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Questions and Answers
What must employers in Alberta provide if there is no explicit term in an employment contract after three months of employment?
What must employers in Alberta provide if there is no explicit term in an employment contract after three months of employment?
Which statement is true regarding temporary layoffs in Alberta?
Which statement is true regarding temporary layoffs in Alberta?
What happens to an employee's entitlement if a business is sold to a new owner?
What happens to an employee's entitlement if a business is sold to a new owner?
What is likely to occur if an injury is primarily attributable to the serious and wilful misconduct of a worker?
What is likely to occur if an injury is primarily attributable to the serious and wilful misconduct of a worker?
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Which of the following situations is NOT considered wilful misconduct?
Which of the following situations is NOT considered wilful misconduct?
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What must workers demonstrate for disability claims to be accepted?
What must workers demonstrate for disability claims to be accepted?
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For which of the following conditions does the worker NOT have the burden of proof for causal relationship?
For which of the following conditions does the worker NOT have the burden of proof for causal relationship?
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Which of the following is a requirement for mental stress or chronic pain claims to be considered valid?
Which of the following is a requirement for mental stress or chronic pain claims to be considered valid?
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What type of behavior constituting wilful misconduct would be most likely to disqualify a worker from WCB coverage?
What type of behavior constituting wilful misconduct would be most likely to disqualify a worker from WCB coverage?
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What is defined as 'Personal Information'?
What is defined as 'Personal Information'?
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Which legislation outlines how organizations handle personal information in Canada?
Which legislation outlines how organizations handle personal information in Canada?
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Employers can be held liable for privacy invasions if they occur during what?
Employers can be held liable for privacy invasions if they occur during what?
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The Freedom of Information and Protection of Privacy Act primarily gives individuals the right to?
The Freedom of Information and Protection of Privacy Act primarily gives individuals the right to?
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What impact has technology had on privacy concerns?
What impact has technology had on privacy concerns?
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Which of the following is NOT considered personal information?
Which of the following is NOT considered personal information?
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What is the main purpose of the Personal Information Protection and Electronic Documents Act (PIPEDA)?
What is the main purpose of the Personal Information Protection and Electronic Documents Act (PIPEDA)?
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Which of the following statements about privacy is true?
Which of the following statements about privacy is true?
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What is a key consideration for employers when terminating older employees?
What is a key consideration for employers when terminating older employees?
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Under what condition can mandatory retirement policies be permissible?
Under what condition can mandatory retirement policies be permissible?
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Which of the following may be a consequence of failing to address issues identified in exit interviews?
Which of the following may be a consequence of failing to address issues identified in exit interviews?
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What could be a reason for liability when dealing with older employees?
What could be a reason for liability when dealing with older employees?
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In Alberta, which statement about retirement policies is correct?
In Alberta, which statement about retirement policies is correct?
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What is one potential issue with mandatory retirement policies?
What is one potential issue with mandatory retirement policies?
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What can individuals do if they believe their personal information has been misused under the Freedom of Information and Protection of Privacy Act?
What can individuals do if they believe their personal information has been misused under the Freedom of Information and Protection of Privacy Act?
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Which of the following actions is a ground that cannot constitute just cause for dismissal?
Which of the following actions is a ground that cannot constitute just cause for dismissal?
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What is the definition of just cause in employment law?
What is the definition of just cause in employment law?
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In which situation may dismissal for cause be justified immediately?
In which situation may dismissal for cause be justified immediately?
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What is the significance of the no-fault provision in WC legislation?
What is the significance of the no-fault provision in WC legislation?
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What is one of the key objectives of the WC legislative framework?
What is one of the key objectives of the WC legislative framework?
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What requirement must be met for an injury to be covered under workers' compensation?
What requirement must be met for an injury to be covered under workers' compensation?
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Under what condition may an employee's resignation not be considered voluntary?
Under what condition may an employee's resignation not be considered voluntary?
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What should an employer do to prevent an employee from working during their notice period?
What should an employer do to prevent an employee from working during their notice period?
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What is a potential consequence if employees are not trained on privacy policies?
What is a potential consequence if employees are not trained on privacy policies?
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For what reason can a resignation be inferred without a formal notice?
For what reason can a resignation be inferred without a formal notice?
