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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)
Revision as of 16:53, 29 August 2016
, 16:53, 29 August 2016→B. Determine Applicable Legislation
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== B. Determine Applicable Legislation == | == B. 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:II)#A. Preliminary Matters | Section IV.C: Unionized vs. Non-Unionized Employees]]. | |||
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:II)#A. Preliminary Matters | Section | |||
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. | 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. | ||
=== | === 1. The Employment Standards Act === | ||
Provincially regulated employees are generally covered by the ''Employment Standards Act'' [''ESA'']. Be aware that certain professions and employees are exempt from the ''ESA'', or parts of the ''ESA''. Review the ''Employment Standards Regulations'' to determine if the employee is covered by the ''ESA''. | Provincially regulated employees are generally covered by the ''Employment Standards Act'' [''ESA'']. Be aware that certain professions and employees are exempt from the ''ESA'', or parts of the ''ESA''. Review the ''Employment Standards Regulations'' to determine if the employee is covered by the ''ESA''. | ||
See [[Employment Law Issues (9:IV)#10. Exceptions to the General Rule (Specialty Professions) | | 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 ==== | ||
Provincially regulated employees who belong to a union are additionally covered by the ''Labour Relations Code''. It should be noted that parts of the ''ESA'' may not apply to unionized employees. | Provincially regulated employees who belong to a union are additionally covered by the ''Labour Relations Code''. It should be noted that parts of the ''ESA'' may not apply to unionized employees. | ||
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Students should be aware that in 2015 the Supreme Court of Canada granted leave to appeal the Federal Court of Appeal decision in ''Wilson v. Atomic Energy of Canada Limited'', 2015 FCA 17, which may have an impact on a CLC employer’s ability to dismiss an employee without cause, and without the employee having access to reinstatement. | Students should be aware that in 2015 the Supreme Court of Canada granted leave to appeal the Federal Court of Appeal decision in ''Wilson v. Atomic Energy of Canada Limited'', 2015 FCA 17, which may have an impact on a CLC employer’s ability to dismiss an employee without cause, and without the employee having access to reinstatement. | ||
==== | ==== 3. Human Rights ==== | ||
Provincially regulated employees are covered by the British Columbia ''Human Rights Code''. Federally regulated employees are covered by the Canada ''Human Rights Act''. | 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. | ||
==== | ==== 4. Common Law and Contract Law ==== | ||
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. | 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. | ||
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Employees will also often have written contractual entitlements. Students should have employees provide them with any written employment contract or applicable workplace policy, and carefully review these documents to both clarify terms of employment and determine whether the contract is enforceable. | Employees will also often have written contractual entitlements. Students should have employees provide them with any written employment contract or applicable workplace policy, and carefully review these documents to both clarify terms of employment and determine whether the contract is enforceable. | ||
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 II.A: Unionized vs. Non-Unionized Employees]]. | 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 II.A: Unionized vs. Non-Unionized Employees]]. | ||
== C. Determine if the Employee is Unionized or Non-Unionized == | == C. Determine if the Employee is Unionized or Non-Unionized == | ||
