours and hire their own employees, but derive most of their income from a contract with one business, and thus be more dependent on that business to earn their living than an independent contractor would be.

All of the above factors will be considered, but do not determine the issue.   

In some cases, a worker may fall into the category of dependent contractor. Those who fall under this intermediate category are entitled to reasonable notice. Some of the factors that are considered in determining whether a worker falls under this category are (''Marbry Distributors Limited v Avrecan International Inc'', 1999 BCCA 172, https://canlii.ca/t/546j):  

The BCSC has adopted Alberta’s ruling that dependent contractors are also entitled to reasonable notice (''Pasche v. MDE Enterprises Ltd.'', 2018 BCSC 701, https://canlii.ca/t/hrs4z). It appears there may also be a judicial shift away from the notion that dependant contractors could be entitled to a lesser degree of reasonable notice than a regular employee.  In Liebreich v. Farmers of North America, 2019 BCSC 1074, https://canlii.ca/t/j196n, the BCSC found there was no “principled basis to automatically give less notice to a dependent contractor than an employee”.

The distinction between employees and independent contractors under the ''Employment Standards Act'' is quite similar to that under the common law. The following test for distinguishing between employees and contractors should be used when pursuing a claim at the Employment Standards Branch.