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What type of injury is unlikely to be covered due to wilful misconduct?
What type of injury is unlikely to be covered due to wilful misconduct?
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Which condition permits workers to bypass the burden of proof for a causal relationship?
Which condition permits workers to bypass the burden of proof for a causal relationship?
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What constitutes a valid claim for mental stress or disorder?
What constitutes a valid claim for mental stress or disorder?
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What is required for an employee to claim constructive dismissal?
What is required for an employee to claim constructive dismissal?
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In the context of constructive dismissal, what constitutes a significant change in the employment terms?
In the context of constructive dismissal, what constitutes a significant change in the employment terms?
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What must an employer do to defend against a claim of constructive dismissal?
What must an employer do to defend against a claim of constructive dismissal?
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Employers are permitted to recover part of their Workers' Compensation premium from workers.
Employers are permitted to recover part of their Workers' Compensation premium from workers.
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A worker in British Columbia has 90 days to request a review if they disagree with a WCB decision.
A worker in British Columbia has 90 days to request a review if they disagree with a WCB decision.
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Employers are required to provide the WCB with information related to their employees' performance evaluations.
Employers are required to provide the WCB with information related to their employees' performance evaluations.
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Establishing a return-to-work plan is a recommended procedure in effective claims management for Workers' Compensation claims.
Establishing a return-to-work plan is a recommended procedure in effective claims management for Workers' Compensation claims.
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Privacy of personal information has become less significant due to technological advancements.
Privacy of personal information has become less significant due to technological advancements.
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Study Notes
WCB Benefit Eligibility
- Work-related injuries are typically covered by Workers' Compensation Boards (WCBs), but there are exceptions.
- Injuries attributed to the worker's serious and wilful misconduct are unlikely to be covered. This includes incidents while intoxicated, intentional self-harm, personal fights, horseplay, or activities unrelated to work.
- Disability claims may be affected by gradual onset situations and pre-existing conditions.
- Occupational diseases are covered if there's a clear connection between work conditions and the recognized disease.
- Mental stress or chronic pain claims must be predominantly caused by work-related events that are objectively confirmed and excessive or unusual. Diagnoses must be made by qualified medical experts and cannot result from filing a compensation claim.
- The onus is usually on the worker to prove a causal relationship between their work and their disability.
- Exceptions to this rule involve certain conditions like PTSD for first responders, cancers and heart attacks for firefighters, and listed industrial diseases that can be presumed to result from employment under Schedule B of the BC WC Act and Alberta WC Regulation.
Privacy
- The Personal Information Protection and Electronic Documents Act (PIPEDA) is a federal act that regulates how organizations collect, use, and disclose personal information. It applies to both employees and customers within federally regulated industries.
- "Personal information" includes a wide range of data, including demographics, identifiers, financial information, medical records, and employment records.
- The Freedom of Information and Protection of Privacy Act governs access to information held by public bodies and ensures individuals can request correction of their personal information.
- Provincial laws like Alberta's Personal Information Protection Act (PIPA) address privacy in provincially regulated industries.
- Exit interviews can offer valuable insights for employers and help identify potential issues that could lead to claims.
Retirement
- Ontario law generally prohibits mandatory retirement policies at a specific age due to potential age-related discrimination.
- Employers can implement mandatory retirement policies if they can demonstrate it is a bona fide occupational requirement.
- Employers should document reasons for terminating older employees to avoid age discrimination claims.
- Assuming an older employee will retire can lead to liability.
- Early retirement incentives, when presented neutrally, do not constitute age discrimination.
Dismissal without Cause
- When there is no just cause for dismissal, employers must provide employees with reasonable notice under common law.
- Statutory minimum termination requirements in Alberta and British Columbia are typically lower than common law reasonable notice requirements.
- The statutory notice period allows employees time to search for new employment.
- Employees can either claim entitlements under the Employment Standards Code (ESC) or the Employment Standards Act (ESA) or pursue a wrongful dismissal lawsuit.
Minimum Statutory Requirements: Notice/Pay
- Alberta requires a notice period or pay in lieu of notice for employees with three or more months of service.
- British Columbia requires employees to receive compensation for length of service (CLOS) or notice after three months or more of service.
- Employers can choose to provide notice, pay, or a combination of both.
