Chapter 4: Employment and Human Rights

Question 1

What was the Development of Employment Law traditionally based on?

Answer 1

It was traditionally based on common law of master and servant

Question 2

What is the Development of Employment Law supplemented now by?

Answer 2

• Statutes that have been passed to regulate employment relationships.
• The emergence of trade unions and collective agreements.

Question 3

The relationship of employer and employee

Answer 3

• Relationship is contractual
• An employee may also act as the employer’s agent.
• The employee must be distinguished from the independent contractor
• Employer directs and controls employee’s work

Question 4

Characteristics of independent contractor

Answer 4

• Hired to complete a task or deliver a result for a fee.
• Owns the tools necessary to do the work.
• Controls hours and time of work.
• Controls how the work is done.
• May work for others
• No tax, pension, benefit, or government deductions withheld from payment
• Invoices for work done and charges GST/HST
• Pay own expenses
• Assumes the risk of profit or loss

Question 5

What regulate the rights and obligations of an employee?

Answer 5

If the individual is an employee, rights and obligations are under employment standards and other statutes.

Question 6

Relationship of employer and employee compared to contractors?

Answer 6

• independent contractor’s rights are confined to those described in their contract
• when an independent contractor takes on a job, any liabilities incurred by the in carrying out the task are almost entirely their own, subject to the terms of the contract.
• vicarious liability is not applied to someone who hires an independent contractor.
• employee tax and pension holdbacks are also not applicable.

Question 7

What are the characteristics of dependent contractors?

Answer 7

• operate midway between employees and independent contractors.
• have their own businesses and control over the completion of their tasks, but work primarily with one client over a long period of time and therefore are economically dependent on that client.
• Under common law, dependent contractors must be given reasonable notice of termination of the relationship

Question 8

Employer’s liability: Contract

Answer 8

Employer retains liability for work performed by employees to meet employer’s contractual obligations.

Question 9

Employer’s liability: Tort

Answer 9

Employer is vicariously liable for employee’s torts committed during the course of employment, even if employer is blameless.

Question 10

Notice of Termination of Employment Contracts

Answer 10

• Generally, employees can be terminated without cause with notice.
• Length of notice comes from three places: employment standards legislation, common law, and contract.
• Employment standards legislation provides for minimum notice
• Common law requires reasonable notice or pay in lieu of notice
• Express term of contract may stipulate advance notice of termination

Question 11

Explain “employees can be terminated without notice”

Answer 11

• Where termination is not for cause, reasonable notice must be given (implied term)
• Exception: employees under federal jurisdiction and unionized employees
• Can be notice or pay in lieu of notice (i.e. severance, the money someone gets when they get fired)

Question 12

Length of notice comes from three places:

Answer 12

1. Employment standards legislation
2. Common law
3. Contract

Question 13

Explain “employment standards legislation provides for minimum notice”

Answer 13

• Cannot contract out of employment standards
• It goes up 1 week per year up to 8 weeks. If someone has been with an organization for 8 year they are entitled to 8 weeks notice, if they have been 20 years, they are entitled 8 weeks notice.

Question 14

Explain “common law requires reasonable notice or pay in lieu of notice”

Answer 14

• Essentially means, how much time does this person need to find alternative employment.
• They average last 8 week of regular work. There is a formula to determine what employees are entitle to which include averaging the last 8 weeks worked.

Question 15

Explain “express term of contract may stipulate advance notice of termination”

Answer 15

• If contrary to employment standards, will be unenforceable
• Parties can negotiate whatever they want for termination payment.

Question 16

What are Bardal Factors?

Answer 16

What should be taken to account to determine what is reasonable.

Question 17

How is reasonable notice determined at common law?

Answer 17

• length of employment: The longer they have worked for a company, the longer notice they are entitled to.
• character of employment: Is it retail where it is easy to find another job very fast, or is it more specialized job where it is harder to find a job?
• age of employee: Is someone is 50 or over, notice time goes up significantly because is harder for them to find another job.
• education or training of employee
• experience of employee: The more experience generally the less jobs. There are fewer executive positions than manager levele.
• availability of similar employment in the industry (market conditions): If it is a great labor market is it less risky for employees. If market conditions is bad then is riskier to terminate because notice period is going to be longer.

