Chapter 2 - The Changing Legal Emphasis Compliance and Impact on Canadian Workplaces Flashcards
Right to modify employee work terms for legitimate business needs
Employer
Right to be protected from harmful business practices
Employee
Balance needs of employer and employee
Government
Federally regulated employers (federal civil service, Crown corporations and agencies, transportation, banking and communications)
Federal laws
All other employers (90% of Canadian workers)
Provincial/territorial employment laws
Basic rights for all Canadians
Canadian Charter of Rights and Freedoms
Protection from discrimination
Human Rights Legislation
Minimum terms and conditions of employment
Employment Standards Legislation
Content or context specific
Ordinary Laws
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.
Tort Law
Freedoms: freedom of conscience and religion freedom of thought, belief, expression and opinion freedom of peaceful assembly freedom of association
The Canadian Charter of Rights and Freedoms
Section 15 - right of equal protection and benefit of the law without discrimination
Equality Rights
Jurisdictions specific legislation;
Prohibits intentional and unintentional discrimination in employment situations;
Also in the delivery of goods and services.
Human Rights Legislation
“… 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.”
Discrimination
Direct
Differential or unequal treatment
Indirect (3rd party)
By association
Intentional Discrimination
Constructive or systemic discrimination;
Embedded in policies with adverse impact on specific groups
Unintentional Discrimination
Justifiable reason for discrimination;
Based on business necessity (safe and efficient operations)
e.g. vision standards for bus driver
Bona Fide Occupational Requirement (BFOR)
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
Reasonable Accommodation
Financial costs make accommodation impossible
Undue Hardship
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
Disability
“Unwelcome behaviour that demeans, humiliates or embarrasses a person and that a reasonable person should have known would be unwelcome.”
Harassment
Protect employees from harassment;
Includes harassment by clients or customers
Employer Responsibility
“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.”
Sexual Harassment
“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.”
Sexual Coercion
“Sexually related conduct that is hostile, intimidating, or offensive to the employee but has no direct link to tangible job benefits or loss thereof.”
Sexual Annoyance
To reduce liability, employers should:
- Establish sound harassment policies
- Communicate policies to all employees
- Enforce policies in a fair and consistent manner
- Take an active role in maintaining a working environment that is free of harassment
Harassment Policies
Responsibility lies with human rights commission in each jurisdiction;
Costs are borne by the commission;
Human rights tribunal resolves conflict through mediation
Remedies:
- systemic
- restitutional
Enforcement of Harassment
Based on Charter of Rights and Freedoms;
Applies to federally regulated employers only;
Promotes equality, removes employment barriers
Employment Equity Act
Underrepresentation in certain fields;
glass ceiling
Women
Concentration in low skill, low pay jobs
Aboriginals
Underrepresentation in all areas; lower pay
People with Disabilities
Underemployed
Visible Minorities
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
Employment Standards Act
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
Enforcement of Employment Standards Act
Electronic surveillance is permitted;
Employer should create written policy;
Policy should be updated regularly to stay current with technology
Internet and Email Usage Policy
Used to prevent employee theft and vandalism;
Employees must be made aware;
Not advised if reasonable alternatives exist
Video Surveillance