- Statutory pay or notice is not required for temporary layoffs in these provinces.
- Once notice is given, employers cannot alter the terms and conditions of employment.
- In BC, employees are not obligated to provide notice, while Alberta employees are required to provide 1 to 2 weeks of notice, subject to exceptions.
- Employers can pay out statutory requirements after an employee has provided notice.
Minimum Statutory Requirements: Temporary Layoff
- Temporary layoffs involve a temporary ceasing of work with the intention to recall the employee.
- In Alberta, layoffs exceeding 60 days are considered terminations, requiring termination pay.
- Collective agreements can negotiate longer layoff periods.
- British Columbia has no general right to layoff, and weeks where an employee earns less than 50% of their regular wage are considered layoff weeks.
Minimum Statutory Requirements: Continuity of Employment
- When a business is sold, leased, transferred, or merged, employment is considered continuous if the business continues to operate and the employee works for the new owner.
- Notice, pay in lieu of notice, and CLOS requirements (in BC) apply from the original employment date if the new employer decides to terminate.
- An exception occurs if there is a gap in employment exceeding three months.
Minimum Statutory Requirements: Communicating Notice
- Notice must be provided in writing.
- Communication can occur in person, by mail, fax, or email.
- When providing working notice, employers cannot alter the terms and conditions of employment or reduce pay. Employees must be paid the wages they would typically earn during the notice period.
Minimum Statutory Requirements: Calculating Notice - Alberta
- The Employment Standards Code (ESC) outlines notice periods based on length of service:
- Less than 3 months: No notice required
- 3 to 2 years: 1 week
- 2 to 4 years: 2 weeks
- 4 to 6 years: 4 weeks
- 6 to 8 years: 5 weeks
- 8 to 10 years: 6 weeks
- 10 or more years: 8 weeks
Minimum Statutory Requirements: Calculating CLOS/Notice - BC
- The Employment Standards Act (ESA) defines CLOS/notice periods by length of service:
- Less than 3 months: No notice or CLOS required
- 3 to 1 year: 1 week
- 1 to 3 years: 2 weeks
- 3 to 4 years: 3 weeks
- 4 to 5 years: 4 weeks
- 5 to 6 years: 5 weeks
- 6 to 7 years: 6 weeks
- 7 to 8 years: 7 weeks
- 8 or more years: 8 weeks
Common Law Reasonable Notice
- Common law reasonable notice typically exceeds the minimum statutory requirements and is determined on a case-by-case basis.
-
Bardal factors are considered when determining reasonable notice:
- Length of service
- Age
- Position and responsibilities
- Availability of comparable employment
- State of the economy
- Employee's contributions to the company
- Circumstances surrounding termination
Workers' Compensation Legislation
- Alberta and BC's Workers' Compensation (WC) Acts are a no-fault insurance scheme for work-related injuries or diseases.
- Employers pay premiums to fund the system.
- Workers receive compensation for injuries or diseases sustained on the job, but forfeit the right to sue their employers.
- Emphasis on prevention and preventative measures in WC legislation.
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Key features of WC Legislation:
- No-fault system; pays out regardless of negligence.
- Benefits are funded through premiums.
- Workers cannot contribute to premiums.
- WC rights cannot be waived.
- Most employers are mandated to provide coverage.
- Focus is on safe and early return to work (RTW).
- Vocational rehabilitation offered for employees who cannot return to their original roles.
- WC boards (e.g. WorkSafeBC and WCB Alberta) administer the system.
Coverage
- Most industries are covered by WC legislation.
- Some industries, including financial institutions, recreational and social clubs, broadcasting stations, and law firms, are not compulsorily covered but can opt in.
- Alberta has eliminated the agriculture exemption, meaning agricultural workers are now covered.
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Exclusions:
- Independent contractors.
- Sole proprietors.
- Executive officers.
WCB Benefit Eligibility
-
Must be "arising out of and in the course of employment":
- Injuries need not be directly related to job duties, as long as they are reasonably incidental to employment.
-
Wilful Misconduct:
- Injuries attributable primarily to the worker's serious and wilful misconduct are unlikely to be covered.
- Examples of wilful misconduct include:
- Criminal activity.
- Intoxication at work.
