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Questions and Answers
Which of the following characteristics are considered protected under discrimination in hiring laws?
What does the principle of equal pay for equal work require in Alberta and BC?
Which of the following is NOT a factor in establishing discrimination in hiring?
Which example best demonstrates hiring discrimination based on sex according to the prima facie discrimination test?
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Which factor should NOT influence hiring decisions according to anti-discrimination legislation?
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What is the purpose of including an independent legal advice clause in an employment contract?
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What does a severability clause in a contract ensure?
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What constitutes a lack of consideration in contract law?
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What might result from a significant inequality of bargaining power in contract negotiations?
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How can an employer help mitigate the risks associated with unequal bargaining power?
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What is the implied duty to maintain confidentiality in employment contracts?
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What should employers include in contracts to address the opportunity for independent legal advice?
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What constitutes a poisoned work environment?
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What type of liability holds employers accountable for discriminatory actions by their agents and employees?
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What is the legal standard for determining if harassment has occurred?
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What are employers legally responsible for promoting in the workplace?
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When investigating harassment complaints, what should not be done?
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What is the primary focus of the Occupational Health and Safety (OHS) Act?
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In the context of an investigation, why is it important to document the investigation process?
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What should be ensured when interviewing witnesses in an investigation?
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How should employers handle accusations during an investigation?
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Which of the following best describes the Workers’ Compensation Act?
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Why is it important to keep an open mind during an investigation?
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What is one of the key rights of workers under the OHS Code?
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What is a general duty of the employer according to the OHS Code?
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Which action is NOT required of employers under the OHS Act?
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What should workers do if they notice defective equipment?
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Why is it important for employers to cooperate with workplace health and safety officers?
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What should workers refrain from doing to ensure workplace safety?
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What is one responsibility of an employer concerning training for workers?
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What is necessary for an offer to become a binding contract?
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Which is NOT a documented element typically included in an employment contract?
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What advantage does a well-drafted written contract provide?
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What does 'reasonable notice' refer to in the context of employment contracts?
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What constitutes the minimum qualifying employment duration for maternity leave in Alberta?
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What makes a job description essential for recruitment purposes?
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What are the criteria for a workplace policy to be regarded as a BFOR?
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What should be avoided when advertising a job?
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What is prohibited by the Alberta Act regarding job advertisements?
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Which of the following is NOT a requirement for a job description?
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What must an employer demonstrate if an individual cannot be accommodated without undue hardship?
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Which factor is essential in determining if a job requirement is a BFOR?
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Match the following types of legislation with their descriptions:
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Match the following clauses or concepts with their descriptions:
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Match the following terms with their relevance in contract law:
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A termination notice is required if the contract is for a fixed term and employment ends at the end of the term.
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Restrictive covenants only apply during the employment relationship and not after it has ended.
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If a restrictive covenant does not protect a legitimate proprietary interest, it may be unenforceable.
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Non-compete agreements can generally be enforced without any conditions.
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Employees have the right to be free from reprisals during statutory leaves.
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Systemic discrimination involves policies that appear neutral but can lead to discriminatory outcomes.
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All complaints regarding discrimination must be resolved by ES Officers through judicial action.
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No termination notice is required if a contract is for a fixed term and employment ends at the end of the term.
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Restrictive covenants prevent employees from competing with their employer only during employment.
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All restrictive covenants are automatically valid under any circumstances.
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The golden parachute is a clause that protects employees during layoffs by providing them with additional benefits.
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An implied duty to maintain confidentiality exists in written employment contracts.
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Inequality of bargaining power can lead to unconscionable contract terms in employment agreements.
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Match the following types of contractual obligations with their descriptions:
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Match the following key terms found in an employment contract with their definitions:
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Match the following clauses with their potential impact on employment contracts:
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Match the following practices with their relevance in customizing employment contracts:
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Match the following types of contracts with their characteristics:
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Match the following terms related to pay and employment equity with their descriptions:
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Study Notes
Independent Legal Advice
- Employee should have adequate time to seek independent legal advice before signing an employment contract. This is crucial for individuals who are not legally savvy.
- It is vital to offer opportunities for independent legal advice when contracts contain clauses limiting employee rights, like termination clauses.
Severability Clause
- This clause outlines that if a court invalidates a specific provision in the contract, it won't affect the validity of the rest of the agreement.
Golden Parachute
- A type of contract specific to executives, that provides additional benefits.
