Difference between revisions of "Employment Law Issues (9:V)"

{{LSLAP Manual TOC|expanded = employment}}

Generally, employment issues arise as a breach of the ''Human Rights Code'', the ''Employment Standards Act'', or an employment contract. Take note of which of these legal protections applies for the issue that you identify, and then see [[Remedies in Employment Law (9:VI) | Section VI: Remedies]] to find out how to proceed.  

An employer may not induce a person to become an employee or to make themselves available for work by deceptive or false representations or advertising respecting the availability of a position, the nature of the work to be done, the wages to be paid for the work, or the conditions of employment.  If this occurs, the employee could file a complaint at the Employment Standards Branch per section 8 of the ESA.   

=== 2. Employment Agencies ===

=== 3. Talent Agencies ===

=== 4. Child Employment ===

Employing a child is an offence for which both the employee and the employer are liable.  The ESA does not apply to certain types of employment such as babysitters and some students (''ES Regulation'', s 32).   

If an employer is accused of illegally using child employment they will carry the onus in proving that it was either justified, or that the child was of legal age.

==== a) Minimum Wage and the Entry Level Wage ====

For liquor servers (and normally other positions that receive tips) the employees must be paid at least minimum wage in addition to any tips or gratuities they receive, since tips and gratuities are not wages for Employment Standards Act purposes.  However, note that tips may be considered in the assessment of an employee’s entitlement to common law severance – refer to the common law severance paragraphs in this chapter.

'''Timing'''

'''No Deductions for Business Costs'''

'''Wage Statements'''

Only certain deductions can be made from an employee’s wages (''ESA'', ss 21 and 22). There must be a written assignment of wages.  

Section 22(4) of the ''ESA'' allows the employer to deduct money from the employee’s paycheque to satisfy the employee’s credit obligation (for example, if the employer has loaned the employee money, or if the employee has agreed to pay the employer a monthly sum for personal use of the employer’s car). To do this, the employee must make a written assignment of wages to the employer.   

An employer cannot require employees to pay any business costs – as either a deduction from their paycheque or out of their pockets or gratuities. Examples of business costs include loss due to theft, damage, breakage, or poor quality of work, damage to employer’s property, or failure to pay by a customer (e.g. dine-and-dash). If an employer deducts business costs from an employee’s wages they can be required to  reimburse the employee for the amount, and can be fined by the Employment Standards Branch for failing to follow the ''ESA''.

'''Daily Overtime:''' Unless they have an averaging agreement, an employee must be paid overtime wages if they work more than eight  hours in any one day. Employees are to be paid one and a half times their regular wage rate for time worked beyond eight but less than 12 hours in one day, and two times their regular wage rate for any time worked beyond those 12 hours in one day (''ESA'', s 40(1)).  

==== c) Overtime Banks ====

Many of the problems encountered by the Employment Standards Branch involve conflicts between the records of employers and the claims of employees regarding regular and overtime hours worked. '''Employees should always keep consistent records of the hours they work.'''  

Part 7 of the ''ES Regulation'' excludes certain groups of employees from the following rules under Part 4 of the ESA. They may be excluded  from Part 4 of the Act as a whole, or excluded from certain sections only. Please check the Regulation for more details.   

Be aware that even though an employee is considered a manager (or falls within another overtime exemption), the employee is still entitled to be paid for all hours worked.     

If the manager does not have a contract, collect any evidence you can regarding an agreement on the manager’s hours of work, and evidence on historical hours worked.     

==== e) Minimum Daily Hours ====

==== f) Shift Work ====

==== g) Variance ====

Under s 37 of the ESA, an employee and employer can agree to average an employee’s hours of work over a period of up to four weeks for the purposes of determining overtime.  These agreements must be in writing and be signed by both parties before the start date of the agreement and must specify the number of weeks over which the agreement applies.  It must also specify the work schedule of each day covered by the agreement and specify the number of times if any that the agreement can be repeated.  The employee must receive a copy of this agreement before the agreement begins.  The work schedule in such an agreement must still follow conditions outlined from ss 37(3) – (9).  The employer and employee may agree at the employee’s written request to adjust the work schedule (s 37(10)).  The Employment Standards Branch will not get involved unless a complaint is made.

Employment contracts must provide at least the minimums vacation and vacation pay entitlements as set out in the ''ESA'' (ss 57-60). Employees can be entitled to vacation and vacation pay entitlements above the ''ESA'' minimums if agreed to in an employment contract.   

