Workers' Compensation Legislation in Canada
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Questions and Answers

What is meant by 'personal information'?

  • Objects owned by an individual.
  • Any information that is publicly available.
  • Information that can identify an individual. (correct)
  • General statistics about a population.

    • Under which act are organizations required to manage personal information collection?

  • Privacy Act.
  • Personal Information Protection and Electronic Documents Act (PIPEDA). (correct)
  • Public Information Act.
  • Access to Information Act.

    • Which of the following is included as personal information?

  • General news articles.
  • Home address. (correct)
  • Company budgets.
  • Public job postings.

    • What is the potential liability of employers regarding the actions of their employees?

    <p>Employers can be liable for privacy invasions by employees.</p> Signup and view all the answers

    Which of the following is NOT a ground that may justify dismissal for just cause?

    <p>Union-related activity</p> Signup and view all the answers

    What is required for just cause to be established?

    <p>A single act of serious misconduct</p> Signup and view all the answers

    Which entities are considered public bodies under the Freedom of Information and Protection of Privacy Act?

    <p>Agency boards and educational bodies.</p> Signup and view all the answers

    What does personal information NOT include?

    <p>Public events or gatherings.</p> Signup and view all the answers

    What legal recourse is available if an employee is dismissed for asserting their statutory rights?

    <p>Monetary damages or reinstatement</p> Signup and view all the answers

    Which of the following describes a concern related to personal information today?

    <p>Vast amounts can be easily compiled and analyzed.</p> Signup and view all the answers

    Which of the following misconducts could warrant dismissal for cause after a single incident?

    <p>Theft</p> Signup and view all the answers

    Which of the following constitutes near cause?

    <p>Misconduct that does not justify immediate dismissal</p> Signup and view all the answers

    What is one advantage of working notice?

    <p>It provides employees opportunities to seek new work.</p> Signup and view all the answers

    What should be included in a separation package?

    <p>Lump sum payment reflecting minimum standards.</p> Signup and view all the answers

    What is the notice period when terminating 101-300 employees in Alberta?

    <p>12 weeks</p> Signup and view all the answers

    Which of the following is an exception to notice requirements?

    <p>Probationary employees</p> Signup and view all the answers

    What happens to the payments if an employee finds new employment during the notice period?

    <p>Payments stop or a lump sum is provided for the remainder.</p> Signup and view all the answers

    What does the Freedom of Information and Protection of Privacy Act provide?

    <p>Access to government-held records, with specific exceptions</p> Signup and view all the answers

    What must an employer in Alberta do when terminating 50 or more employees?

    <p>Give a minimum of four weeks' notice to the minister.</p> Signup and view all the answers

    Which condition makes working notice inappropriate?

    <p>Employee on sick leave.</p> Signup and view all the answers

    What right does an individual have under the Freedom of Information and Protection of Privacy Act concerning their personal information?

    <p>The right to request corrections to their personal information</p> Signup and view all the answers

    What is an example of a termination associated with economic conditions?

    <p>Company downsizing</p> Signup and view all the answers

    What action can individuals take if they believe their personal information has been mismanaged according to the Act?

    <p>Complain to the Information and Privacy Commissioner</p> Signup and view all the answers

    What does an employee typically sign before receiving the separation package?

    <p>A release statement after minimums are paid out.</p> Signup and view all the answers

    What is PIPEDA designed to regulate?

    <p>Personal information held by organizations in the private sector</p> Signup and view all the answers

    Which legislation was passed to protect personal information in provincially regulated industries?

    <p>Personal Information Protection Act (PIPA)</p> Signup and view all the answers

    Which scenario would most likely require proper advance notice for termination?

    <p>Mass termination involving over 50 employees.</p> Signup and view all the answers

    What significant event occurred regarding Alberta's PIPA in November 2013?

    <p>It was declared unconstitutional by the Supreme Court</p> Signup and view all the answers

    What review did Alberta's PIPA undergo after its amendment in December 2014?

    <p>Comprehensive review of compliance requirements</p> Signup and view all the answers

    What is the main purpose of both the Freedom of Information and Protection of Privacy Act and PIPEDA?

    <p>To protect individual privacy while allowing access to information</p> Signup and view all the answers

    What type of information does PIPEDA primarily focus on?

    <p>Personal information of employees and customers</p> Signup and view all the answers

    What is required for an employee to make a claim for wrongful dismissal?

