Chapter 2 - The Changing Legal Emphasis Compliance and Impact on Canadian Workplaces

Question 1

Right to modify employee work terms for legitimate business needs

Answer 1

Employer

Question 2

Right to be protected from harmful business practices

Answer 2

Employee

Question 3

Balance needs of employer and employee

Answer 3

Government

Question 4

Federally regulated employers (federal civil service, Crown corporations and agencies, transportation, banking and communications)

Answer 4

Federal laws

Question 5

All other employers (90% of Canadian workers)

Answer 5

Provincial/territorial employment laws

Question 6

Basic rights for all Canadians

Answer 6

Canadian Charter of Rights and Freedoms

Question 7

Protection from discrimination

Answer 7

Human Rights Legislation

Question 8

Minimum terms and conditions of employment

Answer 8

Employment Standards Legislation

Question 9

Content or context specific

Answer 9

Ordinary Laws

Question 10

Primarily judge-based law;
Precedent and jurisprudences set by one judge through his or her assessment of a case;
Establishes how similar cases will be interpreted.

Answer 10

Tort Law

Question 11

Freedoms:
freedom of conscience and religion
freedom of thought, belief, expression and opinion
freedom of peaceful assembly
freedom of association

Answer 11

The Canadian Charter of Rights and Freedoms

Question 12

Section 15 - right of equal protection and benefit of the law without discrimination

Answer 12

Equality Rights

Question 13

Jurisdictions specific legislation;
Prohibits intentional and unintentional discrimination in employment situations;
Also in the delivery of goods and services.

Answer 13

Human Rights Legislation

Question 14

“… a distinction, exclusion or preference based on one of the prohibited grounds that has the effect of nullifying or impairing the right of a person to full and equal recognition and exercise of his or her human rights and freedoms.”

Answer 14

Discrimination

Question 15

Direct
Differential or unequal treatment
Indirect (3rd party)
By association

Answer 15

Intentional Discrimination

Question 16

Constructive or systemic discrimination;

Embedded in policies with adverse impact on specific groups

Answer 16

Unintentional Discrimination

Question 17

Justifiable reason for discrimination;
Based on business necessity (safe and efficient operations)
e.g. vision standards for bus driver

Answer 17

Bona Fide Occupational Requirement (BFOR)

Question 18

Adjustment of employment policies/practices so that no individual is denied benefits or is disadvantaged;
Based on prohibited grounds in human rights legislation
e.g. work station redesign for wheelchair

Answer 18

Reasonable Accommodation

Question 19

Financial costs make accommodation impossible

Answer 19

Undue Hardship

Question 20

Basis determined by courts

• differential treatment
• enumerated ground (protected by legislation)
• substantive sense (is burden imposed or benefit withheld?)

Accommodation

• respect dignity
• discrimination must be legally defensible
• most appropriate accommodation should be undertaken

Answer 20

Disability

Question 21

“Unwelcome behaviour that demeans, humiliates or embarrasses a person and that a reasonable person should have known would be unwelcome.”

Answer 21

Harassment

Question 22

Protect employees from harassment;

Includes harassment by clients or customers

Answer 22

Employer Responsibility

Question 23

“Offensive or humiliating behaviour that is related to a person’s sex, as well as behaviour of a sexual nature that creates an intimidating, unwelcome, hostile, or offensive work environment or that could reasonably be thought to put sexual conditions on a person’s job or employment opportunities.”

Answer 23

Sexual Harassment

Question 24

“Harassment of a sexual nature that results in some direct consequence to the worker’s employment status or some gain in or loss of tangible job benefits.”

Answer 24

Sexual Coercion

Question 25

“Sexually related conduct that is hostile, intimidating, or offensive to the employee but has no direct link to tangible job benefits or loss thereof.”

Answer 25

Sexual Annoyance

Question 26

To reduce liability, employers should:

1. Establish sound harassment policies
2. Communicate policies to all employees
3. Enforce policies in a fair and consistent manner
4. Take an active role in maintaining a working environment that is free of harassment

Answer 26

Harassment Policies

Question 27

Responsibility lies with human rights commission in each jurisdiction;
Costs are borne by the commission;
Human rights tribunal resolves conflict through mediation

Remedies:

1. systemic
2. restitutional

Answer 27

Enforcement of Harassment

Question 28

Based on Charter of Rights and Freedoms;
Applies to federally regulated employers only;
Promotes equality, removes employment barriers

Answer 28

Employment Equity Act

Question 29

Underrepresentation in certain fields;

glass ceiling

Answer 29

Women

Question 30

Concentration in low skill, low pay jobs

Answer 30

Aboriginals

Question 31

Underrepresentation in all areas; lower pay

Answer 31

People with Disabilities

Question 32

Underemployed

Answer 32

Visible Minorities

Question 33

Federal and provincial/territorial versions;
Establish minimum terms for:
1. wages, overtime pay
2. paid holidays and vacations
3. maternity/paternity leave
4. bereavement/compassionate care leave
5. termination notice

employment contracts may exceed minimums

principle of greater benefit applies

Answer 33

Employment Standards Act

Question 34

Complaints filed with ministry of labour or counterpart;
Filed complaint is settled through the ministry, not civil court;
Limitation periods for filing;
Maximum claim limit for unpaid wages

Answer 34

Enforcement of Employment Standards Act

Question 35

Electronic surveillance is permitted;
Employer should create written policy;
Policy should be updated regularly to stay current with technology

Answer 35

Internet and Email Usage Policy

Question 36

Used to prevent employee theft and vandalism;
Employees must be made aware;
Not advised if reasonable alternatives exist

Answer 36

Video Surveillance