==== a) Annual Vacations ====

Annual vacation is without pay, but the employee should receive vacation pay either in advance of his vacation, or on each paycheck. See  Vacation Pay explanation below.  

https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-7-section-58

Employees who work on a statutory holiday receive one and one-half times their regular rate of pay for the first 12 hours worked.  Any further time worked should be paid at twice the regular amount of pay.  Where a statutory holiday falls on a non-working day, the employer must give the employee a regular working day off with pay.  An employee who is given a day off on a statutory holiday or a day off instead of one must be paid statutory holiday pay equal to at least an average day’s pay.  

*'''Days worked''' are the number of days the employee worked or earned wages within the 30 calendar day period.  

Part 6 of the ''ESA'' regulates leaves of absence. Again, Part 7 of the ''ES Regulation'' should be consulted to determine if an employee is covered by this part of the Act. Those employees who are not protected by the ''ESA'' may have protection under the governing statutes of their specific profession.  

An employer may not terminate an employee for taking a leave they are entitled to take under the ''ESA''. In the case of an alleged contravention of Part 6 by the employer, the burden is on the employer to prove that the reason for the termination was not a pregnancy, jury duty or other leave allowed by the Act (s 126(4)(c)). When there is an infraction of this section of the Act, the Director of Employment Standards can order that the employee be reinstated (s 79). However, this almost never occurs (see [[Remedies in Employment Law (9:VI) | Section VI: Remedies]] for more details). Section 79(2) is a very powerful “make whole remedy” which allows the Director to reinstate the employee and pay them any wages lost due to the contravention of the Act. Termination during a leave may also give rise to a cause of action before the Human Rights Tribunal.  

'''NOTE:''' The protections offered under ss 54 and 56 of the ''ESA'' do not apply if the leave taken by the employee is greater than that allowed by the Act (s 54).  

An employer has a duty to allow the employee the leave they request under the provisions of the ESA.  Furthermore, upon the employee’s return from leave, the employer has a duty to place the employee in the same or comparable position to the position they held before the leave.  The employer must not terminate employment because of leave taken, or change a condition of employment without the employee’s written consent.

If an employee has a dispute with their employer regarding pregnancy or parental leave, they may also be able to file a complaint for discrimination based on sex or family status with the Human Rights Tribunal.  Additionally, where an employer offers compensation benefits for health conditions and then excludes pregnancy as a ground for claiming compensation, the employer may have acted in a discriminatory fashion.  

==== d) Compassionate Care Leave ====

==== e) Jury Duty ====

==== h) Leave Respecting Domestic or Sexual Violence ====

==== i) Critical Illness or Injury Leave ====

==== j) Illness or Injury Leave ====

==== k) Covid-19 Related Leave ====

An employee is entitled to unpaid leave for Covid-19 related reasons as defined in section 52.12 of the ESA, for as long as the circumstances giving rise to the leave apply to the employee (see ESA s. 52.12). An employee is entitled to Covid-19 related paid leave in accordance with section 52.121 of the ESA and leave for Covid-19 vaccination in accordance with section 52.13 of the ESA. See section 11 for more details on Covid-19 related ESA issues.

==== a) Independent Contractors ====

The ''ESA'' has special provisions for farm and domestic labourers. See the Act and Regulation for more details. A domestic worker must have a written employment contract and be registered with the Employment Standards Branch (''ESA'', ss 14 and 15). The Employment Standards Branch is  working in cooperation with federal immigration officials to curb abuses of the program. The federal agency will ensure that the employer is registered with the Branch before entry of a new immigrant is authorized. In 2002, under the banner of creating a more flexible workforce, the ''ESA'' was changed to exclude domestic and farm workers from certain overtime laws. Essentially domestic and farm workers can have their  hours averaged without the need for consent (see above at [[{{PAGENAME}}#h) Averaging Agreements | Section V.A.6(h): Averaging Agreements]]).

'''NOTE:''' The federal government via Citizenship and Immigration Canada administers the Live-in Caregiver Program.  The Program came into effect on April 27, 1992.  The purpose of the program is to prevent abuse and exploitation of domestic workers.  The program was to clarify the employer-employee relationship by providing information on the terms and conditions of employment and on the rights of workers under Canadian law.  The program also sets out educational requirements for live-in caregivers which are designed to aid a worker’s ability to get a job after gaining permanent residency status and leaving domestic employment.  While the first-year assessment interview and in-Canada skills upgrading have been eliminated, the remaining requirements are very high, thereby forming a serious barrier for these workers to enter Canada.  The program requires the equivalent of a Grade 12 education (equivalent to second-year university in many countries), six months of formal training in the caregiving field or one year of full-time paid work experience, and good knowledge of English or French.  Further information is available  from the West Coast Domestic Workers’ Association (see [[Governing_Legislation_and_Resources_for_Employment_Law_(9:II)#C. Referrals | Section II.C: Referrals]]).

