Employment Law For Business And Human Resources Professionals PDF

Montgom ery 1 Publicatio ns. All rights reserved.  2 CHAPTER 1 Overview of Employment Law (pp 3 -28) Copyright © 2021 Emond Montgomery Publications. All rights reserved. ...

Montgom ery 1 Publicatio ns. All rights reserved.  2 CHAPTER 1 Overview of Employment Law (pp 3 -28) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  3 Objectives Identify the three main sources of employment law Consider how and why employment law changes. Explain to whom federal, as opposed to provincial, legislation applies and why. Discuss the relevance of the Charter of Rights and Freedoms. Locate relevant statute and case law. Describe when the court system (as opposed to the administrative system) is used to resolve employment disputes. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  4 Main Sources of Employment Law Statute law—created and passed by Parliament and provincial legislatures Constitutional Law—the Canadian Charter of Rights and Freedoms Common law—based on written decisions of judges Copyright © 2021 Emond Montgomery Publications. All rights reserved.  5 Employment Law Statutes Statutes passed to protect workers because of the power differential between employer and employee Minimum Standards: wages, hours of work, vacation, safety, age Recently there has been an expansion of workers protections: anti discrimination, anti-harassment, expanded leaves to enable supportive care for family members, privacy protection Copyright © 2021 Emond Montgomery Publications. All rights reserved.  6 Statute Law: How it is Made 1. Public Bills (most common) First reading: Bill is introduction by Cabinet minister of party in power Second reading: Debate of the bill in principle leading to a legislative vote If it passes, a legislative committee discusses it clause by clause Third reading: final vote by legislature Royal assent: upon signature by the Lieutenant Governor, the bill becomes a statute Copyright © 2021 Emond Montgomery Publications. All rights reserved.  7 Statute Law: How it is Made (cont’d) 2. Private Bills Non-public matters are covered, such as changes to corporate charters (not relevant to this course) 3. Private Members’ Bills, a.k.a. Members’ Bills Public matters are covered A private member of the legislature (MLA) introduces the bill (not a cabinet minister – “backbencher or member of opposition party) Its chances of being passed are low Copyright © 2021 Emond Montgomery Publications. All rights reserved.  8 Statute Law: Acts and Regulations Statutes – (or “Acts”) contain the main requirements of the law Regulations contain detailed requirements and can be changed without amending the statute Regulations are “subordinate legislation” Statutes and regulations are collectively called “legislation” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  9 Statute Law: Jurisdiction and Interpretation Judges and members of administrative tribunals interpret legislation when they adjudicate ‘cases’ Jurisdiction: The authority of the court or administrative tribunal to interpret legislation is established by the statute Who can adjudicate The issues that can be adjudicated The geographic region to which the statute applies Several statutes may apply to a single situation Copyright © 2021 Emond Montgomery Publications. All rights reserved.  10 Statute Law: Rules for Interpretation of Statutes 1. Mischief Rule What problem was the statute originally intended to address? 2. Internal Aids What does the preamble to the statute say? Definitions within statute of terms 3. External Aids What do scholarly articles and dictionaries suggest? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  11 Court uses Mischief Rule to Interpret Statute 1254582 Alberta Ltd. v Miscellaneous Employees Teamsters Local Union 987 of Alberta, 2009 ABQB 127 Union sought to become bargaining unit for airport taxi drivers in Edmonton; certification application was made to the Alberta Labour Relations Board under the Alberta Labour Relations Code Issue: were the ATS drivers ‘employees’ for purposes of the Code; do passenger fares qualify as ‘wages’? (YES) ATS controls the taxi queue, # of drivers, vacation leaves, car use and the terms of the relationship Mischief Rule was used to establish that the proper classification was that of employees Copyright © 2021 Emond Montgomery Publications. All rights reserved.  12 Court uses Mischief Rule to Interpret Statute Mischief Rule cont. Most legislative schemes that distinguish between employees and independent contractors are directed at providing benefits to employees. “Everyone is aware that it is to the benefit of employers to outsource work traditionally undertaken by employees and this is the mischief that decision makers must consider.” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  13 Lori’s ‘FIRA’ Approach to Legal Analysis Facts Issue(s) Rule(s) Analysis Please jot this down and keep in mind as we work through the course. Use this framework to answer questions in the textbook and long-answer exam questions. