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

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 [[Preliminary Matters for Employment Law (9:III) | 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 [[Remedies in Employment Law (9:V) | Section V: Remedies]] to find out how to proceed.  

== A. Common Employment Law Issues ==

 

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

*Place of Origin

*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 [[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. 

 

 

 

 

 

 

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)).

 

 

 

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.

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

 

 

 

 

 

 

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.   

 

 

 

 

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 ''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. 

 

 

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 theft, trespassing, and vandalism. GPS tracking of employees’ work vehicles has also been permitted (''Schindler Elevator Corporation'', Order P12-01, 2012 BCIPC 25), though it generally necessary for the employer to inform the employee of the GPS tracking.

 

 

 

 

 

 

 

 

 

For provincially regulated employees, the ''ESA'' sets the minimum standards for how an employer can act during the course of employment. The ''ESA'' addresses some of the most basic employee entitlements, such as wages, vacation pay, holiday pay, overtime, pregnancy and other  leaves, and termination standards.  

 

For federally regulated employees, the ''Canada Labour Code'' sets these minimum standards. This section primarily discusses the ''ESA'', but the ''Canada Labour Code'' has many similar provisions. 

See [[{{PAGENAME}}#10. Exceptions to the General Rule (Specialty Professions) | IV.B.10: Exceptions to the General Rule (Specialty Professions)]] to determine whether the ''ESA'' applies to the employee in question. See [[{{PAGENAME}}#6. Hours of Work and Overtime Pay | IV.B.6: Hours of Work and Overtime Pay]] to determine if the employee is exempt from overtime.

An employer may not induce a person to become an employee or to make him or herself available for work by deceptive or false representations or  advertising respecting the availability of a position, the nature of the work to be done, the wages to be paid for the work, or the conditions  of employment. If this occurs, the employee could file a complaint at the Employment Standards Branch per section 8 of the ''ESA'', or could potentially sue for the tort of misrepresentation. For more information about this tort, see ''Queen v Cognos Inc'', [1993] 1 SCR 87.

Section 16 of the ''ESA'' deals with the issue of “claw-backs”. This term refers to an employer who gives an employee an advance on future wages or commissions. Section 16 states that when the employer re-claims such advances, they must not take back an amount that would leave the employee under the minimum wage rate for the hours worked. Commission workers’ claw-backs must equal with the minimum wage.

Wages must be paid semi-monthly and no later than eight days after the end of the pay period (''ESA'', s 17). This section does not apply to  public school teachers and professors (''ES Regulation'', s  40).  Wages, as defined in Part 1, include salaries, commissions, work incentives, compensation for length of service (''ESA'', s 63), money by order of the tribunal, and money payable for employees’ benefit to a fund or  insurer (in Parts 10 and 11 only). The definition does not include, for instance, expenses, penalties, gratuities, or travel allowance (however, travel time is considered time worked for which wages are payable, whereas commuting time is generally not). An employer cannot require an employee to pay any of the employer’s business costs. Every payday, employees must be given a statement showing hours worked, wage rate/overtime wage rate, deductions, method of wage calculation, gross/net wages, and time bank amounts (''ESA'', s 27). Electronic statements can be provided instead under certain conditions (s 27(2)).  

Be aware that even though an employee is considered a manager (or falls within another overtime exemption), the employee is still entitled to be paid for all hours worked. If a manager or other exempt employee works more hours than set out in their employment contract, they may be entitled to additional pay for those hours at a straight time rate. 

The ''ESA'' Interpretation Guidelines provides some helpful discussion on overtime, and can be found at http://www.labour.gov.bc.ca/esb/igm/esa-part-4/igm-esa-s-35.htm .  

Entitlement to overtime pay may be affected by an employment contract. If the employment contract specifies that an annual salary is in exchange for a set amount of hours over 40, this may impact the employee’s entitlement to be paid at an overtime rate.

An employer may not terminate an employee for taking a leave he or she is entitled to take under the ''ESA''. In the case of an alleged contravention of Part 6 by the employer, the burden is on the employer to prove that the reason for a termination was not a pregnancy, jury duty or other leave allowed by the Act (s 126(4)(c)). When there is an infraction of this section of the Act, the Director of Employment Standards can order that the employee be reinstated (s 79). However, this almost never occurs (see [[Remedies in Employment Law (9:V) | Section V: Remedies]] for more details). Section 79(2) is a very powerful “make whole remedy” which allows the Director to reinstate the employee and pay them any wages lost due to the contravention of the Act. Termination during a leave may also give rise to a cause of action before the Human Rights Tribunal.  