Question 18

What is the rule of thumb for reasonable notice?

Answer 18

1 month per year but to 24 months.

Question 19

Dismissal without notice (for cause)

Answer 19

• Notice is not required for dismissal with cause.
• Progressive employee discipline is now expected.
• Difficult to dismiss for cause, especially without progressive discipline.
• If the employer later discovers that there was in fact cause for dismissing the employee without notice, it could be a defense to employee’s lawsuit for wrongful dismissal, even if it becomes known after the action has started.
• Sometimes employers look for cause during notice period to get out of severance.

Question 20

What is conduct that creates cause?

Answer 20

• Misconduct (includes dishonesty)
• Disobedience
• Incompetence
• Permanent illness (could be frustration)

Question 21

Wrongful Dismissal

Answer 21

• Action arises where notice was insufficient or cause not established
• Reasonable notice depends upon all the circumstances of the employment like but not limited to: Length and nature of employment, Age of employee, and Availability of similar employment given educational and experiential background of employee
• Damages are compensation to anything the employee would have been entitled to during the notice period: Bonuses, benefits, commissions, allowances, stock options, etc.
• Damages are increased by bad faith dismissal which is a breach of utmost duty of good faith: Additional award for aggravated damages
• Punitive damages for egregious conduct: Punitive damages: this is like “manager, you acted terribly, we are going to punish you.”

Question 22

Mitigation by employee

Answer 22

• Employees have an obligation to mitigate their losses by seeking out and accepting reasonable alternative employment
• Compensation from alternative employment will reduce damages
• If employee fails to mitigate by attempting to find employment, damages will be reduced
• Can be incorporated into employment contract

Question 23

Reinstatement

Answer 23

• If someone is unionized and wrongfully dismissed then they would be rehired. But they wouldn’t otherwise.
• Not available at common law
• Common remedy under collective agreements
• Also available to non-union employees within the federal Labour Code
• Potentially available if human rights violation
• Unless it fits within specific circumstances, reinstatement is not an option.

Question 24

Constructive Dismissal

Answer 24

• Employer fundamentally changes nature of job to the extent that it becomes a breach of contract.
  Employee quits because job becomes intolerable
  Employee rejects change to job description
• Treated a wrongful dismissal

Question 25

Common forms of constructive dismissal

Answer 25

• Reduction in salary or benefits
• Change in job status or responsibility and nature of position
• Change in geographical location

Question 26

Risk management

Answer 26

• Termination provision
  Length of time
  Method of payment
• Non-competition clause
• Non-solicitation clause
• Non-disclosure and confidentiality clauses

Question 27

What is a termination provision?

Answer 27

a clause that sets out the expectations for both parties if the employee is terminated. It may tell the employee exactly what to expect from a potential severance package, or it may specify that the employee is limited to the notice and termination pay.

Question 28

What is a non-compensation clause?

Answer 28

a contract where an employee agrees not to compete with an employer after the employment period is over.

Question 29

What is a non-solicitation clause?

Answer 29

An agreement that prohibits an employee from utilizing the company’s clients, customers, and contact lists for personal gain upon leaving the company.

Question 30

What is a non-disclosure and confidentiality clause?

Answer 30

Legally enforceable agreements used to ensure that certain information will remain confidential.

Question 31

Collective bargaining

Answer 31

• The process of negotiating a contract between an employer and a bargaining agent for its employees
• Governed by labour relations legislation in a province
• New bargaining unit:
• Each bargaining unit negotiates separately

Question 32

In collective bargaining, explain “the process of negotiating a contract between an employer and a bargaining agent for its employees”

Answer 32

That bargaining agent is the union. So there is no individual employment. In a union scenario, each employee is covered by the collective agreement and is part of that collective bargaining scenario.