- Intentional self-inflicted injury.
- Fighting over personal issues.
- Horseplay that deviates significantly from employment duties.
- Activities exclusively personal and unrelated to work duties.
-
Disability Claims:
- Gradual onset conditions and pre-existing conditions may be eligible for benefits.
-
Occupational Diseases:
- A clear causal relationship between work and the recognized disease must exist.
-
Mental Stress or Disorder and Chronic Pain:
- Work-related events must be the predominant cause of the condition; events must be excessive or unusual.
- Diagnosis by a qualified medical expert is required.
- Claims are generally ineligible if a result of making a compensation claim itself.
Disability Claims
- The onus of proof regarding a causal connection between work and the condition is typically on the worker.
- Exceptions to this rule:
- PTSD for first responders.
- Certain cancers and heart attacks for firefighters.
- Industrial diseases listed in Schedule B of the British Columbia WC Act and the Alberta WC Regulation.
- If a worker develops a listed disease, there is a rebuttable presumption that it resulted from their employment.
Privacy
-
Federal Privacy Act:
- Regulates the collection, use, and disclosure of personal information by organizations operating in Canada.
- Individuals have the right to access their personal information held by organizations and to have it corrected.
- Individuals may also make complaints to the commissioner if they believe their privacy has been violated.
Resignation
-Formal Acceptance: Employers should acknowledge resignation letters in writing.
- Voluntary Resignation: An employee pressured to resign may not have voluntarily resigned.
- Intentional Conduct: Resignation can be determined by an employee's deliberate, unequivocal, and non-impulsive actions.
-
Notice Period:
- Common law requires reasonable notice, although there is no statutory requirement.
- Statutory notice requirements may apply under certain circumstances.
- An employer can prevent an employee from working during the notice period by paying the employee, although the employee is not required to attend work.
Dismissal With Cause
- "Just Cause": Implies an employee breached the contract in a fundamental way that absolves the employer of its notice obligations.
- Near Cause: Misconduct or incompetence falling short of just cause does not permit a reduced notice period or pay in lieu of notice.
- Proportionality: Sanctions must correspond to the seriousness of the misconduct.
- Multiple Occurrences: Most types of misconduct must generally occur more than once to constitute just cause.
-
Examples of Just Cause:
- Theft.
- Assault.
- Gross negligence.
- Incompetence.
- Dishonesty.
- Fraud.
- Breach of confidentiality
- Sexual harassment.
- Psychological harassment (bullying).
- Intoxication.
- Substance abuse.
- Probationary employee misconduct.
Grounds That Cannot Constitute Just Cause
- Dismissal for asserting statutory rights is unlawful.
- Examples:
- Human Rights Code.
- Employment Standards Act, 2000 (including pregnancy or parental leave).
- Occupational Health and Safety Act (including the right to refuse unsafe work).
- Workplace Safety and Insurance Act, 1997 (including rights related to work-related absences).
- Pay Equity Act.
- Labour Relations Act, 1995 (union-related activity)
- Remedies for dismissal for asserting statutory rights may include monetary damages, reinstatement, or both.
Duty to Mitigate
- Common Law Principle: Not a statutory requirement.
- Reasonable Steps: The employee is obligated to take reasonable steps to find comparable work to minimize damages owed by the employer.
-
Onus of Proof: The employer must prove the employee failed to mitigate by showing:
- Comparable jobs were available.
- The employee did not take reasonable steps to secure those jobs.
Constructive Dismissal
-
Employer Actions: The employer makes a fundamental and unfavorable change to the contract without:
- providing reasonable notice, or
- explaining the consequences of rejecting the change.
- Employee Resignation: The employee can resign and claim damages if the employer's conduct indicates an intent to end the contract.
- Reasonable Person Standard: Would a reasonable person consider the changes imposed by the employer unreasonable and unfair?
-
Examples of Constructive Dismissal:
- Substantial changes to compensation.
- Significant changes to duties.
- Geographic relocations and changes in travel time.
- Changes to hours and scheduling.
- Layoffs.
- Hostile work environment.
Avoiding Wrongful Dismissal Claims
-
Important Actions for Employers:
- Hire carefully.
- Include and update thorough termination clauses.
- Utilize probationary periods.
- Maintain detailed documentation.
