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Difference between revisions of "Preliminary Matters for Employment Law (9:IV)"
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Preliminary Matters for Employment Law (9:IV) (view source)
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== C. Determine if the Employee is Unionized or Non-Unionized == | == C. Determine if the Employee is Unionized or Non-Unionized == | ||
The student should determine whether the employee belongs to a union. If the employee does not belong to a union, continue on to the next step in the checklist: [[Checklist for Employment Law (9:II)# | The student should determine whether the employee belongs to a union. If the employee does not belong to a union, continue on to the next step in the checklist: [[Checklist for Employment Law (9:II)#A. Preliminary Matters | Section II.A: Employees vs. Independent Contractors]]. | ||
Issues | Issues regarding unionized employees can be complex, and unionized employees should therefore generally be referred to their union representative or a lawyer. However, the following paragraph provides basic information for unionized employees. | ||
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 [http://www.labour.gov.bc.ca/esb/facshts/collagr.htm fact sheet on collective bargaining agreements]. | |||
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 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. | |||
== D. Determine if the Worker is an Employee or Independent Contractor == | |||
Most workers are considered “employees”, but some are considered “independent contractors”, and some fall under an intermediate category sometimes referred to as “dependent contractors”. 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). Note that different statutes have different objectives and definitions, and as a result, “employee” and “independent contractor” may be interpreted differently under each statute. These interpretations are generally similar and sometimes follow the same tests; however, the ''ESA'' and particularly the ''HRC'' may define “employee” more broadly than the common law tests would – see [[{{PAGENAME}}#2. Employees v. Contractors - Employment Standards Act | Sections III.D.2]] and [[{{PAGENAME}}#3. Employees v. Contractors - Human Rights Code | III.D.3]], below. As a result, those who would be categorized as dependent or independent contractors under the common law may sometimes be categorized as employees under the ''HRC''. | |||
In ''McCormick v Fasken Martineau DuMoulin LLP'' (2014 SCC 39), the Supreme Court of Canada affirmed that the key to a determination of employment relationship is the degree of control and dependency. | |||
=== 1. Employees v. Contractors - Common Law === | |||
The common law distinction between employees, dependent contractors, and independent contractors should be used if pursuing a claim regarding the employment contract, such as a wrongful dismissal claim. | |||
An employee is typically highly controlled by the employer: the employer might set the employee’s hours, provide training, decide how work should be performed, require adherence to policies such as dress codes, and discipline the employee for misconduct. The employer would also typically make Canada Pension Plan (CPP) and Employment Insurance (EI) deductions, provide Worker’s Compensation coverage, and pay for any business expenses and equipment. Employees tend to be highly dependent on the employer to earn their living. | |||
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, and determine whether to hire their own employees or subcontractors to assist in performing the work. 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 fairly dependent on that business to earn their living. None of the factors listed above can alone determine the categorization of the worker. One of the leading tests to apply to determine how to categorize the worker is set out in ''671122 Ontario Ltd v Sagaz Industries Canada Inc'', 2001 SCC 59, [2001] 2 SCR 983: | |||
:[...]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. | |||
:It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case. | |||
