Employment Law in Canada

The Changing Legal Emphasis

• The three pillars of changing legal emphasis are human rights (harassment, discrimination), employment equity, and employment and labour relations.

Legal Framework Balance

• The government balances employee and employer needs through employment legislation development and maintenance.
• Employers can modify employee work terms and arrangements as needed for legitimate business.
• Employees have a right to protection from harmful business practices.

Multiple Layers of Legislation

• Legislation exists in multiple layers.
• General laws supersede lower levels of legislation.
• The Canadian Charter of Rights and Freedoms guarantees basic rights to all people residing in Canada.
• Human Rights Legislation protects against discrimination in employment and service delivery.
• Employment Standards Legislation establishes minimum employment terms and conditions within each jurisdiction, such as minimum wages, work hours, and maternity leave.
• Ordinary laws are context or content-specific laws affecting workplaces, e.g., occupational health and safety.
• A collective bargaining agreement is a legally binding agreement that establishes minimum terms for unionized positions.
• An employment contract is between an individual employee and employer regarding specified employment conditions.

Who is an "Employee"?

• Defining "employee" can be complicated.
• Six factors determine if the relationship is employer-employee: control, tools and equipment, subcontracting, financial risk, investment and management, and opportunity for profit.

The Canadian Charter of Rights and Freedoms

• Additional provisions important to HRM: multicultural heritage rights, First Nations' rights, minority language education rights, the right to live and work anywhere in Canada, due process in criminal proceedings, democracy and equality rights which are the basis for human rights legislation.

Human Rights Legislation

• Human Rights Legislation is jurisdiction-specific.
• This legislation prohibits intentional and unintentional discrimination in employment and service delivery.
• Human Rights Legislation supersedes any employment contract or collective agreement terms.

Human Rights Legislation - Discrimination

• Discrimination is defined as any distinction, exclusion, or preference based on prohibited grounds that nullifies or impairs a person's right to full and equal recognition and exercise of their human rights and freedoms.
• Discrimination focuses on social identity, how we see ourselves versus others, which can lead to prejudice or stereotypes.
• Intentional discrimination is differential or unequal treatment in terms and conditions of employment based on prohibited grounds, it also includes denial of rights due to association with a protected group member.
• Unintentional or constructive/systemic discrimination is the most difficult to detect and is embedded in policies and practices that appear neutral, having adverse impacts on specific groups.
• Systemic discrimination examples include minimum height and weight requirements, internal hiring policies that do not embrace diversity, limited accessibility to company premises, culturally biased or non-job-related tests, job evaluation systems that are not gender neutral, promotions based exclusively on seniority or experience in white-male dominated firms and lack of harassment policies.
• Permissible discrimination via Bona Fide Occupational Requirement (BFOR) is permissible discrimination, there must be a justifiable reason, a legitimate work-related purpose for the role without undue employer hardship.

Human Rights Legislation - Duty to Accommodate

• Providing equal access to employment by removing physical, attitudinal, and systemic barriers.
• Demonstrating attempts to accommodate to the point of undue hardship, often at minimal cost.
• Accommodation is appropriate if it results in equal opportunity, benefits, and privileges.
• Reasonable accommodation is the adjustment of employment policies and practices so that no individual is denied benefits, disadvantaged, or prevented from carrying out their job due to grounds prohibited in human rights legislation.
• Undue hardship defines the limits of reasonable accommodation, it means: employers are only expected to accommodate under human rights legislative requirements, financial costs make accommodation impossible, and/or health and safety risks to the individual or other employees prevent accommodation.

Employer Obligations

• Employers have an obligation to be aware of the differences between individuals and groups, and build these conceptions of equality into workplace standards
• The importance of data segregation.

Human Rights Legislation - Examples

• Examples include disability, race, religion, sexual orientation, age, discrimination because of association and weight or obesity

Human Rights Legislation - Enforcement

• The human rights tribunal provides a speedy and accessible process to help parties.
• Employers must investigate discrimination claims, have an anti-discrimination/anti-harassment policy, assess complaints, launch investigations, and demonstrate reasonable resolution and communication.
• Systemic remedy ensures compliance with legislation.
• Restitutional remedy provides monetary compensation.

