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

{{LSLAP Manual TOC|expanded = employment}}

Employees are subject to either federal or provincial employment legislation.  

This section will help you determine whether the employee is covered by federal or provincial jurisdiction, and which statutes apply.  

'''Federal Jurisdiction'''

Employees who are not within the scope of federal legislation generally fall under provincial jurisdiction and accordingly their employment is governed by provincial 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]].  

Note that this chapter focuses on provincial legislation. In cases where the employee is federally-regulated, this chapter can still be of assistance as the provincial and federal statutes have many similarities, but it will be necessary to read the federal statutes to determine whether a particular provision is similar.  

Provincially regulated employees are generally covered by the ''Employment Standards Act'' [ESA] as updated by the Employment Standards Amendment Act.  

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.     

Provincially regulated employees who belong to a union are covered by the ''Labour Relations Code'' in addition to the ''ESA''.  However, some parts of the ESA do not apply to unionized employees.

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.

Provincially regulated employees are covered by the British Columbia ''Human Rights Code''. Federally regulated employees are covered by the Canada ''Human Rights Act''.  For more information on Human Rights claims: See [[Chapter 6: Human Rights (6) | Chapter 6: Human Rights]].

In addition to statutory entitlements, provincially and federally regulated employees have common law employment entitlements.  Causes of action, such as breach of contract due to wrongful dismissal, remain the same whether the employee is provincially or federally regulated.   

Unionized employees may have common law or contractual entitlements, but generally these entitlements have to be acted upon by the union that is party to the collective agreement. See [[Checklist for Employment Law (9:II)#A. Preliminary Matters | Section IV.C: Unionized vs. Non-Unionized Employees]].

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 IV.D: Determine if the Worker is an Employee or Independent Contractor]].  

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.

Most workers are considered “employees”, but some are considered “independent contractors”, and some fall under an intermediate category  sometimes referred to as “dependent contractors”.

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 IV.D.2]] and [[{{PAGENAME}}#3. Employees v. Contractors - Human Rights Code | IV.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''.

When considering an employment related claim, it will be important to determine if the claimant was an employee, dependent contractor, or an independent contractor.   

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.

The distinction between employees and independent contractors under the ''Employment Standards Act'' is quite similar to that under the common law. It should be used when pursuing a claim at the Employment Standards Branch.  

Generally speaking, the ESA is to be given a wide and liberal interpretation (per ''Interpretation Act'', RSBC 1996, c 238, s 8; see also ''Machtinger v HOJ Industries Ltd'', [1992] 1 SCR 986 and ''Rizzo & Rizzo Shoes Ltd (Re)'', [1998] 1 SCR 27). The legislation is always  construed broadly when determining whether someone is or is not an employee.

The distinction between employees and independent contractors under the ''Human Rights Code'' should be used when pursuing a claim at the Human Rights Tribunal.  

The Canadian Human Rights Tribunal also uses a broader definition of employment compared to the common law; see ''Canadian Pacific Ltd v Canada  (Human Rights Commission)'', [1991] 1 FC 571 (CA),  at paras 9-15.

The Supreme Court of Canada recently upheld a British Columbia decision extending employer occupational health and safety obligations to contractors. See West Fraser Mills Ltd. v. British Columbia (Workers Compensation Appeal Tribunal) 2018 SCC 22.  If a contractor has been injured in the workplace, explore whether employee occupational health and safety regulations may apply to the contractor.