- These benefits are meant to incentivize the executive to act in the best interests of the employer, even during significant transitions, without distractions from personal interests.
Lack of Consideration
- "Consideration" in legal terminology refers to something of value exchanged for a promise. If this exchange doesn't occur, the promise is considered gratuitous.
- This principle is demonstrated in court cases like ASM Corrosion Control Ltd v George and Watson v Moore Corp.
Inequality of Bargaining Power
- Courts consider contracts with harsh terms to be unconscionable and may result from an employer’s dominant position and undue pressure.
- Employers should seek reasonable balance in contract terms, give candidates ample time to review draft contracts before signing, and encourage independent legal advice where applicable.
- Employers must provide explicit reference to opportunities for independent legal advice within the contract and explain significant terms, allowing candidates to initial them.
Discrimination in Hiring
- The Morrison v AdvoCare case involved a male care aide denied employment twice.
- This case exemplified how refusal to hire based on sex can be considered discrimination.
Overview of Legislation: Equal Pay for Equal Work
- The law mandates equal pay for work that is the same or substantially similar, regardless of gender.
- This equality does not mean reducing the higher-paid employee's salary to achieve equal pay.
Issues During the Course of Employment: Types of Harassment
- A poisoned work environment occurs when actions or comments, though not directly targeted, make the workplace hostile and unwelcoming.
- Sexual harassment involves unwelcome comments or actions based on sex that are considered offensive or should be reasonably known to be unwelcome.
- Generally, a course of vexatious conduct is required, but a single instance can also be considered harassment if it's particularly serious.
- "Sexting" outside work hours can create a hostile work environment and should be avoided.
- Sexual solicitation involves someone in a position of authority using their influence to make unwelcome advances or requests for sexual favors, often involving threats of reprisal or promises of reward.
Legal Standard for Determining Harassment
- Whether conduct or comments are inappropriate is determined by whether a reasonable person would find them offensive.
- The person experiencing harassment has a responsibility to inform the harasser that their behavior is unwelcome.
- Employers have a legal obligation to create a harassment-free workplace. This includes establishing clear policies, providing educational programs, and ensuring impartial investigation procedures.
Employer Liability for Human Rights Violations
- Employers are held vicariously liable for discriminatory actions of their employees or agents in the workplace.
- They are also directly liable for discriminatory actions of management.
- While employers are liable for workplace harassment by managers, they might avoid liability for non-managerial harassment if they can prove they were unaware of it, exercised diligence in preventing it, and responded appropriately once alerted.
Investigating Harassment Complaints
- Harassment complaints should be investigated in a timely manner by impartial investigators.
- The accused should be given a chance to respond to the allegations, and witnesses must be interviewed separately. Leading questions should be avoided.
- The employer’s policies and procedures should be adhered to throughout the investigation, and the process should be documented thoroughly.
- Third-party witnesses should be interviewed.
- The investigator must remain open-minded and consider the entire context of the situation.
The Legislation
- The Occupational Health and Safety Code (2009) promotes a safe and healthy workplace, preventing work-related accidents and diseases.
- The Workers' Compensation Act (WCA) handles compensation and rehabilitation for workers who are injured or contract a work-related disease.
The Purpose of Health and Safety Legislation
- The OHS Act focuses on workplace safety and prevention of accidents and diseases.
- Workplace parties share responsibility for creating a safe environment.
- The OHS Act establishes a framework outlining general rights and responsibilities for workplace safety.
- Failure to comply with the act results in fines up to $500,000 and/or imprisonment for a first offense.
Occupational Health and Safety Provisions
- Specific industries and hazards are subject to additional safety regulations.
- The OHS Act applies to everyone in the workplace, not just employees.
- Workers have fundamental rights under the OHS Act and Code.
- The Ministry of Human Services administers the Act.
Workers' Rights Under the Code
- Workers have three key rights: participation in the health and safety process, refusing unsafe work, and being informed about workplace hazards.
- The Joint Health and Safety Committee (JHSC) facilitates worker participation.
Duties of the Employer
- Employers have the general duty to take reasonable steps to protect the health and safety of their employees and other workers present.
- Employers are responsible for informing workers about their rights and obligations under the act and regulations.
- They must establish comprehensive occupational health and safety policies and programs in compliance with regulations.
- Employers must provide and maintain in good condition protective equipment, devices, and clothing, ensuring their proper use.
