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

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*The person complains or is named in a complaint, gives evidence, or otherwise assists in a complaint or other proceeding under the ''HRC''  
*The person complains or is named in a complaint, gives evidence, or otherwise assists in a complaint or other proceeding under the ''HRC''  


This prohibition against discrimination in employment includes discrimination in the hiring process, in the terms and conditions of employment,  and in decisions to terminate employment. Employment agencies also must not refuse to refer a person for employment based on one of the prohibited grounds for discrimination. Trade unions, employer’s organizations, and occupational associations cannot discriminate against people by excluding, expelling or suspending them from membership (s 14).There must be no discrimination in wages paid (s 12). Men and women must receive equal pay for similar or substantially similar work.  Similarity is to be determined having regard to the skill, effort, and responsibility required by a job. Family status protection includes childcare and family obligations. See Johnstone v Canada Border Services (2010 CHRT 20).  
This prohibition against discrimination in employment includes discrimination in the hiring process, in the terms and conditions of employment,  and in decisions to terminate employment. Employment agencies also must not refuse to refer a person for employment based on one of the prohibited grounds for discrimination. Trade unions, employer’s organizations, and occupational associations cannot discriminate against people by excluding, expelling or suspending them from membership (s 14).
 
There must be no discrimination in wages paid (s 12). Men and women must receive equal pay for similar or substantially similar work.  Similarity is to be determined having regard to the skill, effort, and responsibility required by a job. Family status protection includes childcare and family obligations. See ''Johnstone v Canada Border Services'' (2010 CHRT 20).  
 
For more information about each of the prohibited grounds, see [[BC Human Rights Code (6:III)#B. Prohibited Grounds of Discrimination | Chapter 6: Human Rights, Section III.B: Prohibited Grounds of Discrimination]]. See also “Recent Human Rights Cases of Interest for Employment Lawyers”, Michael A. Watt, Employment Law Conference 2014, Paper 4.1, CLE BC. 
 
Though generally employers are prohibited from discriminating against employees, it is permitted if the discrimination is required due to a bona fide occupational requirement (ss 11, 13). 
 
Once it appears that the employee has been discriminated against based on a prohibited ground, see [[Remedies in Employment Law (9:V)#C. The B.C. Human Rights Tribunal | Section V.C: The B.C. Human Rights Tribunal]] of this chapter for basic information on remedies for discrimination, or see [[BC Human Rights Code (6:III)#C. The Complaint Process | Chapter 6: Human Rights, Section III.C: The Complaint Process]] for more detailed information. 
 
Federally regulated employees are covered by the ''Canadian Human Rights Act''.
 
Similar protections are provided to that of the ''Human Rights Code'', though they are not identical.
 
The federal act allows employers to have mandatory retirement, whereas in BC, the provincial code was amended in 2008 to prohibit mandatory retirement.
 
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. Retaliation for Filing a Complaint ===
 
Generally, employers are not permitted to retaliate against an employee who files a statutory complaint. 
 
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) Employment Standards Act ====
 
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
 
==== b) Human Rights Code ====
 
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 9-10the  Human  Rights  Tribunal  in  the  same  way  that  they  would  complain  about  any other discriminatory practice; see Chapter 6: Human Rights, Section III.C: The Complaint Process. c)Workers Compensation A ct Employers  and  unions  must  not  take  or  threaten  discriminatory  action  against  a worker  for  taking  various  actions  in  regards  to  the  Act,  such  as  reporting  unsafe working  conditions  to  a  WorkSafe  officer  (s  151).  Remedies  include  the  ability  to reinstate the worker to their job (s 153). Additional details are set out in the Workers Compensation Act,  Division  6 –  Prohibition  Against  Discriminatory  Action.  To file  acomplaint, see the WorkSafeBC website at: http://www.worksafebc.com/workers/improving_health_and_safety_at_work/discriminatory_action_complaints/default.asp      d)Common Law Issues/Internal Complaints  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.    3.Employees’ Privacy a)Legislation There are three statutes in BC that concern privacy. The Privacy Act,  RSBC  1996  c  373,  creates  a  statutory  tort  for  breach of  privacy. Whether a person’s actions or conduct constitutes tortious conduct depends on what is  reasonable  in  the  circumstances.  An  action  for  breach  of  privacy  can  only  be brought in BC Supreme Court. The Freedom of Information and Protection of Privacy Act,  RSBC  1996,  c  165,  [FOIPPA] applies  to  public  bodies  such  as  governmental  ministries,  universities,  health authorities,  etc.  It  gives  individuals  a  right  to  access  information  held  about themselves and access to many documents held by the public bodies. It also governs the collection, use, and disclosure of personal information, including public bodies’employees’ personal information. The Personal Information Protection Act,  SBC  2003,  c  63,  [PIPA]  applies  to  almost  all organizations  that  are  not  public  bodies  covered  by  FOIPPA.  It  governs  the collection, use, and disclosure of personal information, including employees’ personal information.  b)Balancing Employer and Employee Interests Generally,  employers  can  collect  information  that  is  reasonably  necessary  in  the circumstances. Some of the factors to be considered are whether the collection of the personal  information is  required  to  meet  a  specific  need, whether  the collection  of information is likely to meet that need, whether the loss of privacy is proportional to the benefit gained, and whether there are less privacy-invasive methods of achieving the  same  end,  per Eastmond  v  Canadian  Pacific  Railway,  2004  FC  852.  In  that  case, surveillance  of  a  rail  yard  was  permitted  after  there  were a number  of incidents  of


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Revision as of 22:42, 3 June 2016



Use this section to identify any potential issues the employee might have. Note that this section is geared towards identifying the most common employment law issues for provincially regulated non-unionized employees (see Section III: Preliminary Matters to determine whether the worker in question is a provincially regulated non-unionized employee). However, many issues will apply in a similar fashion to federally regulated employees, and some issues will also apply to unionized employees.