    <p>The employer must provide sufficient notice or pay in lieu.</p> Signup and view all the answers

    What type of court is used for wrongful dismissal claims under $50,000 in Alberta?

    <p>Small Claims Court</p> Signup and view all the answers

    What constitutes reasonable notice damages in a wrongful dismissal case?

    <p>Contract-based benefits and salary.</p> Signup and view all the answers

    Which damages are awarded for conduct that is harsh and vindictive in wrongful dismissal cases?

    <p>Punitive damages.</p> Signup and view all the answers

    What are moral damages in wrongful dismissal claims based on?

    <p>Good faith in the manner of dismissal.</p> Signup and view all the answers

    What is NOT considered bad faith dismissal behavior?

    <p>Public praise of the employee's work.</p> Signup and view all the answers

    Which of the following benefits is considered in reasonable notice damages?

    <p>Health insurance premiums.</p> Signup and view all the answers

    Who has the burden of proof in proving bad faith dismissal?

    <p>The employee.</p> Signup and view all the answers

    In British Columbia, what type of court is used for claims over $25,000?

    <p>BC Supreme Court.</p> Signup and view all the answers

    Which of these factors are used to determine reasonable notice?

    <p>The Bardal factors.</p> Signup and view all the answers

    What type of insurance scheme is the workers' compensation system characterized as?

    <p>No-fault insurance</p> Signup and view all the answers

    Which of the following statements is true regarding workers' compensation premiums?

    <p>Employers pay premiums that fund the cost of workers' compensation.</p> Signup and view all the answers

    Which of the following groups is typically excluded from workers' compensation coverage?

    <p>Independent contractors</p> Signup and view all the answers

    What is one major objective of the workers' compensation legislation?

    <p>To ensure employers are not sued for work-related injuries.</p> Signup and view all the answers

    Which feature of the workers' compensation legislation emphasizes the importance of rehabilitating injured workers?

    <p>Vocational rehabilitation</p> Signup and view all the answers

    Which condition must be met for a worker to be eligible for workers' compensation benefits?

    <p>The injury must arise out of and in the course of employment.</p> Signup and view all the answers

    What is a necessary condition for establishing just cause in an employee's dismissal?

    <p>The misconduct must involve a fundamental breach of contract.</p> Signup and view all the answers

    Which of the following acts of misconduct can potentially justify dismissal for just cause based on common law?

    <p>Excessive absenteeism without reason</p> Signup and view all the answers

    Which of the following statements about workers' compensation coverage is accurate?

    <p>Coverage is mandatory for most employers.</p> Signup and view all the answers

    In the context of determining the appropriate sanction for misconduct, what factor should be considered?

    <p>Whether the misconduct was deliberate or a momentary error in judgment</p> Signup and view all the answers

    Which procedural fairness aspect is crucial in just cause investigations?

    <p>Employees should be given an opportunity to respond to allegations.</p> Signup and view all the answers

    Which of the following would likely NOT be considered when assessing the severity of misconduct to establish just cause?

    <p>The employee’s personal life circumstances</p> Signup and view all the answers

    What is the primary responsibility of employers in funding the WC system?

    <p>Employers must pay the full cost of the system by means of premiums.</p> Signup and view all the answers

    What information must employers provide to classify their insurance rate?

    <p>Type of industry and potential hazards.</p> Signup and view all the answers

    What should be done with all claims, regardless of their severity?

    <p>All claims should be documented, however minor.</p> Signup and view all the answers

    What is NOT a recommended action when managing claims?

    <p>Contacting the employee's physician regarding claims.</p> Signup and view all the answers

    What is the time limit for requesting a review of a decision in BC?

    <p>90 days.</p> Signup and view all the answers

    Who can request a review of a decision made by the WCB?

    <p>Workers, dependents, and employers can request a review.</p> Signup and view all the answers

    What should be maintained separately from personnel files?

    <p>Medical files of employees.</p> Signup and view all the answers

    Which program emphasizes injury reduction in Alberta?

    <p>Partnerships in Injury Reduction (PIR).</p> Signup and view all the answers

    What is covered under Permanent Total Disability benefits?

    <p>Payments payable for life</p> Signup and view all the answers

    What is the role of the WCB Appeals Commission?

    <p>They are independent of WC Boards for review purposes.</p> Signup and view all the answers

    Which benefit covers the retraining of a worker for different employment after an injury?