- Workers should be informed of workplace hazards through training, education, and supervision.
- Employers must cooperate with health and safety officers and avoid employing underage workers.
- Accurate records of biological, chemical, or physical agents must be kept in compliance with regulations.
- Accident, injury, or illness reports are required by employers.
Workers’ Duties
- Workers have the duty to comply with the OH&S Act and regulations.
- They must use and wear required equipment, protective devices, and clothing.
- Workers are obligated to report any missing or defective equipment or devices that could pose a danger.
- They must report any known workplace hazard.
- Horseplay or conduct that could endanger workers is prohibited.
- Workers must ensure their performance is not impaired by alcohol, drugs, or other factors that risk their safety and that of others.
Independent Legal Advice
- Employees should have ample time and opportunity to seek independent legal advice before signing contracts, especially when the contract contains clauses limiting their rights.
Severability Clause
- A clause that states that if one provision of the contract is invalidated by a court, the remaining provisions remain valid.
Golden Parachute
- Executive employment contracts that include additional benefits to encourage executives to act in the company's interests during periods of significant transition, without being distracted by personal interests.
Enforceability and Interpretation of Written Employment Contracts
- Lack of consideration: Contractual promises must be supported by something of value given in exchange. Otherwise, it's a gratuitous promise and may not be legally enforceable.
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Inequality of bargaining power: Courts may find contract terms unconscionable if the employer's dominant bargaining position leads to undue pressure on the employee. To prevent this, employers should:
- Seek reasonable balance in contract terms.
- Give job candidates time to review the contract and obtain independent legal advice when appropriate.
- Expressly refer to the opportunity for independent legal advice in the contract.
- Explain major terms and have the candidate initial them.
Pay Equity
- In Ontario and Quebec, employers must compare different jobs to determine if they are equal in value.
Employment Equity
- Legislation that requires employers in the federal sector to address underrepresentation of certain groups of people (usually visible minorities) through planned hiring.
Discrimination
- When a "refusal, limitation, specification or preference" is based on a bona fide occupational requirement (BFOR), it may be allowed.
- An alleged contravention of human rights legislation may be "reasonable and justifiable in the circumstances" and therefore allowed.
- Provinces may have special exemptions to discrimination legislation:
- Alberta: Exemptions on the grounds of age and marital status for pension plans and insurance.
- British Columbia: Exemptions for organizational membership if the organization is non-profit and aims to promote the interests of an identifiable group.
Making a Human Rights Complaint
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Time limits:
- Alberta: 1 year from incident
- British Columbia: 6 months from incident
- The complaint is reviewed for completeness, jurisdiction, and initial merit.
- The respondent is given time to respond to the allegations. If no response, the complaint proceeds to review and orders may be made against the respondent.
- Settlement attempts may be made, and investigations may occur in Alberta.
- The case is heard by a human rights tribunal.
Human Rights Remedies
- Cease the discriminatory policy or behaviour.
- Refrain from engaging in the same acts in the future.
- Award the complainant opportunities or privileges that were lost because of the discrimination.
- Compensate the complainant for lost wages, income, or expenses.
- Take any other action the tribunal considers proper to put the complainant in the position they would have been in but for the discrimination.
Fulfilling the Duty to Accommodate Substance Abuse
- Substance abuse is considered a disability.
- Purely recreational use of drugs or alcohol is not a disability.
- Accommodation usually involves offering rehabilitation or time off to attend a program.
- Employers are not required to accept ongoing, lengthy absences unrelated to rehabilitation.
- Employers must be consistent in enforcing policies regarding substance abuse.
- "Last chance agreements" can be used in certain situations.
Fulfilling the Duty to Accommodate Religious Beliefs
- Employers must accommodate religious beliefs and practices, subject to limitations.
- Dress codes: Employers must accommodate religious dress requirements, unless it poses a health or safety risk or substantially disrupts the workplace.
- Religious days off: Employers must accommodate employees' requests for religious days off, unless it poses an undue hardship.
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Work schedules: Employers must accommodate employee requests for modification of work schedules for religious reasons.
- Central Alberta Dairy Pool case
- Roosma case
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Break policies: Employees must be allowed breaks for religious observance.
- Friesen v Fisher Bay Seafood: The court ruled that a requirement that employees refrain from preaching during work hours may be a BFOR.
