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 IV: 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 VI: Remedies]] to find out how to proceed.  

See [[{{PAGENAME}}#10. Exceptions to the General Rule (Specialty Professions) | IV.C.5: 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 | V.A.6: Hours of Work and Overtime Pay]] to determine if the employee is exempt from overtime.

An employer cannot require employees to pay any business costs – as either a deduction from their paycheque or out of their pockets or gratuities. Examples of business costs include loss due to theft, damage, breakage, or poor quality of work, damage to employer’s property, or failure to pay by a customer (e.g. dine-and-dash). If an employer deducts business costs from an mployee’s wages they can be required to  reimburse the employee for the amount, and can be fined by the Employment Standards Branch for failing to follow the ''ESA''.

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 VI: 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 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 IV: Remedies]] for further details.  

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

☑ 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 IV: Preliminary Matters]] to determine this.