    <p>Vocational Rehabilitation</p> Signup and view all the answers

    Which of the following actions is recommended for claims management?

    <p>Create a return-to-work plan.</p> Signup and view all the answers

    What type of benefits are provided for injuries that lead to a reduction in the worker’s ability to perform their job?

    <p>Permanent Partial Disability or Disfigurement</p> Signup and view all the answers

    What is the primary consideration for providing Death and Survivor Benefits?

    <p>The deceased’s net average earnings</p> Signup and view all the answers

    What kind of payment is made under Temporary Total Disability benefits?

    <p>Periodic payments equivalent to permanent disability amounts</p> Signup and view all the answers

    Which option represents the type of benefit that compensates for earnings lost on the day of the injury?

    <p>Lost earnings covered by the employer</p> Signup and view all the answers

    Which of the following benefits is payable for life?

    <p>Permanent Partial Disability or Disfigurement</p> Signup and view all the answers

    In which situation might a worker qualify for Vocational Rehabilitation benefits?

    <p>Following a serious injury where retraining is necessary</p> Signup and view all the answers

    What aspect of a worker’s situation impacts Survivor Benefits for a spouse?

    <p>The worker's net average earnings</p> Signup and view all the answers

    What is required for an employer to legally implement a mandatory retirement policy?

    <p>Bona fide occupational requirement</p> Signup and view all the answers

    What should employers do to avoid age discrimination complaints when terminating older employees?

    <p>Document the reasons for termination carefully</p> Signup and view all the answers

    How should early retirement offers be presented to ensure neutrality?

    <p>By a neutral third-party contact person</p> Signup and view all the answers

    What is a potential risk of assuming that an older employee will retire?

    <p>Liability for age discrimination</p> Signup and view all the answers

    What might employers gain from conducting exit interviews?

    <p>Valuable feedback identifying potential issues</p> Signup and view all the answers

    Which of the following statements is true regarding early retirement incentives?

    <p>They do not constitute age discrimination by themselves</p> Signup and view all the answers

    What is one potential consequence of failing to address issues raised in exit interviews?

    <p>Claims filed against the employer</p> Signup and view all the answers

    What constitutes a legal risk for employers when terminating older employees?

    <p>Creating a perception of unfair treatment</p> Signup and view all the answers

    Which statement accurately reflects Ontario law regarding mandatory retirement?

    <p>Mandatory retirement policies are generally prohibited</p> Signup and view all the answers

    What factor can justify the lawful termination of an older employee by an employer?

    <p>Demonstrating a bona fide occupational requirement</p> Signup and view all the answers

    What is a key benefit of providing working notice to employees?

    <p>It is a cost-efficient way for employers during economic conditions.</p> Signup and view all the answers

    What is typically included in a lump sum separation package?

    <p>Salary and benefit continuation during the notice period.</p> Signup and view all the answers

    In Alberta, what is the notice period required when terminating 301 or more employees?

    <p>16 weeks</p> Signup and view all the answers

    Which of the following is considered an exception to notice requirements?

    <p>Casual employees.</p> Signup and view all the answers

    What must an employer do if terminating 50 or more employees at one location in Alberta?

    <p>Notify the minister at least four weeks in advance.</p> Signup and view all the answers

    Under what circumstance will an injury likely be covered by workers' compensation?

    <p>The injury occurs while performing normal work duties.</p> Signup and view all the answers

    Which of the following is necessary for a disability claim to be accepted?

    <p>Documentation of work-related events.</p> Signup and view all the answers

    In which case does the worker not bear the onus to prove a causal relationship for a disability claim?

    <p>Claims related to PTSD for first responders.</p> Signup and view all the answers

    What type of events must be demonstrated to link a mental stress claim to workers' compensation?

    <p>Excessive or unusual work-related events.</p> Signup and view all the answers

    What is an example of an action that would likely disqualify an injury from workers' compensation coverage?

    <p>Injury resulting from fighting over personal issues.</p> Signup and view all the answers

    What is required to establish a causal relationship for occupational diseases under workers' compensation?

    <p>A clear connection between work conditions and the recognized disease.</p> Signup and view all the answers

    Which of the following scenarios illustrates wilful misconduct under workers' compensation guidelines?

    <p>A worker consumes alcohol during a lunch break and injures themselves.</p> Signup and view all the answers

    What is the percentage of compensation that Robert receives from WCB based on his pre-injury net earnings?