The ''ES Regulation'' makes special provision for workers in the high technology sector. Most importantly, these professionals are exempt from the ''ESA'' provisions relating to hours of work, overtime, and Statutory Holidays (Parts 4 and 5). It is not easy, however, for an employee to qualify as a high technology professional – the criteria are very specific. See s 37.8 of the ''ES Regulation'' for a more detailed description, and especially if the employee deals with computers, information service, and scientific or technological endeavours.  

==== e) Silviculture (Reforestation) Workers ====

== B. Covid-19 ==

=== 1. Common Law and Covid-19 ===

==== a) Mitigation ====

==== b) Timing for Assessing Reasonable Notice ====

==== c) New Position Offered on Return from Layoff and Constructive Dismissal ====

==== d) Canadian Emergency Response Benefit (“CERB”) and Damages ====

== C. The ESA and Covid-19 ==

https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96113_01#section52.121

=== 2. Covid-19 and Section 65 (1) (d) Impossible to Perform ===

Under the Employment Standards Act, employers are only permitted to place employees on temporary layoff if there is a right to do so in the employment contract, layoffs are customary in the industry, or the employee consents.  In normal circumstances, temporary layoffs can be for a maximum of 13 weeks, at which point if the employee is not recalled the layoff becomes a termination of employment, and triggers a severance obligation.  

==== b) Unforeseeable Event Considerations ====

However, the threshold for impossible to perform is very high (see BC EST # D105/08), and Employment Standards interpretation guidelines, while potentially indicative of results, are not binding precedent in an Employment Standards claim.   

== D. Breach of employment contract claim ==

=== 1. Severance Claims ===

=== 2. Constructive Dismissal Claims ===

=== 3. Bonus Clause Claims ===

Claims for breach of contract  are addressed through civil court claims, either at Provincial Court or Supreme Court depending on the potential value of the case.   

There is conflicting case law on whether an employer would have just cause to dismiss an employee who sues the employer while still employed. As a result, prior to suing an employer while the claimant employee is still working or on a period of notice, claimants should carefully research the law and compare the current law to the employee’s particular circumstances.   

== E. Termination of Employment ==

By default, there is an implied term in indefinite hire employment contracts (either oral or written contracts) that employers will provide employees with a reasonable notice of termination if they dismiss the employee without cause.   

If the employer fails to give the employee reasonable notice or pay in lieu, this would constitute a breach of the employment contract by the employer, and the employee could sue the employer for a severance in Small Claims Court, the Civil Resolution Tribunal, or BC Supreme Court.  This is commonly called a wrongful dismissal claim.

☑ If the worker was an employee, determine what length of notice the employee is entitled to under the ''Employment Standards Act'' (or the ''Canada Labour Code'' for federally regulated employees). Note that if at least 50 employees were terminated at once, the employee is entitled  to additional notice under the ''ESA''; see [[{{PAGENAME}}#b) Group Terminations under the ESA | Section V.C.4(b): Group Terminations]]. In the rare case that the employee is entitled to more money under the ESA than through reasonable notice, and the employee was dismissed in the  past 6 months, consider filing a claim with the Employment Standards Branch. Otherwise, continue to the next step of the checklist.  

☑ If the potential award for (i) reasonable notice and (ii) aggravated and punitive damages is under $35,000, as of June 1, 2017, consider filing a claim in  Small Claims Court; see [[Introduction to Small Claims (20:I) | Chapter 20: Small Claims]]. If the worker has a strong case for an award significantly greater than $35,000, the worker should strongly consider contacting an employment lawyer to discuss proceeding with a claim in BC Supreme Court. If the potential award is only slightly over $35,000, the employee may wish to file in Small Claims Court, and waive their entitlement to any amount over $35,000, as proceeding in Small Claims Court can be less costly than proceeding in BC Supreme Court.

=== 2. Employment Contract Considerations ===

Most employment contracts are contracts of indefinite hiring.  This means that no definite term of employment was set out at the time of the contract, and there is an implied term that either party may terminate the contract upon giving “reasonable notice”.  The implied term to give reasonable notice can be overridden by an express notice provision limiting the amount of notice the employer is obligated to give the employee.  Accordingly the courts will assume that an employee should receive “reasonable notice” prior to termination unless the contract explicitly says something different.  If there is an express notice provision in the employment contract, then that clause is binding, unless there is a reason for it to be invalid (see '''Section V.C.2(c) and (d) Invalid Contracts''', below).  

==== b) Consideration ====

==== c) Invalid Contracts – Vagueness or Ambiguity ====

If a term of the contract is invalid, then the employee will likely receive whatever the common law provides instead of what the contract said.  