Fulfilling the Duty to Accommodate Pregnancy and Family Status
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Pregnancy: Employers must accommodate pregnant employees, including:
- Temporary relocation
- Modified duties
- Flexible work schedules and break times
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Family status: Employers have a duty to accommodate employees' family status, including:
- Providing reasonable accommodations to allow employees to fulfill their family responsibilities.
- Health Sciences Association of BC v Campbell River: This case established legal tests for discrimination based on family status.
- Canada v Johnstone: This case further clarified the legal tests for discrimination based on family status.
- Devaney v SRV Holdings: This case addressed whether the duty to accommodate family status includes eldercare.
Fulfilling the Duty to Accommodate Age
- Social and legal shift: Attitudes about age discrimination have shifted to recognize that older workers may need to work for social or financial reasons and make valuable contributions.
- Previous cases: Previously, age discrimination was sometimes justified for economic reasons and to ensure workforce "renewal".
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Mandatory retirement:
- Douglas/Kwantlen Faculty Association v Douglas College
- Dickason v University of Alberta
- 2008 BC Code: The BC Code was amended to prohibit mandatory retirement.
- Association of Justices of Peace of Ontario v Ontario: The court ruled that mandatory retirement does not meet the Charter's minimal impairment test.
On-the-Job Drug and Alcohol Testing
- Pre-employment testing: Prohibited.
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On-the-job selective testing: May be carried out in certain circumstances:
- Reasonable suspicion of impairment
- Employee involved in a workplace accident or incident
- As part of an agreed rehabilitation or return-to-work plan
- Employee works for a trucking company operating in the United States, where compliance with American law is required.
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Universal random testing: May be carried out in circumstances where:
- Evidence of reasonable cause or necessity exists (rampant drug/alcohol use).
- The workplace is extremely dangerous (e.g., nuclear power facility).
- Positive test result: Sanctions should be tailored to the circumstances (no automatic termination).
Harassment
- In Alberta and British Columbia, harassment is prohibited if it is associated with a protected ground.
- The Act prohibits public displays likely to expose a person or class of persons to hatred or contempt.
- Examples of prohibited harassing behaviours:
- Verbal or physical abuse
- Threats, derogatory remarks, jokes, innuendo, or taunts
- Display of pornographic, racist, or offensive images
- Practical jokes that result in awkwardness or embarrassment
- Unwelcome invitations or requests (explicit or implied)
- Intimidation, leering, or other objectionable gestures
- Condescension or paternalism that undermines self-confidence
- Unwanted physical contact
Occupational Health and Safety Act (Alberta)
- The Act requires employers to take specific actions following a serious accident:
- Arrange for medical assistance for the injured worker
- Lock out the machinery or equipment
- Secure the accident site
- Notify:
- The Director of Inspection (Public Service Act)
- The Joint Health and Safety Committee (JHSC) or a health and safety representative
- The employer's lawyer
Accident Investigation
- Employers must conduct a separate management investigation in addition to the investigation by the Ministry inspector.
- Actions to take:
- Ensure the investigation begins as soon as possible after the injured worker receives medical treatment.
- Prepare and file the requisite information for the Workers' Compensation Board (WCB).
- Obtain a statement from the injured worker, if possible.
- Take photographs and, if relevant, samples of any hazardous materials, and examine the equipment or tools involved.
- Interview all potential witnesses, including questions about steps taken to prevent the accident.
- Ensure all interviews are witnessed by a third party.
- Prepare witness statements and have them signed by the witnesses.
- Do not tamper with the site of the accident.
- Develop and implement a remedial action plan identifying and addressing the root cause(s) of the accident.