    <p>90%</p> Signup and view all the answers

    What amount does Robert earn weekly while on modified duties after his injury?

    <p>$500</p> Signup and view all the answers

    If Robert's net average earnings are $1000, what will be the WCB loss of earnings benefit he receives while working modified duties?

    <p>$450</p> Signup and view all the answers

    Which of the following actions must both the employer and employee take to facilitate Robert's early return to work?

    <p>Maintain regular communication</p> Signup and view all the answers

    What are the implications of failing to provide medical information relevant to Robert's functional abilities?

    <p>Suspension of benefits</p> Signup and view all the answers

    How is Robert's total earnings calculated while on modified duties?

    <p>$500 + $450</p> Signup and view all the answers

    What type of treatment is Robert's physiotherapy considered under WCB?

    <p>100% covered</p> Signup and view all the answers

    How long is Robert estimated to be unable to use his hand after the injury?

    <p>Four weeks</p> Signup and view all the answers

    What is the primary goal of the WCB in the context of workplace injuries?

    <p>Returning the worker to their pre-accident employer</p> Signup and view all the answers

    What does the Digital Privacy Act require organizations to do when a security breach occurs that risks significant harm?

    <p>Report and keep records of the breach</p> Signup and view all the answers

    Which of the following statements about the definition of 'personal information' under PIPEDA is accurate?

    <p>It now encompasses information about applicants as well.</p> Signup and view all the answers

    What is a condition under which organizations may disclose personal information without consent according to recent amendments in PIPEDA?

    <p>In cases involving illegality or fraud</p> Signup and view all the answers

    Which principle emphasizes that individuals must give consent before their information is collected?

    <p>Consent</p> Signup and view all the answers

    What does the principle of 'limited retention' under PIPEDA imply about the usage of personal information?

    <p>Organizations must retain personal information only as long as necessary for the identified purposes.</p> Signup and view all the answers

    Under PIPEDA, what should organizations ensure about the accuracy of collected personal information?

    <p>They should ensure the information is accurate and allow individuals to correct errors.</p> Signup and view all the answers

    What is emphasized by the principle of 'providing safeguards' in PIPEDA?

    <p>Organizations should protect personal information against unauthorized access.</p> Signup and view all the answers

    What is required of organizations regarding their privacy policies under the principle of 'being open'?

    <p>Supervisors must be familiar with the policies, and the policies should be transparent.</p> Signup and view all the answers

    What action is permissible under PIPEDA regarding business contact information?

    <p>It is exempt when used solely for professional communications.</p> Signup and view all the answers

    What is a potential consequence of assuming an older employee will retire?

    <p>Possible age discrimination claims</p> Signup and view all the answers

    Under what condition is a mandatory retirement policy permissible?

    <p>If it is a bona fide occupational requirement</p> Signup and view all the answers

    How should early retirement offers be presented to employees?

    <p>In a neutral manner by a neutral contact person</p> Signup and view all the answers

    What is a recommended practice for employers when terminating older employees?

    <p>Carefully documenting the reasons for termination</p> Signup and view all the answers

    What might exit interviews help employers identify?

    <p>Issues that could lead to claims</p> Signup and view all the answers

    What is NOT a characteristic of mandatory retirement policies in Ontario?

    <p>They are generally permitted by law</p> Signup and view all the answers

    What does making an early retirement incentive available imply?

    <p>Potential age discrimination allegations</p> Signup and view all the answers

    What should employers do to mitigate liability when terminating older employees?

    <p>Ensure reasons for termination are well documented</p> Signup and view all the answers

    What is the primary goal of conducting exit interviews for specialized employees?

    <p>To gather insights on potential internal issues</p> Signup and view all the answers

    What must an employer demonstrate if they wish to implement mandatory retirement for certain positions?

    Signup and view all the answers

    What is required for an employer to implement mandatory retirement policies?

    <p>Proof that mandatory retirement is a bona fide occupational requirement</p> Signup and view all the answers

    Which of the following may lead to age discrimination complaints when an older employee is terminated?

    <p>Failing to document reasons for termination</p> Signup and view all the answers

    How should early retirement offers be presented to minimize liability?

    <p>By a neutral contact person</p> Signup and view all the answers

    What can employers assume about older employees regarding retirement without risking liability?

    <p>They may not retire simply based on age alone</p> Signup and view all the answers

    What aspect of mandatory retirement can be seen as a form of discrimination under Ontario law?

