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

For more information see: http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/variances.

After 5 days of work, the employer is required to pay the employee 4% of his wages as vacation pay. After 5 years of employment, this increases to 6%. Employers are required to bank vacation pay for an employee, and then pay the employee their banked vacation pay 7 days before the employee’s annual vacation.  Alternatively, with written consent the employer can pay the employee his or her vacation pay on each paycheck.

Alternatively, with written consent the employer can pay the employee his vacation pay on each paycheck. If the employee is terminated, the employer is required to pay out any vacation pay owing to the employee. 

If the employee is terminated, the employer is required to pay out any vacation pay owing to the employee. Be aware that in some circumstances employees will have claims for years of vacation pay owing.  These monies may still be owing and collectable, and may not be limited by the standard six month limit for how far back an employee can claim wages.

 

Pregnancy leave is protected under the ''ESA'' and the ''HRC''. An employee dismissed while on pregnancy leave may also be entitled to a larger common law severance.  

Under ss 50 and 51 of the ''ESA'', a birth mother is entitled to take up to 17 consecutive weeks of unpaid pregnancy leave if the leave starts before birth or termination of the pregnancy. In addition, the birth mother can take a further 35 weeks of parental leave where pregnancy leave was taken, or 37 consecutive weeks of parental leave where pregnancy leave was not taken. Although the employer does not have to pay wages during a pregnancy or parental leave, Employment Insurance may cover a portion of the wages during this period if the person qualifies.  Please refer to [[Introduction to Employment Insurance (8:I) | Chapter 8: Employment Insurance]] for more information. The parental leave periods to which birth fathers and adoptive parents are entitled were also extended by the ''ESA'' from 12 to 37 consecutive weeks. Employees must give their employer four weeks written notice of pregnancy or parental leave, but even if they do not, they are still protected by the ''ESA''.  

The employer may request a medical certificate to verify an anticipated birth date or the date of pregnancy termination.  Pregnancy leave may commence up to 11 weeks prior to the estimated date of birth, and no later than the actual birth date of the child; it ends between 6 and 17 weeks after the actual birth date.  To request pregnancy leave for a period shorter than six weeks following the birth of the child or termination of the pregnancy, an employee must provide one week written notice to the employer and may have to supply a medical certificate confirming the employee’s ability to return to work.  Parental leave can begin at any time within one year of the birth or adoption of the child and need not conclude within that year; however, it must all be taken in one block.

Pregnancy leave can be extended by six weeks with a doctor’s certificate outlining reasons related to the birth or termination. Parental leave can be extended by five weeks where the child has a psychological, physical, or emotional condition that requires such an extension.

An employer has a duty to allow the employee the leave he or she requests 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 he or she 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.  

Maternity rights are being quickly developed by the courts. Supreme Court decisions such as ''Brooks v.Canada Safeway Ltd.'', [1989] 1 SCR, 1219, should be reviewed before giving advice to clients with this type of grievance. This case says that pregnancy, while not considered a sickness or accident, is a valid health-related reason for absence from work.  

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.

If an employee has been terminated while on leave, in some cases they may be able to make a claim for wrongful dismissal in Small Claims Court or the Civil Resolution Tribunal. See [[Remedies in Employment Law (9:VI) | Section VI: Remedies]] for further details. Consider whether the circumstances of dismissal in breach of protected leave provisions might be grounds for aggravated or punitive damages in civil court.