Employment Law Issues (9:V): Difference between revisions
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The ''ES Regulation'' makes special provision for workers in the high technology sector. Most importantly, these professionals are exempt from the ''ESA'' provisions relating to hours of work, overtime, and Statutory Holidays (Parts 4 and 5). It is not easy, however, for an employee to qualify as a high technology professional – the criteria are very specific. See s 37.8 of the ''ES Regulation'' for a more detailed description, and especially if the employee deals with computers, information service, and scientific or technological endeavours. | The ''ES Regulation'' makes special provision for workers in the high technology sector. Most importantly, these professionals are exempt from the ''ESA'' provisions relating to hours of work, overtime, and Statutory Holidays (Parts 4 and 5). It is not easy, however, for an employee to qualify as a high technology professional – the criteria are very specific. See s 37.8 of the ''ES Regulation'' for a more detailed description, and especially if the employee deals with computers, information service, and scientific or technological endeavours. | ||
Not all employees classified as high tech professionals by their employer fit the definition, and as a result may be entitled to overtime. The BC Employment Standards Branch awarded a group of digital animators who worked on the Sausage party movie overtime pay, as a result of a finding that they did not meet the overtime exempt definition of high tech professionals. See ER#426308 | |||
==== e) Silviculture (Reforestation) Workers ==== | ==== e) Silviculture (Reforestation) Workers ==== | ||
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== C. Termination of Employment == | == C. Termination of Employment == | ||
At common law, employers can | At common law, employers can dismiss an employee at any time without cause, on provision of reasonable advance notice or pay in lieu thereof. In rare circumstances, employers can dismiss an employee for just cause, if the employee is guilty of serious misconduct. | ||
In practice, dismissals are normally without cause. In without cause dismissal scenarios, employees are entitled to notice of dismissal, or pay in lieu of such notice, under both the ESA and common law (unless the employee’s contract validly restricts the employee to only the ESA minimum severance). | |||
Non-unionized, federally regulated employees, as covered by the CLC, are subject to different laws concerning dismissal without cause. See sections 240-246 of the CLC. Also see | Non-unionized, federally regulated employees, as covered by the CLC, are subject to different laws concerning dismissal without cause. See sections 240-246 of the CLC. Also see Wilson v Atomic Energy of Canada, 2016 SCC 29. | ||
The ESA (or the CLC for federally regulated employees) provides statutory minimums for notice, or pay in lieu, if an employee is dismissed from their employment. The maximum an employee | The ESA (or the CLC for federally regulated employees) provides statutory minimums for notice, or pay in lieu, if an employee is dismissed from their employment. The maximum an employee can receive under the ESA is 8 weeks of notice or pay. | ||
In addition, employees are entitled to a reasonable notice of dismissal at common law, or pay in lieu of such reasonable notice. The amount of reasonable notice, or pay in lieu, should be sufficient to allow the employee to find comparable employment, based on the employee’s age, length of service, and the nature of the employee’s position. | In addition, employees are entitled to a reasonable notice of dismissal at common law, or pay in lieu of such reasonable notice. The amount of reasonable notice, or pay in lieu, should be sufficient to allow the employee to find comparable employment, based on the employee’s age, length of service, and the nature of the employee’s position. | ||
The entitlement to notice at common law is a contractual entitlement. All employees have | The entitlement to notice at common law is a contractual entitlement. All employees have an employment contract, even if there is no written contract. Employment contracts can be written, oral, or a combination of both written and oral terms. | ||
By default, there is an implied term in indefinite hire employment contracts that employers will provide employees with a reasonable notice of termination if they dismiss the employee without cause. | By default, there is an implied term in indefinite hire employment contracts (either oral or written contracts) that employers will provide employees with a reasonable notice of termination if they dismiss the employee without cause. | ||
Written employment contracts may contain a termination provision that sets out how much notice the employee will receive if the employer terminates the employee without cause. In order to rebut the presumption of reasonable notice and limit an employee’s common law severance entitlement, termination clauses in employment contracts have to be clear, unambiguous, and have to meet at least the minimum ESA entitlements. | |||
If the employer fails to give the employee reasonable notice or pay in lieu, this would constitute a breach of the employment contract by the employer, and the employee could sue the employer in Small Claims Court, the Civil Resolution Tribunal, or BC Supreme Court. This is commonly called a wrongful dismissal claim. | If the employer fails to give the employee reasonable notice or pay in lieu, this would constitute a breach of the employment contract by the employer, and the employee could sue the employer for a severance in Small Claims Court, the Civil Resolution Tribunal, or BC Supreme Court. This is commonly called a wrongful dismissal claim. | ||
Generally, the notice periods recognized at common law tend to be larger awards than the statutory minimum. | Generally, the notice periods recognized at common law tend to be larger awards than the statutory minimum. | ||
There are many potential issues involved if an employee is terminated. The below checklist and the information in this section of the chapter merely provide a starting point for further legal research. | There are many potential issues involved if an employee is terminated. The below checklist and the information in this section of the chapter merely provide a starting point for further legal research. | ||
=== 1. Termination of Employment Checklist === | === 1. Termination of Employment Checklist === | ||