Fixed Term Contracts
- No termination notice required if the contract is for a fixed term, and employment ends at the end of the term
- Subject to Employment Standards legislation
Termination Clause
- It is helpful to define a termination clause in your contract upfront
- The clause can set out the method for payment of termination pay
- The clause may include a notice of resignation requirement
- This is particularly helpful for more senior and difficult roles to fill
- The clause can define just cause for dismissal without notice
Probationary Period
- This allows employers to assess the suitability of an employee for the role
- The employer has a lower burden to end the relationship if the employee is deemed unsuitable
- It is not implied by common law and must be specified in the contract
Relocation
- If relocation is an expectation of employment, it should be defined in the contract
Benefits
- Benefits should be clearly defined
- This should include how vacation time is determined
- It should also include any use of company vehicles, and reimbursement for use of personal vehicles
Restrictive Covenants
- This is an express term of employment
- It is an agreement preventing employees, current or former, from:
- Exploiting an employer's client relationships
- Sharing trade secrets, confidential information, or goodwill
- Competing with the employer
- Restrictive covenants apply during employment and after the employment relationship has ended
- Restrictive covenants are void as a restraint of trade unless certain conditions are met:
- The restrictive covenant must protect a legitimate proprietary interest of the employer
- The interest must be firm-specific, not general expertise and skills
Employee Rights During Statutory Leaves
- Employees have the right to reinstatement
- Employees have the right to salary plus increases
- Employees have the right to retain benefits
- Employees have the right to vacation entitlement
- Employees have the right to be free from reprisals
- Employees have the right to accrue seniority
Administration and Enforcement
- Complaints begin with a complaint filed with Employment Standards (ES)
- All parties are encouraged to resolve issues between themselves
- ES officers may mediate
- If an investigation is warranted, the officer may escalate the complaint to the director
- The director has the power to investigate, impose remedies, and/or penalties
- If the director finds a contravention, they will issue orders to the employer
- If no contravention is found, the employee may appeal
- Penalties include:
- Up to $100,000 for a corporation
- Up to $50,000 for an individual
Discrimination
- Discrimination doesn't need to be intentional, the result is what matters
- The legal test for discrimination includes:
- The complainant must have a characteristic protected by the legislation
- The complainant must have experienced an adverse impact related to their employment
- The protected characteristic must have been a factor in the adverse impact
- Systemic discrimination can be the result of policies and practices that appear neutral but have discriminatory effects
Overview of Legislation: Areas Covered
- Publications and notices
- Goods and property, services, accommodation (housing and facilities)
- Tenancies
- Employment practices, including equal pay and advertisements
- Membership in trade unions and occupational associations
Overview of Legislation: Protected Grounds
- Alberta: Race, religious beliefs, colour
- BC: Race, religion, colour
Substance Abuse
- Substance abuse is a disability
- Purely recreational use of drugs or alcohol is not a disability
- Accommodation for substance abuse usually means offering rehabilitation, or time off to attend a program
- Employers are not required to accept ongoing, lengthy absences unrelated to rehabilitation
- Employers should be consistent and persistent
- Condoning substance abuse is a cause for dismissal
- Last chance agreements are a common practice
Religious Beliefs
- Employers must accommodate religious beliefs
- This can include dress codes and religious days off
- Employers may need to modify work schedules
- Break policies must be flexible to account for religious practices
Pregnancy and Family Status
- Employers have a duty to accommodate pregnancy
- This can include temporary relocation, modified duties, flexible work schedules, and break times
- Employers have a duty to accommodate family status
- This can include eldercare
Age
- There has been a social and legal shift in attitude about age discrimination
- There is a need to provide opportunities for older workers, who may need to work for social or financial reasons, or are making valuable contributions
- Age discrimination has been previously justified based on economic reasons and workforce renewal
- This includes cases on mandatory retirement
- BC's 2008 Code amendment prohibits mandatory retirement
Occupational Health and Safety Act (OHS)
- Workers have core rights under the OHS Act and Code
- The Act is administered by the Ministry of Human Services
- Workers have three key rights:
- To participate in the health and safety process, through the JHSC
- To refuse unsafe work
- To know about workplace hazards
Employer Duties Under the OHS Act
- Employers must have a general duty to protect the health and safety of their workers and other workers present at the workplace
- Employers must ensure workers are aware of their rights and duties under the OHS Act and regulations
- Employers must establish occupational health and safety policies and programs in compliance with regulations
- Employers must provide and maintain protective equipment and ensure its use
- Employers must provide training and information to ensure worker safety
- Employers must co-operate with workplace health and safety officers
- Employers must refuse to employ underage workers
- Employers must keep accurate records of biological, chemical, or physical agents
- Employers must report accidents, injuries, or illnesses
Worker Duties Under the OHS Act
- Workers must comply with OHS Act and regulations
- Workers must use all protective equipment
- Workers must report missing or defective equipment
- Workers must report any known workplace hazard
- Workers must refuse to engage in horseplay or similar conduct
- Workers must ensure their ability to work is not impaired by alcohol, drugs, or other causes
Worker Coverage Under WCB
- Virtually every industry is covered
- Workers' Compensation (WCB) insures against workplace injuries and diseases, not non-occupational injuries or illnesses
- Certain workers, including independent contractors, sole proprietors, and executive officers may opt into the system, but it is not mandatory
Case For Discussion
- Anonymous v. Anonymous (2001) involved whether workplace stress was caused by the workplace
- Alberta (Workers' Compensation Board) v. Alberta (Workers' Compensation Board, Appeals Commission) (2005) involved the definition of "worker," employee, and the scope of WCB coverage
Claims Management
- Employers must establish procedures for investigating workplace injuries and train managers in these procedures
- Employers must document all claims, even minor ones
Employment Contracts
- No termination notice is required for fixed-term contracts when employment ends at the end of the term (subject to Employment Standards).
