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

== F. Other 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):  

Though generally employers are prohibited from discriminating against employees, it is permitted if the discrimination is required due to a bona fide occupational requirement (ss 11, 13).   

Federal legislation allows employers to impose manadatory retirement, however, the BC provincial statute was amended in 2008 to prohibit this practice

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)).

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.  

The bullying or harassment could potentially constitute a constructive dismissal for which the employee could claim damages in court; see V.C.10: Constructive Dismissal.

Finally, if the bullying or harassment is of an extremely serious nature, such as serious sexual harassment, consider whether the behaviour might be criminal and whether the police should be contacted.

Generally, employers are not permitted to retaliate against an employee who files a statutory complaint.   

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.  

A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to  or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code (s 43). If a person is discriminated against in such a manner, they may file a complaint at the  Human Rights Tribunal in the same way that they would complain about any other discriminatory practice; see [[BC Human Rights Code (6:III)#C. The Complaint Process | Chapter 6: Human Rights, Section III.C: The Complaint Process]].  

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 as a result of a bad faith dismissal.   

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