- Provide reasonable notice of changes.
- Ensure just cause claims are sustainable.
- Establish appropriate notice periods if there is no just cause.
- Handle terminations professionally.
- Offer outplacement counseling.
- Seek signed release, where possible.
- Consider all relevant issues meticulously when providing a letter of reference.
- Provide the Record of Employment (ROE) promptly.
Funding The Workers Compensation System
- Employers are responsible for funding the system by paying premiums, which are determined by the type of industry and potential hazards.
- Employers cannot recover any part of the premium from workers.
- Employers are required to register with the Workers Compensation Board (WCB) and provide information to classify their business and assign a base insurance rate.
Effective Claims Management
- Employers should have established procedures for investigating injuries and complete accident reports to initiate the claims process.
- All claims, regardless of severity, should be documented.
- Justifiable claims must be compensated promptly.
- Doubtful claims should be challenged but only if truly doubtful and protested from the outset.
- Employers should keep records of all contacts made with the WCB.
- Employers should create a return-to-work plan for employees, but this must be done without contacting the employee's physician.
- Confidentiality of all medical files is important and employers should keep them separate from employee personnel files.
Appeals of WCB Decisions
- Workers, dependents, or employers who disagree with a WCB decision can request a review.
- In British Columbia, the time limit to request a review is 90 days.
- The WCB Appeals Commissions are independent of the WC Boards.
Privacy
- Privacy of personal information is increasingly important.
- In the past, privacy was protected because it was difficult to compile records.
- Currently, information can be collected, analyzed, and manipulated very quickly making privacy concerns paramount.
- Employers can be held liable for privacy invasions carried out by their employees.
Personal Information Protection and Electronic Documents Act (PIPEDA)
- PIPEDA is federal legislation that addresses how personal information can be collected, used, and disclosed by organizations.
- This act applies to both public and private sector organizations.
What Is “Personal Information”?
- Personal information is any data related to an identifiable individual.
- This could include: age, sex, religion, ethnicity, opinions, photographs, identifying numbers, home address, residential phone number, personal email address, web browsing history, purchasing and spending habits, income, credit records, loan records, disciplinary actions, employee files, pay, benefits records, and blood type.
Freedom of Information and Protection of Privacy Act
- The Freedom of Information and Protection of Privacy Act (FOIPPA) provides individuals with the right to request access to information held by public bodies.
- This act also provides a framework for public bodies to manage the collection, use, and disclosure of personal information.
- The act requires public bodies to release the information they hold, unless there is a legal basis for withholding it.
- This act allows individuals to request corrections to their personal information held in government files.
- Individuals can file complaints with the Information and Privacy Commissioner if they believe their personal information has been used or disclosed in violation of the Act.
PIPEDA: Who’s Covered?
- PIPEDA was implemented by the federal government in 2001 to protect individuals' privacy in the private sector.
- This Act applies to personal information collected, used, disclosed, and retained on employees and customers in federally regulated industries.
- Alberta, British Columbia, and other provinces have passed similar legislation for provincially regulated industries.
Minimum Statutory Requirements
- Employers are required to provide reasonable notice to employees if they are terminated without just cause.
- The Alberta Employment Standards Code (ESC) and the British Columbia Employment Standards Act (ESA) set minimum termination requirements.
- These requirements generally lower than common law “reasonable notice” requirements.
- The notice period is intended to give the employee time to find another job.
- Employees may be able to claim entitlements under the ESC/ESA or file a wrongful dismissal lawsuit.
Minimum Statutory Requirements: Notice/Pay
- In Alberta, employees are entitled to notice of termination or pay in lieu of notice after three months or more of employment.
- In British Columbia, employees are entitled to notice or compensation for length of service (CLOS) after three months or more of employment.
- Employers can choose to provide notice, pay, or a combination of both.
- Pay or notice is not required for temporary layoffs in both Alberta and British Columbia, if those are allowed.
- Once notice is given, the employer cannot change the terms and conditions of employment.
Minimum Statutory Requirements: Notice/Pay (cont’d)
- In British Columbia, there is no statutory duty for employees to give notice.
- In Alberta, employees are required to provide one to two weeks of notice.
- The employer may pay out statutory requirements after the employee has given notice.