- Termination clauses should be included to outline methods for payment of termination pay.
- Termination clauses can include notice of resignation requirements which are useful for senior roles.
- Termination clauses should set out just cause for dismissal without notice.
- Probationary periods are used to asses an employee's suitability for a role.
- Probationary periods are not implied in common law and must be specified in the contract.
- Relocation clauses should address issues such as cost and relocation assistance.
- Benefits clauses should be specific regarding vacation time, use of company vehicles, and reimbursements for use of personal vehicles.
- Restrictive covenants are used to protect employer's proprietary interests and prevent employees from exploiting confidential information or competing with the employer.
- Restrictive covenants apply during employment and after the relationship ends.
- Restrictive covenants are only enforceable if they protect a legitimate proprietary interest and the employee has received independent legal advice.
- Independent legal advice clauses are particularly important for employees who may not be familiar with contract law.
- A severability clause ensures the remaining parts of an agreement remain valid if a certain provision is deemed invalid.
- Golden Parachute clauses are included in executive employment contracts to incentivize executives to act in the best interest of the employer during transitions.
- Implied Duty to Maintain Confidentiality is assumed to be present in all employment relationships.
Enforceability and Interpretation of Employment Contracts
- Lack of consideration can render an employment contract unenforceable, meaning that there is no value exchanged for the promises made in the contract.
- Inequality of bargaining power can result in harsh contract terms that are deemed unconscionable by courts. Employers must seek reasonable balance in contract terms and provide employees with the opportunity to review the contract and seek independent legal advice.
- Contract revisions should be conducted regularly to ensure the terms accurately reflect the employee's current role and responsibilities.
- Contract terms must meet or exceed minimum statutory standards, including termination notice requirements outlined in Employment Standards.
- If contract terms fall below statutory standards, they are unenforceable and the employer is liable for full common law reasonable notice.
- The "contra proferentem" rule states that any ambiguities in a contract will be interpreted against the drafter (typically the employer).
The Employment Standards Act
- Sets out minimum terms and conditions of work.
- Establishes minimum requirements for termination notice and pay.
- Applies to almost 90% of employees in Alberta, but coverage is not universal.
- Cannot be overridden by employment or collective agreements.
- Unionized employees are covered, but most significant benefits are covered by the collective agreement.
- If an employer promises a greater right or benefit, it will be enforced as long as it pertains to a specific benefit under the Act.
- Enforcement is complaint-based.
- Binds employers regardless of size.
Leaves of Absence
- Parental leave provides both parents with an additional 37 consecutive weeks of leave within 53 weeks after birth or adoption placement.
- Parental Leave is not paid by the employer but employees may be able to claim benefits under the Employment Insurance Act.
- Employees must provide 4 weeks notice prior to returning from leave.
- Employers cannot terminate or lay off an employee during leave, unless the business is discontinued.
- Reservist Leave for members of the Canadian Armed Forces requires 26 consecutive weeks of employment to qualify.
- Reservist leave provides unpaid, job-protected leave for deployment and up to 20 days per year for annual training.
- Employees must provide 4 weeks notice for reservist leave.
- Employers cannot terminate an employee on leave and must reinstate them to their previous position or a comparable role.
- Compassionate Care Leave provides up to 27 weeks of unpaid, job-protected leave for primary caregivers of ill family members.
- Compassionate Care Leave requires a certificate from a qualified health practitioner and 90+ days of employment to qualify.
- Compassionate Care Leave dovetails with EI compassionate care benefits.
- Employers cannot terminate an employee on compassionate leave and must reinstate them to their previous position or a comparable role.
- Other leaves of absence include: Disappearance of child leave, Critical illness of a child leave, Long-Term Illness and Injury leave, Domestic Violence Leave, Personal and Family Responsibility Leave and Bereavement Leave.