    <p>Enforcing retirement at a set age</p> Signup and view all the answers

    To avoid age discrimination claims, what should employers do when terminating older employees?

    <p>Provide written documentation justifying the termination</p> Signup and view all the answers

    Which statement about early retirement incentives is accurate?

    <p>They should be neutral and not imply pressure to retire</p> Signup and view all the answers

    What potential legal issue could arise from conducting exit interviews for employees with special expertise?

    <p>They could lead to claims if sensitive issues are identified</p> Signup and view all the answers

    Which scenario does NOT imply proper handling of termination for older employees?

    <p>Requiring aging employees to sign retirement waivers</p> Signup and view all the answers

    What is a key consideration when documenting employee terminations related to age?

    <p>It must align with company policies and legal requirements</p> Signup and view all the answers

    Study Notes

    Workers' Compensation Legislation

    • Workers' compensation (WC) acts in Alberta and BC operate as no-fault insurance schemes for work-related injuries or diseases.
    • Employers pay premiums to fund the cost of the system.
    • In exchange, employers are protected from lawsuits by injured workers.
    • WC legislation focuses increasingly on injury prevention.

    Key Features of the Legislation

    • No-fault: Compensation is provided regardless of negligence by the employer or employee.
    • Funding by premiums: Benefits are paid from premiums collected from employers.
    • Illegal worker contributions: Workers cannot contribute to WC premiums.
    • Non-waivable rights: WC rights cannot be waived.
    • Mandatory coverage: Most employers are required to have coverage.
    • Early return to work (RTW) focus: The legislation emphasizes returning workers to work safely and as soon as possible.
    • Vocational rehabilitation: Services are available to help workers return to work in a different capacity if unable to return to original roles.
    • Administration through boards: WorkSafeBC (BC) and WCB Alberta administer the system respectively.

    Coverage

    • Most industries are covered by WC legislation.
    • Some industries are not compulsorily covered but may opt in.
    • Excluded workers include independent contractors, sole proprietors, and executive officers (in some jurisdictions).
    • Specific examples of industries/organizations that might be excluded or required to apply for coverage include financial institutions, recreational and social clubs, broadcasting stations, and law firms.
    • The agriculture exemption has been eliminated in Alberta.

    WCB Benefit Eligibility

    • Injury must arise "out of and in the course of employment."
    • Injury does not need to be directly related to the job; it must be reasonably incidental to the work.
    • Intentional misconduct or self-harm, criminal acts, or intoxication are normally not covered.

    WCB Benefit Eligibility (cont'd)

    • Covers disability claims, including those with gradual onset and pre-existing conditions.
    • Covers occupational diseases with a clear causal relationship to work or work conditions.
    • Mental stress or disorder and chronic pain as a result of work-related events (if excessive or unusual, and objectively confirmed) are compensable, but not if the claim resulted from the claim itself.

    Disability Claims

    • The onus is on the worker to prove a causal relationship to work, except in specific cases (e.g., first responders, Schedule B in BC, listed industrial diseases in Alberta).
    • First responders are an exception category. Certain types of cancers and heart attacks are covered for firefighters, depending upon jurisdiction.
    • Industrial diseases or illnesses listed within the specific legislation are considered to result from employment unless proven otherwise.

    What Do Benefits Cover?

    • Lost earnings on the day of injury.
    • Health care costs associated with the injury.
    • Temporary partial disability payments.
    • Permanent total disability payments (often for life).
    • Temporary total disability payments (periodic payments).
    • Vocational rehabilitation costs and training.
    • Death and survivor benefits to surviving spouses and dependents.

    Case Study: Robert

    • Robert, a 38-year-old auto mechanic, tears a ligament during his work shift.
    • His employer pays his full wages and benefits for the recovery period.
    • Robert's physiotherapy and other treatments are covered by the WCB.
    • WCB compensates for lost earnings.
    • After four weeks, Robert returns to work with modified duties and receives a portion of benefits based upon the reduction in income related to his modified duties.

    Duty to Co-operate

    • WCB aims to return workers to their pre-accident roles.
    • Both the employer and employee need to cooperate to achieve this.
    • Disclosure of relevant medical information and cooperation in developing a return-to-work plan is required of the employee.
    • Failure to comply can lead to the suspension of benefits.