Harassment

• Harassment is any unwelcome behavior that demeans, humiliates, or embarrasses a person, and that a reasonable person should have known would be unwelcome.
• Forms of harassment include physical or verbal attempts to humiliate, offend, threaten, or intimidate, unwelcome invitations, requests, remarks, jokes, innuendo, unnecessary physical contact, leering, displaying pornographic/racist pictures, practical jokes and condescension undermining self-respect.
• Employers are responsible for providing a safe and healthy working environment can be charged as well as the alleged harasser.
• This includes actions and activities that may once have been tolerated, and also includes harassment by clients or customers.

Sexual Harassment

• Sexual harassment is offensive/humiliating behavior related to a person's sex, or behavior of a sexual nature that creates an intimidating, unwelcome, hostile, or offensive work environment, or that conditions a person's job or employment opportunities.
• Sexual coercion is harassment of a nature that results in direct consequences to the worker's employment status (pay, appraisal, promotion) to gain sexual favors.
• Sexual annoyance is conduct that is hostile, intimidating, or offensive with no direct link to job benefits.

Harassment Policies

• Harassment policies should include a commitment to safe and respectful work environment, state that harassment is against the law, provide information for victims to identify harassment, identify employees' rights and responsibilities, as well as employers' and managers' responsibilities, outline procedures on what to do, and penalties for retaliations.
• Harassment policies should also include guidelines for appeals, alternative options, and how the policy is monitored and adjusted .

Employment Equity

• Employment equity programs are detailed plans intended to identify and correct existing discrimination, to redress past discrimination, and achieve balanced representation of members of four designated groups within an organization.
• The Employment Equity Act applies to federally regulated industries, Crown corporations, federal organizations with 100+ employees, and other specific organizations such as the RCMP.

Inequality

• Inequality disproportionately affects women, Indigenous people, persons with disabilities, and visible minorities.
• Manifestations of inequality includes lower pay, underemployment, unemployment, occupational segregation and low-status, low-growth positions.
• Women make up 47% of the Canadian workforce, but are underrepresented in leadership and earn 89% of what men earn in the same roles.
• Reasons include not family choice, implicit association bias, systemic issues, the glass ceiling and benevolent sexism.
• Equal pay for equal work specifies that employers cannot pay male and female employees differently if they do substantially similar work. Pay differences based on merit, productivity, or seniority are permitted. The Pay Equity Act now requires proactive pay equity plans.

Indigenous People

• The Truth and Reconciliation Commission recommends actions to eliminate educational and employment gaps, provide equitable access to jobs, training, education and education for management and staff, and to focus beyond recruitment.

Persons with Disabilities

• Persons with Disabilities face mental and physical challenges, along with lower employment rates and earnings.
• Organizations and industry groups are invited to provide input on draft recommendations regarding this, under the Accessible British Columbia Act (from May to July 2024).
• It will form the basis of future accessibility regulations in BC.

Visible Minorities

• Visible Minorities: Persons (other than Indigenous peoples) who are non-Caucasian in race or non-white in color.
• This group faces unutilized knowledge, skills, and abilities, challenges transferring credentials and implicit association biases, systemic and group exclusions.

Discrimination & Harassment in Fire Services

• This field faces issues like BFOR, poisonous/toxic work environments, harassment/bullying, occupational segregation, and systemic challenges, such as pregnancy.

Employment/Labour Standards

• Federal and provincial/territorial versions present in every Canadian jurisdiction.
• These standards establish minimum employee entitlements like pay, holidays, vacations, parental, bereavement, termination notice and overtime pay.
• They specify the maximum number of work hours per day or week.
• Employment contracts may exceed the minimum standards.
• The "Principle of greater benefit applies" to employment/labour standards.

Next Week

• Chapter 4 - Job Analysis & Design
• Chapter 5 - HR Planning

Explore the changing legal emphasis in Canadian employment law, focusing on human rights, employment equity, and labor relations. Understand the balance between employer flexibility and employee protection through various legislation layers, including the Canadian Charter of Rights and Freedoms.