If an employee was dismissed due to a leave of absence but the limitation date to file a claim with the Employment Standards Branch has passed, consider whether the employee may have a wrongful dismissal claim; see section [[{{PAGENAME}}#E. Termination of Employment | IV.E: Termination of Employment]].  

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. See [[Remedies in Employment Law (9:V) | Section V: Remedies]] for further details.  

=== 10. Exceptions to the General Rule (Specialty Professions) ===

See [[Preliminary Matters for Employment Law (9:III)#D. Determine if the Worker is an Employee or Independent Contractor | Section III.D: Employees vs. Independent Contractors]] to determine whether the worker in question is an employee or an independent contractor. The ''ESA'' applies only to employees.   

The ''ESA'' has special provisions for farm and domestic labourers. See the Act and Regulation for more details. A domestic worker must have a written employment contract and be registered with the Employment Standards Branch (''ESA'', ss 14 and 15). The Employment Standards Branch is  working in cooperation with federal immigration officials to curb abuses of the program. The federal agency will ensure that the employer is registered with the Branch before entry of a new immigrant is authorized. In 2002, under the banner of creating a more flexible workforce, the ''ESA'' was changed to exclude domestic and farm workers from certain overtime laws. Essentially domestic and farm workers can have their  hours averaged without the need for consent (see above at [[{{PAGENAME}}#h) Averaging Agreements | Section IV.B.6(h): Averaging Agreements]]).

'''NOTE:''' The federal government via Citizenship and Immigration Canada administers the Live-in Caregiver Program. The Program came into effect on  April 27, 1992. The purpose of the program is to prevent abuse and exploitation of domestic workers. The program was to clarify the  employer-employee relationship by providing information on the terms and conditions of employment and on the rights of workers under Canadian law. The program also sets out educational requirements for live-in caregivers which are designed to aid a worker’s ability to get a job after  gaining permanent residency status and leaving domestic employment. While the first-year assessment interview and in-Canada skills upgrading  have been eliminated, the remaining requirements are very high, thereby forming a serious barrier for these women to enter Canada. The program requires the equivalent of a Grade 12 education (equivalent to second-year university in many countries) and six months of formal training in  the caregiving field or one year of full-time paid work experience, and good knowledge of English or French. Further information is available  from the West Coast Domestic Workers’ Association (see [[Legislation, Resources, and Referrals for Employment Law (9:App B)#C. Referrals | Appendix B.C: Referrals]]).

== C. Breach of contractual terms of employment ==

The most common breach of an employee’s contract (whether the terms of that contract are oral or in writing or a combination of the two) is  when an employee is fired without being provided with reasonable notice of that dismissal or being paid money in lieu of reasonable notice (i.e. severance). The failure to provide reasonable notice is also referred to as a wrongful dismissal. See the section on Termination below.  

There are also situations during the employment relationship where an employer can breach other terms of an employment contract (other than the notice requirement). For example, an employer might fail to pay a previously agreed upon bonus to an employee.  

Claims for breach of contract  are addressed through civil court claims, either at Provincial Court or Supreme Court depending on the potential value of the case.   

Suing an employer while still on working notice is a risky move, as a court can find that the act of suing an employer can amount to just cause.  

While there is conflicting case law on whether an employer would have just cause to dismiss an employee who sues the employer while still employed, students should research this point further prior to advising an employee to sue their employer while still employed or during a period of working notice.  

If an employer has significantly changed the type of work done by an employee, the employee’s rate of pay, or other working conditions, the employee may have been “constructively dismissed” and may be entitled to damages; see Section IV.D.1(d): Dismissal for further information. 

Sometimes, a written contract, or certain provisions within it, will be invalid. See Section IV.D.1(a) to determine whether the contract or any of its provisions are invalid.  

== D. Harassment in the workplace ==

Bullying and harassment in the workplace are developing areas of the law. There are several possible avenues for addressing a complaint in this area if the issue cannot be resolved within the workplace.