In this example, the employee would be entitled to reasonable notice under common law.  This can be greatly beneficial for the employee in cases where the common law provisions, such as the reasonable notice period, are better than the contractual provisions.

In ''Holm v AGAT Laboratories Ltd'', 2018 ABCA 23, https://canlii.ca/t/hq0n3, the Alberta Court of Appeal looked at whether a termination clause was sufficient to limit a constructively dismissed employee’s entitlement to severance.  The termination clause provided for dismissal in accordance with the Alberta Employment Standards Code, but did not clearly state that this entitlement was a ceiling.  As a result, the clause was ambiguous, and did not act to limit the employee’s severance entitlement.   

==== g) Duty to Perform Contracts in Good Faith ====

Other general rules regarding contracts apply and may also invalidate the contract. Examples of these are duress, undue influence, and unconscionability, but these occur less frequently.  

Under certain circumstances, employers and employees cannot use the above rules to invalidate a contract for their own benefit.  If a new contract is imposed in which all the benefit is to the employee, the employee cannot have the contract invalidated for lack of fresh consideration to the employer in order to avoid a severance provision or other provision of the contract.  Additionally, the employer cannot back out of a contract that only gave benefits to the employee, due to lack of fresh consideration to the employer.

Additionally, the UBC Law Library and many other law libraries hold publications with tables of cases sorted by job type, such as the Wrongful Dismissal Practice Manual by Ellen E. Mole (which is also found on Quicklaw).  WestlawNext Canada also offers Quantum Services Database for wrongful dismissal.  Comparing the Bardal factors of the employee in question with those of previous cases using either of these methods can assist in finding an appropriate range for the reasonable notice period.  As a starting point, you can ask the particular employee how much time it would take or has taken to find similar work for similar pay.

==== e) Extensions to Notice Period ====

===== Benefits =====

===== Pension =====

At common law, the employee is only entitled to be compensated for wages and benefits to which they would have been contractually entitled during the notice period, and not for any ex gratia expectancies (see ''Swann v MacDonald Dettwiler and Associates Ltd'', [1995] BCJ No 1596 (QL) (SC)), https://canlii.ca/t/1dqv2.  

Where an employee earns a variable income, courts may average the rate of pay within the relevant notice period for calculating damages; see ''O’Dea v Ricoh Canada Inc.'', 2016 BCSC 235, https://canlii.ca/t/gncc4).

If an employee is guilty of serious misconduct which goes to the heart of the employment relationship, the employer may dismiss the employee for just cause.  If an employer has just cause to dismiss an employee, it is not required to provide any notice or pay in lieu of notice.  Just cause it is a question of fact, and must be determined by a judge on a case by case basis.  

Common law has defined just cause as conduct that is inconsistent with the fulfilment of the express or implied condition of service (''Denham v Patrick'' (1910), 20 OLR 347 (Div Ct)). It is conduct inconsistent with the continuation of the employment relationship, which constitutes a  fundamental breach going to the root of the contract (''Stein v BC  Housing Management Commission'' (1989), 65 BCLR (2d) 168 (SC), (1992), 65  BCLR (2d) 181 (CA)). This includes serious misconduct, habitual neglect of duty, incompetence, conduct incompatible with the employee’s duties  or prejudicial to the employer’s business, or wilful disobedience to the employer’s orders in a matter of substance; see ''Port Arthur Shipbuilding Co v Arthurs et al'', [1968] S.C.J. No. 82, [1969] S.C.R. 85.

Where an employer accepts a certain standard of performance over a period of time, the employer cannot without warning treat such conduct as  cause for dismissal (''Dewitt v A&B Sound Ltd'' (1978), 85 DLR (3d) 604 (BCSC)).  

Although there is no comprehensive list of what constitutes just cause, the list below discusses some of the more common grounds for a dismissal.

==== d) Intoxication ====

Consider whether the intoxication is part of a larger substance abuse issue. If so, the employee may have a Human Rights claim (see [[Introduction to Human Rights (6:I) | Chapter 6: Human Rights]] and the duty to accommodate).

==== f) Illness ====

Consider whether the illness is actually a physical or mental  disability. If so, the employee may have a Human Rights claim (see [[Introduction to Human Rights (6:I) | Chapter 6: Human Rights]]).

==== i) Personality Conflict ====

An employee’s unauthorized disclose of employer confidential information may amount to a cause dismissal. An employee’s secret recording of meetings with management might be found to be a breach of confidentiality and privacy obligations amounting to cause.  See ''Hart v. Parrish & Heimbecker'', Limited 2017 MBQB 68, https://canlii.ca/t/h3n7h.

=== 6. Defences to Just Cause Arguments ===