    Funding the WC System

    • Employers pay premiums that fund the WCB system fully.
    • Recoveries from injured workers are illegal.
    • Employers register with the WCB.
    • The WCB uses the information provided by employers to assess rates. This includes characteristics of the type of industry and the potential hazards present.
    • Certificates of recognition (COR) and partnerships in injury reduction (PIR) programs are common funding mechanisms.

    Effective Claims Management

    • Implementing effective procedures for injury investigations.
    • Completing and filing accident reports.
    • Documenting all claims, even minor ones.
    • Compensating justifiable claims promptly.
    • Challenging only doubtful claims, but asserting challenges from the outset.
    • Keeping notes of all contacts with the WCB.
    • Developing a return to work plan.
    • Not contacting employee's physician.
    • Ensuring confidentiality of medical files.

    Appeals

    • Workers, dependents, or employers who disagree with a decision can request a review.
    • BC review requests have a 90-day limitation.
    • WCB Appeals Commissions are independent of WC Boards.

    Privacy Inside and Outside the Workplace

    • Privacy of personal information is a growing concern.
    • In the past, privacy was maintained due to practical difficulties in storing and compiling sensitive information.
    • Today, employers may be vicariously liable for privacy violations committed by their employees in the course of their job duties.
    • PIPEDA (federal) and PIPA (provincial) legislation regulates personal information.

    What is "Personal Information"?

    • Information that identifies an individual (age, sex, ethnic background, opinions, photographs).
    • Includes identifiers such as ID numbers, addresses, phone numbers, email addresses and web browsing history.
    • Includes financial data (purchasing/spending habits, income, credit records, loans).
    • Includes workplace data (disciplinary actions, employee files, pay, benefits records).
    • Includes medical data (blood type, medical records).

    Freedom of Information and Protection of Privacy Act (FOIPPA)

    • Provides individuals with the right to request access to information held by public bodies (government departments, agencies, boards, commissions, etc.).
    • Public bodies are subject to regulations that control the use and disclosure of personal information.
    • The right of access is balanced with the need to protect individual privacy.
    • Individuals can request corrections to personal information.
    • Individuals may complain to the Privacy Commissioner if they believe their information was handled inappropriately.

    PIPEDA: Who's Covered?

    • PIPEDA (Jan. 1, 2001) governs personal information held by private sector organizations.
    • It applies to employee and customer data within federally regulated industries.
    • Similar provincial legislation exists (e.g., Personal Information Protection Act (PIPA) in Alberta and BC).

    PIPEDA: Some Recent Amendments

    • The federal Digital Privacy Act (June 18, 2015) updated PIPEDA.
    • Key changes include broadened definitions of personal information, requirements for reporting security breaches, and expanded third-party disclosure rules in cases involving fraud or illegality.

    Privacy: 10 Principles

    • Key principles for handling personal information from a privacy perspective with emphasis on accountability, purpose identification, consent, limited collection, and use/retention restrictions.
    • Other principles include those related to accurate information, safeguards to protect information, open privacy policies, individuals access, and recourse availability.

    Personal Information Protection Act (PIPA)

    • British Columbia enacted PIPA (2003) and Alberta enacted PIPA (2004) – these are similar to federal PIPEDA and regulate information held by specific organizations in the private sector
    • These Acts include rules regarding employee personal information and are currently under review in both provinces.
    • Defines covered entities.

    PIPA: Who's Covered?

    • Defined covered entities under provincial legislation (non-profit organizations, trade unions, private schools, corporations, partnerships, unincorporated associations, professional regulatory associations).
    • Individuals acting in a commercial capacity are also covered.
    • Organizations acting in behalf of the above are also covered.

    PIPA: Principles

    • Governs the collection, use, and disclosure of personal information by private sector organizations.
    • Includes the concept of protecting personal information, and the need of private sector organizations to collect, use, and disclose personal information for reasonable purposes
    • Includes rules for private sector organizations involved in commercial transactions or activities
    • Covers personal information about employees.

    PIPA: Principles (cont'd)

    • Individuals can request access to and correction of their personal information.
    • Individuals can complain to the commissioner about privacy violations including computer monitoring.
    • The commissioner reviews decisions by private sector organizations refusing access to or correcting information and hears complaints against information breaches.