Minimum Statutory Requirements: Temporary Layoff
- A temporary layoff is a cessation of work with the intent to recall employees at a later date.
- In Alberta, a temporary layoff exceeding 60 days is considered termination, and termination pay is required.
- In British Columbia, there is no general right to layoff.
- Weeks in which an employee earns less than fifty percent of their regular wages are considered layoff weeks.
Minimum Statutory Requirements: Continuity of Employment
- If a business is sold, leased, transferred, or merged, employment is continuous as long as the business continues to operate and the employee continues to work for the new owner.
- If the new employer wishes to terminate the worker, notice requirements apply based on the date of employment with the original employer.
- However, if there is a gap in employment of more than three months, the continuity will be severed.
Minimum Statutory Requirements: Communicating Notice
- Notice must be provided in writing and delivered in person or through mail, fax, or email.
- When working notice is provided in lieu of pay in lieu of notice or CLOS, the employer cannot alter the terms and conditions of employment.
- The employer cannot reduce the employee’s pay during this period and must pay the employee what they would normally earn.
Minimum Statutory Requirements: Calculating Notice—Alberta
- The Employment Standards Code (ESC) sets minimum notice periods in Alberta.
- The notice period depends on the length of service.
- For example, an employee with 8 to 10 years of service is entitled to 6 weeks of notice.
Minimum Statutory Requirements: Calculating CLOS/Notice—British Columbia
- The British Columbia Employment Standards Act (ESA) sets out the CLOS/notice periods in British Columbia.
- Like Alberta, the period is based on the length of service.
- For example, an employee with 6-7 years of service is entitled to 6 weeks of notice.
Common Law Reasonable Notice
- Common law reasonable notice is typically longer than the minimum statutory requirements set out under the ESC/ESA.
- Courts consider a number of factors when determining a reasonable notice period including the Bardal factors.
Wrongful Dismissal
- An employee can file a wrongful dismissal claim if the employer did not have just cause for dismissal and failed to provide sufficient notice or pay in lieu of notice.
- Just cause must be proven by the employer.
- The employee has two years to file a lawsuit.
- In Alberta, claims under 50,000canbefiledinSmallClaimsCourt,andclaimsover50,000 can be filed in Small Claims Court, and claims over 50,000canbefiledinSmallClaimsCourt,andclaimsover50,000 can be filed in the Court of Queen's Bench.
- In British Columbia, claims under 25,000canbefiledinSmallClaimsCourtorBCSupremeCourt.Claimsover25,000 can be filed in Small Claims Court or BC Supreme Court. Claims over 25,000canbefiledinSmallClaimsCourtorBCSupremeCourt.Claimsover25,000 are filed in BC Supreme Court.
Reasonable Notice Damages: Basic Entitlements
- Wrongfully dismissed employees are not typically entitled to reinstatement by the employer.
- Their basic entitlements are based on the contract of employment or the terms of employment at the time of dismissal.
- They may be entitled to several things including: salary, benefits (club memberships, meal expenses, rent-free residences), company vehicles, insurance, bonuses, stock options, and pension entitlements.
Wrongful Dismissal: Other Types of Damages
- There are three main types of damages an employee can receive in a wrongful dismissal case besides reasonable notice.
- Reasonable notice: This should be determined according to Bardal factors and is a basic entitlement in wrongful dismissal cases.
- Moral (Wallace) Damages or Aggravated Damages: These damages are awarded for conduct that was untruthful, misleading, insensitive, or humiliating.
- Punitive Damages: Only awarded for misconduct that is harsh, vindictive, malicious, and reprehensible to deter bad behavior.
Bad Faith Dismissal
- Bad faith dismissal occurs when an employer terminates an employee in a manner that is untruthful, misleading, insensitive, or humiliating.
- There are several examples of what a court may determine to be bad faith termination:
- False allegations of cause or incompetence.
- Behaviors that harm the employee's reputation.
- Harassment or sexual harassment prior to dismissal.
- Dismissal connected to a disability.
- **
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Test your understanding of the eligibility criteria for Workers' Compensation Board benefits related to work injuries. Explore exceptions and necessary conditions such as misconduct, occupational diseases, and mental stress claims. This quiz helps clarify the complexities surrounding WCB coverage.