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 Section V: Remedies to find out how to proceed.

A. Common Employment Law Issues

1. Discrimination in Employment

For provincially regulated employees, the Human Rights Code prohibits discrimination in employment on the basis of the following prohibited grounds (ss 13, 43):

  • Race
  • Colour
  • Ancestry
  • Place of Origin
  • Political Belief
  • Marital Status
  • Family Status
  • Physical or Mental Disability
  • Sex (this includes sexual harassment, and discrimination based on pregnancy or transgendered status)
  • Sexual Orientation
  • Age (only those over 19 years of age are protected by this provision)
  • The person was convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person
  • The person complains or is named in a complaint, gives evidence, or otherwise assists in a complaint or other proceeding under the HRC

This prohibition against discrimination in employment includes discrimination in the hiring process, in the terms and conditions of employment, and in decisions to terminate employment. Employment agencies also must not refuse to refer a person for employment based on one of the prohibited grounds for discrimination. Trade unions, employer’s organizations, and occupational associations cannot discriminate against people by excluding, expelling or suspending them from membership (s 14).

There must be no discrimination in wages paid (s 12). Men and women must receive equal pay for similar or substantially similar work. Similarity is to be determined having regard to the skill, effort, and responsibility required by a job. Family status protection includes childcare and family obligations. See Johnstone v Canada Border Services (2010 CHRT 20).

For more information about each of the prohibited grounds, see Chapter 6: Human Rights, Section III.B: Prohibited Grounds of Discrimination. See also “Recent Human Rights Cases of Interest for Employment Lawyers”, Michael A. Watt, Employment Law Conference 2014, Paper 4.1, CLE BC.

Though generally employers are prohibited from discriminating against employees, it is permitted if the discrimination is required due to a bona fide occupational requirement (ss 11, 13).

Once it appears that the employee has been discriminated against based on a prohibited ground, see Section V.C: The B.C. Human Rights Tribunal of this chapter for basic information on remedies for discrimination, or see Chapter 6: Human Rights, Section III.C: The Complaint Process for more detailed information.

Federally regulated employees are covered by the Canadian Human Rights Act.

Similar protections are provided to that of the Human Rights Code, though they are not identical.

The federal act allows employers to have mandatory retirement, whereas in BC, the provincial code was amended in 2008 to prohibit mandatory retirement.

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. Retaliation for Filing a Complaint

Generally, employers are not permitted to retaliate against an employee who files a statutory complaint.

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) Employment Standards Act

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

b) Human Rights Code

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 9-10the Human Rights Tribunal in the same way that they would complain about any other discriminatory practice; see Chapter 6: Human Rights, Section III.C: The Complaint Process. c)Workers Compensation A ct Employers and unions must not take or threaten discriminatory action against a worker for taking various actions in regards to the Act, such as reporting unsafe working conditions to a WorkSafe officer (s 151). Remedies include the ability to reinstate the worker to their job (s 153). Additional details are set out in the Workers Compensation Act, Division 6 – Prohibition Against Discriminatory Action. To file acomplaint, see the WorkSafeBC website at: http://www.worksafebc.com/workers/improving_health_and_safety_at_work/discriminatory_action_complaints/default.asp d)Common Law Issues/Internal Complaints 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. 3.Employees’ Privacy a)Legislation There are three statutes in BC that concern privacy. The Privacy Act, RSBC 1996 c 373, creates a statutory tort for breach of privacy. Whether a person’s actions or conduct constitutes tortious conduct depends on what is reasonable in the circumstances. An action for breach of privacy can only be brought in BC Supreme Court. The Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165, [FOIPPA] applies to public bodies such as governmental ministries, universities, health authorities, etc. It gives individuals a right to access information held about themselves and access to many documents held by the public bodies. It also governs the collection, use, and disclosure of personal information, including public bodies’employees’ personal information. The Personal Information Protection Act, SBC 2003, c 63, [PIPA] applies to almost all organizations that are not public bodies covered by FOIPPA. It governs the collection, use, and disclosure of personal information, including employees’ personal information. b)Balancing Employer and Employee Interests Generally, employers can collect information that is reasonably necessary in the circumstances. Some of the factors to be considered are whether the collection of the personal information is required to meet a specific need, whether the collection of information is likely to meet that need, whether the loss of privacy is proportional to the benefit gained, and whether there are less privacy-invasive methods of achieving the same end, per Eastmond v Canadian Pacific Railway, 2004 FC 852. In that case, surveillance of a rail yard was permitted after there were a number of incidents of

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