Recently, the Workers Compensation Act was amended to cover mental disorders caused by workplace bullying and harassment (''Workers Compensation Act'', RSBC 1996 c 492, s 5.1); [[Introduction to Workers%27 Compensation (7:I) | Chapter 7: Workers’ Compensation]] provides additional information on how to make a claim.

If the bullying or harassment is related to discrimination based on one of prohibited grounds listed in the ''Human Rights Code'', the employee may be able to file a complaint with the Human Rights Tribunal; see [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]] for additional information.  

Finally, the bullying or harassment could potentially constitute a constructive dismissal for which the employee could claim damages in court; see IV.D.2(d): Dismissal.  

== E. Termination of Employment ==

☑ This section applies to both provincially and federally regulated non-unionized employees, dependent contractors, and independent contractors. It is necessary to determine which category the worker falls under. See [[Preliminary Matters for Employment Law (9:III) | Section III: Preliminary Matters]] to determine this.  

☑ Determine whether the worker has an indefinite or fixed term contract of employment. See Section IV.D.2(a): Indefinite vs. Fixed Term Employment for details, as some contracts that appear to be for a fixed term may be deemed to be of indefinite duration by the courts, particularly when the fixed term contract is renewed year after year.  

☑ Determine whether the worker was dismissed or if they resigned. Sometimes a worker may have been forced to resign or may have had their pay or working conditions changed significantly; see Section IV.D.2(d): Dismissal to determine whether your situation would be considered a constructive dismissal or a resignation.  

☑ If it appears that the contract may have become impossible to perform, determine whether there has been “frustration” of the contract; see section [[{{PAGENAME}}#16. Frustration of Contract | IV.E.16: Frustration of Contract]]. Note that this is rare, and layoffs usually do not fall into this category.  

*If this amount is specified, determine whether that provision of the contract is valid; see Section IV.D.2(b): Invalid Contracts and Provisions. If it is valid, it will determine the amount of severance they are entitled to.  

**Employees, dependent contractors, and independent contractors who are dismissed part way through a fixed term contract may be entitled to damages for breach of the contract; see Section IV.D.2(e)(2): Damages for breach of a fixed-term contract. Use these damages in place of those  damages regarding “reasonable notice” for the rest of the checklist.  

☑ Determine whether there may be just cause for dismissal; see [[{{PAGENAME}}#5. Just Cause Dismissal | Section IV.E.5: Just Cause]]. Note that it is often very difficult for an employer to prove that there is just cause. If there may be just cause, consider whether the employee has a potential defence; see Section [[{{PAGENAME}}#6. Defences to Just Cause Arguments | IV.E.6: Defences to Just Cause Arguments]].  

☑ For those workers entitled to reasonable notice, determine an approximate length for the worker’s reasonable notice period; see Section IV.D.2(e): Notice. Note that it is difficult to predict how much a particular worker will receive if the case goes to trial, but case law can give an approximate range. Once this is done, calculate the damages the employee would be entitled to for the reasonable notice  period. This generally includes the salary and benefits that the employee would have received if they had continued to be employed during the reasonable notice period.  

☑ Determine whether the worker has mitigated their damages. Note that if the worker has mitigated their damages during the notice period, for example by finding a new job, they will have their severance award reduced by the amount of money they earn during the notice period. If the worker does not make reasonable attempts to find a new job, they may have their severance award reduced. See [[{{PAGENAME}}#14. Duty to Mitigate | Section IV.E.14: Duty to Mitigate]].

☑ Determine whether the worker may be entitled to aggravated and/or punitive damages. If so, estimate how much they may be entitled to, and determine whether the worker has a strong case for these types of damages. See [[{{PAGENAME}}#13. Aggravated and Punitive Damages | Section IV.E.13: Aggravated and Punitive Damages]].  

☑ If the worker was an employee, determine what length of notice the employee is entitled to under the ''Employment Standards Act'' (or the ''Canada Labour Code'' for federally regulated employees). Note that if at least 50 employees were terminated at once, the employee is entitled  to additional notice under the ''ESA''; see [[{{PAGENAME}}#b) Group Terminations under the ESA | Section IV.E.4(b): Group Terminations]]. In the rare case that the employee is entitled to more money under the ESA than through reasonable notice, and the employee was dismissed in the  past 6 months, consider filing a claim with the Employment Standards Branch. Otherwise, continue to the next step of the checklist.