Question 33

In collective bargaining, explain “governed by labor relations legislation in a province”

Answer 33

• This process and framework is governed by this or federally regulated employees by federal legislation.
• What happens in a unionization process is that workers for an employer organize and become members of an already existing union. Employees will come together and seek to create a new bargaining unit.

Question 34

In collective agreement, explain “new bargaining unit”

Answer 34

• In this process, the employer may voluntarily recognize the union and agree to a collective bargaining scenario, or
• Union may apply for certification: That application process is through the labor relations program BC.

Question 35

In collective bargaining, explain “each bargaining unit negotiates separately”

Answer 35

Agreements have to be reached within a specified period of time. If not, then it could be referred to arbitration where an arbitrator will determine the terms for the agreement for the parties.

Question 36

Labor disputes

Answer 36

• Jurisdictional dispute
• Recognition dispute
• Interest dispute
• Rights dispute

Question 37

What is a jurisdictional dispute?

Answer 37

• Between unions for right to represent group of employees
• Dispute between unions with respect with who is representing that particular group of employees.
• This can arise where there are different unions that represent different trades or different specialized professions.

Question 38

What is a recognition dispute?

Answer 38

When employer refuses to recognize the union.

Question 39

What is an interest dispute?

Answer 39

• About terms of the collective agreement
  This is where the terms are being negotiated between the parties. This is where interest disputes come in. This is where strikes arise.

Question 40

What is a rights dispute?

Answer 40

• About interpretation of terms in the collective agreement
• There is a valid agreement governing the relationship between the relationship between the employees, however there is a disagreement with respect to how those terms are to be interpreted and applied.

Question 41

How are disputes reloved?

Answer 41

Disputes are resolved by the administrative board, a highly specialized bord that acts as a court.

Question 42

Strikes and lockouts

Answer 42

• Strikes and lockouts are restricted to interest disputes
• Only permitted in the context of the legislation.
• There is a process that the parties have to follow in order for those rights and abilities to crystallize.
• Only after a genuine attempt to reach an agreement

Question 43

What is the legislative regulation process? (Process parties have to follow in order to crystallize their rights and abilities)

Answer 43

1. Bargaining period
   - There is a time frame in which the parties are expected to negotiate and attempt to come to a new collective agreement.
2. Conciliation (negotiate with a assistance)
   - If the first fails then there is conciliation.
   - It is a negotiation with assistant of a mediator. They will help the parties try to negotiate terms.
3. Cooling-off period
   - If the second one fails too then cooling off period happens.
   - They walk away from the table for a bit and take a break, and possibility try to come back.

• Only after this process can there be a lock-out or strike.

Question 44

What should a strike or lock out look like?

Answer 44

• If there is a strike or lock out, pickets must be peaceful and only for purpose of obtaining/communicating information.
• They cannot be violent or intimidating in any way.

Question 45

If and employee is an employee of an employer that has a collective agreement with its workers, then:

Answer 45

• Employee cannot bargain individually with employer.
• Closed shop unions require all employees to join the union.
• Rand formula requires payment of union dues even without union membership.

Question 46

Explain “rand formula requires payment of union dues even without union membership”

Answer 46

• If there is a scenario where a worker falls within a class of employees that is covered by collective agreement, but for some reason they are not a union member, they are nonetheless required to pay union dues.
• What happens as a result of this court case is that employers are required to deduct union dues or membership fees from the employees pay and provide it to the union, which means that unions don’t have to collect individually from each employee.

Question 47

Legal status of Trade Unions

Answer 47

• Do not have separate legal identity of corporations
• Unions are legal entities before labour relations boards and courts
• Whether a union can be sued for tort depends on provincial legislation:
  BC: “Section 154 Every trade union and every employers’ organization is a legal entity for the purposes of this Code.”
  Given broad interpretation

Question 48

What does the Employee Welfare Legislation govern?

Answer 48

• Human rights
• Pay equity
• Employment equity
• General working conditions
• Employment insurance
• Workers’ compensation
• Disability accommodations (unless undue hardship for employer)
• Sexual Harassment
• Hostile Workplace

People that are terminated by cause or that quit do not get employment insurance.