    Privacy: Steps to Compliance

    • Recommendations for organizations to comply with privacy legislation, such as appointing a Chief Privacy Officer and developing comprehensive policies and procedures.
    • Includes procedures for data collection, storage, retention, use, and disclosure for employees, customers, suppliers, etc.
    • Training staff on privacy procedures.

    Resignation and Retirement

    • Resignation should be formally accepted by the employer. Voluntary resignation should be distinguished from situations of imposed resignation.
    • Employees should be given reasonable advance notice.
    • There is statutory and common law related to notice requirements, however certain circumstances may trigger statutory requirements to provide additional notice.
    • Considerations regarding employee expertise and roles may lead to adjustments of notice requirements.
    • Statutory requirements regarding notice do not apply in situations when notice isn't appropriate (e.g., where the dismissal is related to performance issues not considered "just cause", or where the employee has chosen not to continue working).
    • Employers should carefully document reasons for termination as part of dispute resolution. This can help in situations of wrongful dismissal claims.
    • Early retirement, when offered, should be presented neutrally and not by the employee's immediate supervisor.

    Dismissal Without Cause

    • If there is no just cause for dismissal, employers must provide reasonable notice to terminated employees or provide pay in lieu of notice.
    • Minimum standards for notice are usually lower than what is considered reasonable notice.
    • The notice period permits employees time to look for new employment.
    • Employees can receive additional remedies if they were wrongfully dismissed, as per ESC/ESA-related guidelines or through a court case.
    • There are time limitations, set by province, in pursuing legal action for wrongful dismissal.

    Minimum Statutory Requirements: Notice/Pay

    • Employees with more than three months of employment are entitled to notice or compensation.
    • Layoffs are excluded, potentially, from the notice requirements.
    • Employees have the right to have their terms and conditions of employment not be changed after a notice of termination has been issued.
    • There may be exceptions to notice that can be relevant for jurisdictions like Alberta and British Columbia (e.g., probation periods, task-specific roles, or if dismissal is for "just cause").

    Minimum Statutory Requirements: Temporary Layoff

    • Temporary layoffs with intent to recall are treated differently.
    • Layoffs lasting more than 60 days in Alberta and two months in BC typically require termination pay with notice.
    • Collective agreements may cover additional notice considerations for longer layoff periods.
    • In both provinces, weeks where employees earn under 50% of their regular wages are considered layoffs.

    Minimum Statutory Requirements: Continuity of Employment

    • Employment is considered continuous if the business continues to opertate after sale.
    • If the employer is different than the original, notice guidelines apply from the date the employee started working with the new company.
    • A gap of employment of over three months may be an exception to the definition of continuity.

    Minimum Statutory Requirements: Communicating Notice

    • Termination notice must be in writing.
    • Notice must be delivered in person, via mail, fax, or through email.
    • Employers may not alter terms/conditions or reduce pay after notification has been issued.

    Minimum Statutory Requirements: Calculating Notice-Alberta

    • The prescribed notice periods are dependent upon the period of time that the employee has been working for the company.
    • Specific period durations are defined in the Alberta ESC, which are relative to the number of months an employee has worked.

    Minimum Statutory Requirements: Calculating CLOS/Notice-BC

    • The prescribed notice periods (CLOS/Notice) for terminated employees in BC depend on the period of time worked.
    • Specific duration is defined in the BC ESA and are relative to the number of months and years an employee has worked. Period durations are defined.

    Common Law Reasonable Notice

    • Common law notice periods are generally longer than statutory minimums.
    • Length of service, position, compensation level, and availability of similar jobs are factors in determining reasonable notice.

    Which is Better: Working Notice or Pay in lieu of Notice?

    • Working notice is often cost-efficient for employers especially in economic downturns.
    • Terminations in these situations respect the employees as they offer the necessary time to search for new employment.
    • Working notice isn't generally appropriate for performance-related dismissals as the employee needs to continue working to address performance concerns.

    Structuring a Separation Package

    • Lump sums should account for both minimum standards and common law notice requirements.
    • Employees may prefer lump sum compensation and negotiate for less compensation in salary during the notice period.
    • Payment should account for all entitlements inclusive of the payment of salary and benefits during the notice period.
    • Employees should receive payment of all compensation and benefits during the notice period, or until they find new employment.
    • Employee release is issued when full compensation and benefits are paid.

    Minimum Statutory Requirements: Mass Terminations

    • Alberta and BC have different guidelines for mass terminations.
    • Specific notice periods are mandated for the dismissal of 50+ employees in Alberta and BC in specific two-month and four-week periods.