Workers' Rights Under the OHS Act and Code
- Workers have core rights outlined in the OHS Act and Code.
- The Ministry of Human Services administers the OHS Act.
- Workers have the right to participate in the health and safety process, refuse unsafe work and know about workplace hazards.
Duties of the Employer
- Employers have a general duty to take all reasonable precautions to protect the health and safety of their workers and other workers present at a workplace.
- Employers must ensure workers understand their rights and duties under the OHS Act and Regulations.
- Employers must establish health and safety policies and programs in compliance with regulations.
- Employers must provide and maintain protective equipment and ensure it is used.
- Employers must provide workers with information, training and supervision required to ensure their safety.
- Employers must cooperate with workplace health and safety officers.
- Employers are prohibited from employing underage workers.
- Employers must keep accurate records of biological, chemical, or physical agents as required by regulations.
- Employers must report accidents, injuries, and illnesses.
Workers' Duties
- Workers must comply with OHS statutes and regulations.
- Workers must use or wear protective equipment, devices, or clothing as required by the regulations.
- Workers must report missing or defective equipment or protective devices.
- Workers must report known workplace hazards.
- Workers must refrain from any horseplay or conduct that could endanger themselves or others.
- Workers must ensure that their ability to work safely is not impaired by alcohol, drugs or other causes.
Express Contractual Obligations
- When contract obligations are clearly stated, courts typically enforce them literally.
- If a contractual clause is one-sided and burdens the employee, courts may interpret it against the dominant party.
- Extremely unbalanced terms may result in a contract being considered void due to unconscionability or duress.
- Ambiguous terms can be interpreted using extrinsic evidence, such as past practices.
Implied Contractual Obligations
- The most fundamental obligations of employees towards employers are often unstated in contracts.
- These obligations can be derived from various sources such as oral agreements, written agreements, or both.
- They represent the unexpressed, factual intentions of both parties, as evidenced by surrounding circumstances.
- Examples include an employee's duty of loyalty to their employer.
Common Contractual Terms
- Employment contracts should be customized to suit the specific needs of each employee rather than using a standardized template.
- Most jobs include key terms in a letter of hire or final contract, which may incorporate the employer's policy manuals.
- Key terms generally include names of parties, contract start date, job title, job description, contract duration, compensation, and termination notice.
- More senior or specialized roles may require a more formal, tailored contract.
Common Contractual Terms (cont'd)
- Job descriptions are a key component of employment contracts.
- Remuneration details are essential.
- The duration of the contract is important: is it fixed or indefinite?
- Pay equity, ensuring different jobs are paid fairly based on their value, is mandated in Ontario and Quebec.
- Employment Equity legislation, aiming to address underrepresentation of specific groups, is in place in the federal sector.
Overview of the Legislation: Where Discrimination is Allowed
- It's legal to refuse or restrict employment based on a bona fide occupational requirement (BFOR), where a characteristic is essential for job performance.
- Actions that contravene the law may be deemed acceptable if considered reasonable and justifiable under the circumstances.
- Specific exemptions exist in some provinces, like Alberta, for certain categories (e.g., age and marital status for pension plans).
- BC has exemptions related to membership requirements in non-profit organizations that serve specific groups.
Overview of the Legislation: Making a Complaint
- Individuals must file a complaint within a specified timeframe (e.g., 1 year in Alberta, 6 months in BC).
- The submitted complaint undergoes a review process for completeness, jurisdiction, and initial merit.
- The respondent receives a copy of the complaint and a deadline to respond.
- If there is no response, the complaint proceeds to review and orders might be issued against the respondent.
- Settlement attempts are common, and investigations may be conducted in jurisdictions like Alberta.
- Ultimately, the case is heard by a human rights tribunal.
Overview of the Legislation: Remedies
- The tribunal can order various remedies, including:
- Stopping the discriminatory policy or behavior.
- Preventing future engagement in similar acts.
- Providing opportunities or privileges lost due to discrimination.
- Compensating the individual for lost wages, income, or expenses.
- Taking other actions deemed necessary to restore the individual to the position they would have been in without discrimination.
Issues During the Course of Employment: Duty to Accommodate
- Fundamental principles of accommodation in human rights law include:
- Individualization: Accommodations cater to individual needs.
- Dignity: Accommodations should maintain a person's self-esteem.
- Inclusivity: Accommodations strive to integrate individuals into the workplace.
- Accommodation is a shared responsibility.
