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

=== Determine Federal or Provincial Jurisdiction ===

'''Federal Jurisdiction'''

'''Provincial Jurisdiction'''

== Determine Applicable Legislation ==

Once you have determined the jurisdiction, make note of which statutes apply to the employee, and then continue on to the next step in the  checklist: [[Checklist for Employment Law (9:III)#A. Preliminary Matters | Section IV.C: Unionized vs. Non-Unionized Employees]].  

See [[Employment Law Issues (9:IV)#10. Exceptions to the General Rule (Specialty Professions) | V.A.10: Exceptions to the General Rule (Specialty Professions)]] to determine whether the ''ESA'' applies to the employee in question. See [[Employment Law Issues (9:IV)#6. Hours of Work and Overtime Pay | V.A.6: Hours of Work and Overtime Pay]] to determine if the employee is exempt from overtime.     

=== 2. Labour Relations Code and Canada Labour Code ===

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, his or her job can be reinstated (CLC, ss 240-246).  This right exists alongside a number of other discretionary remedies for unjust dismissal under the CLC.  A complaint must be filed within 90 days (CLC, s 240(2)).  

For a discussion on the significance of the discretionary remedies for unjust dismissal available under the CLC, see the Supreme Court of Canada’s recent decision in ''Wilson v. Atomic Energy of Canada Ltd.'', 2016 SCC 29.

Employees will also often have written contractual entitlements. Any applicable written employment contract or applicable workplace policy should be reviewed carefully to both clarify the terms of employment and whether the contract is enforceable. See Section V.C(d) and (c): Invalid Contracts.

== Determine if the Employee is Unionized or Non-Unionized ==

If an employee is a union member and has a  complaint regarding the employer, he or she 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 as long as 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 Branch fact sheet on collective bargaining agreements at: http://www.labour.gov.bc.ca/esb/facshts/collagr.htm

Unions have a duty to represent their workers fairly. An employee who feels his union has not fairly represented his interests or advanced a grievance can bring a complaint under section 12 of the ''Labour Relations Code''. These complaints are seldom successful, and so it is very important  to have the employee document all requests for help to the union and document the union’s response.

== Determine if the Worker is an Employee or Independent Contractor ==

The distinction is important because independent contractors are generally not protected by the ''Employment Standards Act'' or the ''Human Rights Code'' for provincially regulated employees, or the ''Canada Labour Code'' or the ''Canada Human Rights Act'' for federally regulated employees. Additionally, independent contractors may not be entitled to reasonable notice if they are dismissed, as many employees are, although the law on this can be complex (see below).  

=== 1. Employees v. Contractors - Common Law ===

"[…]The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account.  In making this determination, the level of control the employer has over the worker's activities will always be a factor.  However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks."

*The worker signs an agreement that identifies him as a contractor. (Section 4 of the ''ESA'' states that you cannot contract out of the Act.  If you sign an independent contractor agreement, you still must meet that definition);  

In the case of ''Marbry'', the incorporated company, Marbry Ltd., distributed Avrecan’s products almost exclusively for 11 years. Marbry Ltd. employed Mr. Marbry as well as one salesperson. Considering the above factors, the court found that the contractual relationship between Marbry Ltd. and Avrecan required reasonable notice to terminate. See also ''Zupan v Vancouver (City)'', 2005 BCCA 9, https://canlii.ca/t/1jk91; ''1193430 Ontario Inc v Boa-Franc Inc'', 78 OR (3d) 81, 260 DLR (4th) 659, https://canlii.ca/t/1lwkv; ''Hillis Oil & Sales v Wynn’s Canada'', [1986] 1 SCR 57.

 

The BCSC has adopted Alberta’s ruling that dependent contractors are also entitled to reasonable notice, albeit possibly to a lesser degree than that of a regular employee (''Pasche v. MDE Enterprises Ltd.'', 2018 BCSC 801, https://canlii.ca/t/hrs4z). It appears there may also be a judicial shift away from the concept 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”.

For additional discussion of intermediate contracts, see “Intermediate Contracts of Employment”, Stephen Schwartz, Employment Law Conference 2010, Paper 4.1, CLE BC.

If the worker appears to be a dependent or independent contractor, and the worker has a legal issue that is covered by the ''ESA'' or the ''HRC'', see Sections IV.D.2 and IV.D.3 below to determine whether these statutes’ broader definitions of “employee” include the worker in question. Otherwise, continue to the next step of the checklist.

As previously mentioned, an independent contractor is not protected by the ''ESA''. However, just because an employer calls someone an independent contractor does not make him or her one. Generally, at the Employment Standards Branch, the onus is on the company to show that  someone is an independent contractor. If there is a disagreement, the Employment Standards Branch will use the common law tests. Generally, the longer and more continuous the relationship, and the less control the contractor has over his or her employment, the more likely it is to be considered an employment relationship.