    Minimum Statutory Requirements: Exceptions to Notice Requirements

    • There are exceptions to the statutory notice requirements, such as probationary periods, specific task-oriented or term or contract-based periods, temporary layoffs due to a temporary economic downturn-related situation, just cause or termination, or refusal of reasonable alternative work, post-recall return-to-work periods.
    • Employees that engage in strikes or lockouts.
    • Casual employees.
    • Cases involving frustration of contract.
    • Seasonal work.
    • Employee quitting their position.

    Wrongful Dismissal

    • Workers can claim wrongful dismissal if the employer lacks sufficient cause or does not provide reasonable notice or compensation. There is no prevention of wrongful dismissal if notice period or compensation requirements, according to legislation, are met.
    • Workers have two years to pursue legal claims in court.
    • Court types have different limits in the jurisdictions within Alberta and British Columbia.

    Reasonable Notice Damages: Basic Entitlements

    • Entitlements can be based on the contract's terms and conditions at termination time.
    • Entitlements include compensation, benefits, club memberships, meal expenses, company vehicles, insurance (life, disability, dental, etc.).
    • Compensation may include bonuses, stock options and pension benefits.

    Wrongful Dismissal: Other Types of Damages

    • Reasonable notice damages should be determined according to the facts.
    • Moral damages (or aggravated damages) may be awarded if employer conduct is judged to be unfair or inappropriate.
    • Punitive damages could be awarded for egregious conduct.

    Bad Faith Dismissal

    • Bad faith dismissal is characterized by untrue, misleading, or humiliating conduct.
    • Examples include false accusations of cause or incompetency, harming an employee's reputation or causing embarrassment, harassing behaviour(including sexual harassment) prior to dismissal of an employee, dismissal related to disability, or dismissal in retaliation of any employee action.

    Duty to Mitigate

    • Under common law, employees have a duty to mitigate damages by seeking comparable work.
    • Employers bear the onus of proving the employee failed to mitigate damages.
    • This includes demonstrating comparable jobs were available and that the employee did not suitably pursue them.

    Constructive Dismissal

    • Constructive dismissal occurs when employer actions significantly change the employment contract which is detrimental to the employee, without providing reasonable notice.
    • This occurs when the employer's conduct signals a desire to end the employment contract.
    • A reasonable person would find the changes unreasonable under the circumstances.
    • Examples include substantial changes in duties, geographic relocations and travel time, changes to work hours and schedules, or a hostile work environment.
    • Employees can resign and pursue a claim if they experience constructive dismissal.

    Avoiding Wrongful Dismissal Claims

    • Hiring carefully, with due consideration for any legal requirements in the jurisdiction.
    • Creating and maintaining accurate records regarding employment terminations.
    • Consistent application of written policies and procedures when handling termination and dismissal processes.

    Dismissal With Cause

    • Just cause for dismissal occurs when an employee breaches the employment contract so severely that the employer's obligations related to notice or pay aren't in effect.
    • Near cause for dismissal occurs when an employee demonstrates misconduct or incompetence, but the specific action doesn't meet the requirements of just cause.

    Overview of Just Cause Requirements

    • Just cause for dismissal is a significant breach of contract, therefore the employer's obligations (notice or pay in lieu) aren't in effect.
    • Near cause refers to incidents of misconduct or incompetence that don't immediately require termination, therefore employer obligations (notice or pay in lieu) still apply, and dismissal is not required.
    • Sanctions related to misconduct requirements should be proportionate.
    • Specific acts of misconduct potentially leading to cause dismissal may not require repeated action, yet the more frequent the actions related to the misconduct the stronger the cause for dismissal.
    • Due processes and procedures related to workplace dispute resolution should be followed.
    • Fair processes and procedures must be applied during investigation and resolution to ensure that a justified cause dismissal decision can be made.

    Establishing Just Cause Under the Common Law

    • Defines specific examples of conduct under common law that could justify dismissal (dishonesty, insubordination, incompatibility, off-duty conduct, conflict of interest, disobedience, absenteeism and lateness, sexual harassment, psychological harassment, intoxication, substance abuse).

    Grounds That Cannot Constitute Just Cause

    • Rights of an employee to assert statutory rights related to workplace disputes and other employment-related issues.
    • Include Human Rights Code considerations, pay equity acts related requirements, rights to engage in union activities, etc.

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