- Employer: Makes reasonable adjustments.
- Employee: Cooperates in the process.
- Union: Assists in finding solutions.
Issues During the Course of Employment: What is “Undue Hardship”?
- Undue hardship, not explicitly defined, arises when accommodation imposes unreasonable burdens on an employer.
- Factors considered:
- Financial cost: The financial impact on the employer.
- Size and resources of employer: Employer's size and ability to manage the burden.
- Disruption of operations: The impact on ongoing business operations.
- Morale problems of other employees: potential employee morale issues caused by accommodation.
- Substantial interference with rights of other individuals or groups: Impact on others in the workplace or in society.
- Interchangeability of workforce and facilities: Whether other workers or facilities could be used without creating undue hardship.
- Health and safety concerns: Risks to health or safety of others.
Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability
- Employers should gather medical information regarding the employee's functional abilities, with their consent.
- Consultation with the employee, supervisor, and union is vital.
- Efforts should be made to modify the employee's current job duties if possible. If not, other job options must be considered.
- The undue hardship of potential accommodations must be evaluated.
- Accommodation measures are implemented and monitored regularly.
- All aspects of the accommodation process are documented, including:
- Alternatives considered: Any alternative solutions explored.
- Reasons the alternatives were not accepted: Why these alternatives were not adopted.
- Confidentiality should be maintained throughout the process.
Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability (cont'd)
- Important legal cases:
- Essex Police Services Board v Essex Police Association: This case explored whether an employer must create a new position based on the reassigned duties of others to accommodate a disability.
- Jodoin v City of Calgary: This case examined how diligent an employer must be when searching for accommodation options.
Occupational Health and Safety Act
- The Alberta Occupational Health and Safety Act (OHS Act) outlines procedures for various types of workplace accidents.
- Accidents of a more serious nature are detailed in Sections 18(1) and 18(2) of the OHS Act.
Duty to Report
- Employers must immediately take the following actions after an accident:
- Arrange for medical assistance for the injured worker.
- Lock out the machinery or equipment involved in the accident.
- Secure the accident site.
- Notify relevant parties, including:
- The director of inspection, per the Public Service Act.
- The Joint Health and Safety Committee or health and safety representative.
- The employer's lawyer.
Accident Investigation (1 of 3)
- Accident investigations should begin promptly, after the injured worker receives medical attention.
- Management should conduct a separate investigation independent of the ministry inspector's investigation.
Accident Investigation (2 of 3)
- The following should be done:
- Gather a statement from the injured worker, if possible.
- Capture photos and samples of hazardous materials if relevant.
- Examine any equipment or tools involved in the accident.
- Interview all potential witnesses.
- Ensure all interviews are witnessed by a third party.
Accident Investigation (3 of 3)
- The following should be done:
- Document witness statements and obtain signed confirmation.
- Do not tamper with the accident site.
- Create and implement a remedial action plan to address the root causes of the accident.
Worker Coverage (1 of 2)
- Nearly every industry is covered by workers' compensation.
- "Industry" is defined as an "establishment, undertaking, trade or business" in the act.
- Some industries are not compulsorily covered, such as financial institutions, social clubs, broadcasting stations, and law firms.
Worker Coverage (2 of 2)
- Workers not automatically covered (e.g., independent contractors, sole proprietors, executive officers) can choose to join the system.
Who Is Eligible for WCB Benefits?
- Workers' compensation covers work-related injuries and illnesses, not non-occupational occurrences.
- The Workers' Compensation Board (WCB) outlines specific guidelines for worker eligibility.
Case for Discussion (1 of 2)
- In Anonymous v. Anonymous (2001), a case involving a worker's compensation claim, the BC Workers' Compensation Review Board determined that the claimant's injuries did not arise from a work-related incident.
Case for Discussion (2 of 2)
- In Alberta (Workers' Compensation Board) v. Alberta (2005), the Alberta Court of Queen's Bench ruled on an appeal concerning the interpretation of certain provisions of the Workers' Compensation Act, ultimately upholding the decision of the Appeals Commission.
Claims Management (1 of 2)
- Establish standardized procedures for workplace injury investigations and train managers in these processes.
- Document all claims, regardless of their severity.
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Description
Explore key concepts in employment law, including the importance of independent legal advice before signing contracts and the implications of clauses like severability and golden parachutes. Learn how lack of consideration affects contractual obligations in legal contexts.
