Difference between revisions of "Employment Law Issues (9:V)"
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Federal equal pay provisions in the ''Canadian Human Rights Act'' are somewhat broader than those found in B.C.’s ''Human Rights Code''. It is discriminatory under the ''Canadian Human Rights Act'' to pay male and female employees different wages where the work that they are doing is of comparatively equal value. This means that even if the work itself is not demonstrably similar, the pay equity provisions may still be enforced if the value of the work is similar. Factors that are considered in determining whether work is of equal value include: skill, efforts and responsibility required, and conditions under which the work is performed (''Canadian Human Rights Act'', s 11(2)). | Federal equal pay provisions in the ''Canadian Human Rights Act'' are somewhat broader than those found in B.C.’s ''Human Rights Code''. It is discriminatory under the ''Canadian Human Rights Act'' to pay male and female employees different wages where the work that they are doing is of comparatively equal value. This means that even if the work itself is not demonstrably similar, the pay equity provisions may still be enforced if the value of the work is similar. Factors that are considered in determining whether work is of equal value include: skill, efforts and responsibility required, and conditions under which the work is performed (''Canadian Human Rights Act'', s 11(2)). | ||
=== 2. Harassment in the workplace === | === 2. Duty to Inquire === | ||
In Lord v. Fraser Health Authority and another, 2020 BCHRT 64, the BCHRT noted that if something reasonably alerts the employer that the employee might have a disability that required accommodation, this duty to inquire becomes the first step in the duty to accommodate process. If an employer thinks there is a connection between an employee’s poor work performance and a disability, the employer should inquire with the employee as to whether the employee has an illness or disability that is affecting performance, prior to taking actions that adversely affects the employee. Failure to do so could be a breach of the duty to accommodate. | |||
=== 3. Harassment in the workplace === | |||
Bullying and harassment in the workplace are developing areas of the law. There are several possible avenues for addressing a complaint in this area if the issue cannot be resolved within the workplace. | Bullying and harassment in the workplace are developing areas of the law. There are several possible avenues for addressing a complaint in this area if the issue cannot be resolved within the workplace. | ||
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Finally, if the bullying or harassment is of an extremely serious nature, such as serious sexual harassment, consider whether the behaviour might be criminal and whether the police should be contacted. | Finally, if the bullying or harassment is of an extremely serious nature, such as serious sexual harassment, consider whether the behaviour might be criminal and whether the police should be contacted. | ||
=== | === 4. Retaliation for Filing a Complaint === | ||
Generally, employers are not permitted to retaliate against an employee who files a statutory complaint. | Generally, employers are not permitted to retaliate against an employee who files a statutory complaint. | ||
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A provincially regulated employee might file a complaint against an employer at the Employment Standards Branch, the Human Rights Tribunal, or with WorkSafe. The ''Employment Standards Act'', the ''Human Rights Code'', and the ''Workers Compensation Act'' each contain provisions which prohibit retaliation for filing complaints. | A provincially regulated employee might file a complaint against an employer at the Employment Standards Branch, the Human Rights Tribunal, or with WorkSafe. The ''Employment Standards Act'', the ''Human Rights Code'', and the ''Workers Compensation Act'' each contain provisions which prohibit retaliation for filing complaints. | ||
=== | === 5. Employment Standards Act Claim Retaliation === | ||
An employer may not threaten, terminate, suspend, discipline, penalize, intimidate, or coerce an employee because the employee filed a complaint under the ''ESA'' (s 83). If this does happen, the Employment Standards Branch may order that the employer comply with the section, cease doing the act, pay reasonable expenses, hire or reinstate the employee and pay lost wages, or pay compensation (s 79). A complaint may be filed with the Employment Standards Branch. | An employer may not threaten, terminate, suspend, discipline, penalize, intimidate, or coerce an employee because the employee filed a complaint under the ''ESA'' (s 83). If this does happen, the Employment Standards Branch may order that the employer comply with the section, cease doing the act, pay reasonable expenses, hire or reinstate the employee and pay lost wages, or pay compensation (s 79). A complaint may be filed with the Employment Standards Branch. | ||
=== | === 6. Human Rights Code Claim Retaliation === | ||
A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code (s 43). If a person is discriminated against in such a manner, they may file a complaint at the Human Rights Tribunal in the same way that they would complain about any other discriminatory practice; see [[BC Human Rights Code (6:III)#C. The Complaint Process | Chapter 6: Human Rights, Section III.C: The Complaint Process]]. | A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code (s 43). If a person is discriminated against in such a manner, they may file a complaint at the Human Rights Tribunal in the same way that they would complain about any other discriminatory practice; see [[BC Human Rights Code (6:III)#C. The Complaint Process | Chapter 6: Human Rights, Section III.C: The Complaint Process]]. | ||
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An employee may face retaliation for bringing an internal complaint, possible through a formal complaint process outlined in an employment policy. If the employer retaliates against the employee in a significant manner, this could constitute a constructive dismissal. In addition, if the employer dismisses the employee following a legitimate complaint, this may form grounds for an aggravated damages claim as a result of a bad faith dismissal. | An employee may face retaliation for bringing an internal complaint, possible through a formal complaint process outlined in an employment policy. If the employer retaliates against the employee in a significant manner, this could constitute a constructive dismissal. In addition, if the employer dismisses the employee following a legitimate complaint, this may form grounds for an aggravated damages claim as a result of a bad faith dismissal. | ||
=== | === 7. Employee's Privacy === | ||
==== Legislation ==== | ==== Legislation ==== | ||