Question 49

Human Right Legislation

Answer 49

• In BC, human rights in the private sphere governed by the Human Rights Code
• In public sphere, Charter of Rights and Freedoms and legislation govern
• Remedy to employee for discrimination in workplace

Question 50

What is discrimination?

Answer 50

• Differential treatment on prohibited ground:
  Race, ancestry, place of origin, colour, ethnic origin, sex, sexual orientation, disability, marital status, family status, religion.
  Additional through case law: drug and alcohol dependency, pregnancy and childbirth, and mental illness
• Discrimination can be direct or indirect

Question 51

What is direct discrimination?

Answer 51

• Differential treatment on prohibited ground

E.g. not hiring women for fear of pregnancy

Question 52

What is indirect discrimination?

Answer 52

• Differential treatment on permissible grounds
• Adverse effect due to prohibited ground
  E.g. not hiring person without driver’s licence, person lacks licence because legally blind, and license not necessary to do job

Question 53

Bona Fide Occupational Requirement

Answer 53

• Job may require otherwise discriminatory policy
• Defence of bona fide occupational requirement
  E.g. firefighting requires considerable strength, so city may be justified in rejecting some candidates

Question 54

What is Bona Fide Occupational Requirement?

Answer 54

A standard or rule that is integral to carrying out the requirements of a particular position within a workplace. For a standard to be a BFOR, an employer must establish that any accommodation or changes to that standard or rule would create an undue hardship.

Question 55

To prove discrimination, a complainant has to prove that:

Answer 55

1. they have a characteristic protected by the Human Rights Code;
2. they experienced an adverse impact with respect to an area protected by the Code; and
3. the protected characteristic was a factor in the adverse impact.

Question 56

When providing/defending discrimination, how can a respondent defend itself?

Answer 56

the respondent can defend itself by proving its conduct was justified. If the respondent proves its conduct was justified, then there is no discrimination

Question 57

Employer can justify discrimination if:

Answer 57

1. Standard is for a purpose rationally connected to the performance of a job;
2. Standard adopted in good faith believe that it was necessary: Good faith means that it was necessary. In this case, the fitness test was necessary.
3. Reasonably necessary to accomplishment of purpose such that impossible to accommodate without undue hardship (The government failed here by not being able to accommodate).

Question 58

Duty to accommodate

Answer 58

• This includes a duty to take all reasonable steps to avoid a negative effect based on a personal characteristic.
• Employer must adapt workplace to meet needs
• Risk management

Question 59

For duty to accommodate, explain “employee must adapt workplace to meet needs”

Answer 59

E.g. wheelchair access, braille signage, modified terms
- No obligation if undue hardship. “Undue hardship” is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors.
- Employer need only make reasonable accommodations

Question 60

In Duty to accommodate, what does risk management look like?

Answer 60

• Know relevant laws
• Adopt policies that satisfy human rights legislation
• Institute informal complaints procedure

Question 61

Harassment

Answer 61

• Offensive conduct connected to prohibited ground
• Focus on fact rather than intention
• Sexual harassment

Question 62

Sexual harassment

Answer 62

• Sexual gesture, advance, comment, conduct that offender knew or should have known was unwelcome
• In some Canadian jurisdictions, employer must take reasonable steps to prevent sexual harassment
• Employer may be vicariously liable

Question 63

Exceptions for discrimination part 1

Answer 63

• There are exceptions that allow certain type of organizations to discriminate. This is why Trinity is allowed to only hire Christian employees.
• The focus of those organizations has to be protective of one of those characteristics. For example Trinity cares about Christian and the Christian faith. Professors and staff have to be Christian to be able to fulfill the universities mission and goals.

Question 64

Exceptions for discrimination part 2

Answer 64

• Section 41 contains an exemption for:
  1) Organizations operating not for profit;
  2) That are charitable, philanthropic, educational, fraternal, religious or social organization in nature; and
  3) Operating for the benefit of group of persons characterized on an enumerated ground.
• Not discrimination to give preference to member of that group.