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  14 Authority to Pass Legislation According to the terms of the British North America Act (now called Constitution Act, 1867), Canada is a federal state with two levels of government but there are functionally three levels 1. Provincial government: cover about 90 percent of employees 2. Federal government: covers approximately 6% of employees working in industries of “national importance” such as banking, shipping, and broadcasting 3. Municipal government: Under delegated authority granted by provincial legislation, municipalities (‘Municipal Governments’) can also pass laws (called “bylaws”) that affect employers and employees (e.g. smoking) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  15 Key Employment Statutes Alberta (AB) British Columbia (BC) Employment Standards Code Employment Standards Act Human Rights Act Human Rights Code Labour Relations Code Labour Relations Code Occupational Health and Occupational Health & Safety Safety Act & Regulation Regulation Workers’ Compensation Act Workers’ Compensation Act Personal Information Personal Information Protection Act Protection Act Copyright © 2021 Emond Montgomery Publications. All rights reserved.  16 Key Federal Employment Statutes Canada Labour Code Canadian Human Rights Act Employment Equity Act Personal Information Protection and Electronic Documents Act (PIPEDA) Canada Pension Plan Employment Insurance Act Copyright © 2021 Emond Montgomery Publications. All rights reserved.  17 Canadian Charter of Rights and Freedoms Passed in 1982, the Charter sets out a broad range of rights, including equality rights It only applies where there is an element of government activity It is “supreme law”—meaning that it can override any legislation or government action that is inconsistent with its principles Copyright © 2021 Emond Montgomery Publications. All rights reserved.  18 Canadian Charter of Rights and Freedoms (cont’d) For employment law, a key provision is Section 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability Copyright © 2021 Emond Montgomery Publications. All rights reserved.  19 The Supreme Court of Canada Takes and Expansive Approach to Equality rights Vriend v Alberta, 1 SCR 493 Facts: Delwin Vriend was a teacher at a Christian college in Alberta who had consistently received positive performance evaluations. When the college found out he was gay, he was terminated. The Alberta Human Rights Commission did not accept his claim because sexual orientation was not a protected ground in Alberta’s human rights legislation. Issue: Was the omission of sexual orientation as a prohibited ground of discrimination in Alberta a violation of Section 15 of the Charter and therefore unconstitutional? [YES] Held: Sexual orientation should be ‘read in’’ to Alberta’s Human Rights Act as a protected ground. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  20 The Charter’s Effect on Employment Law An employment law may be challenged on the basis that it violates a right or freedom guaranteed by the Charter (e.g., M v H—see page 14, relevant re gender neutral spousal benefits) Infringement of individual rights may be allowed (Charter, s1) where the infringement is a “reasonable limit in a free and democratic society” (e.g., R v Oakes—see page 15) Notwithstanding clause (Charter, s 33) – override provision that govt can use to pass infringing legislation Copyright © 2021 Emond Montgomery Publications. All rights reserved.  21 Oake’s Test Legal test used by courts to determine if a law that limits a Charter right is reasonable and thereby ‘saved’ by section 1. Pressing and substantial government objective The means chosen to achieve the objective are proportional and rationally connected The Charter right is minimally impaired (as little as possible) The benefits of the limit outweigh the harmful effects. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  22 The Common Law Judge-made law is a separate source of law from statute law and is “residual” in nature Common law decisions are based on precedent (‘Stare Decisis’) Depending on the court hierarchy and the facts of the cases, precents can be binding, persuasive or distinguishable A watershed decision is one that is significant in defining (or re-defining) an issue’s status under the law. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  23 Common Law and Employment (I) Two main branches of the common law impact employment: 1. Contract Law: body of law that governs agreements between people or companies to purchase or sell goods & services to be valid, an agreement requires an offer, acceptance, and consideration Damages may be awarded to put plaintiffs in the same position they would be in if the contract had not been breached Implied terms are assumed to be part of an employment agreement even if not written Copyright © 2021 Emond Montgomery Publications. All rights reserved.  24 Common Law and Employment (II) 2. Tort Law: the branch of civil law relating to private, non- criminal wrongs (negligent or intentional) that one person or company causes to another (with no contract required) Need to show: Duty of care, Breach of duty, Causation, Harm provides damages for wrongs including defamation, negligent misrepresentation, or assault Damages may be awarded for losses suffered as a result of the defendant’s conduct Copyright © 2021 Emond Montgomery Publications. All rights reserved.  25 Hierarchical Court System Supreme Court of Canada Court of Appeal Superior Courts Special Jurisdiction Courts Administrative Tribunals Most employment statutes are administered by specialized commissions and boards Specialized tribunals interpret and enforce the statutes Copyright © 2021 Emond Montgomery Publications. All rights reserved.  26 Figure 1.1 – Pyramid of Laws Copyright © 2021 Emond Montgomery Publications. All rights reserved.  27 Figure 1.2 – The Structure of Federal and Provincial Courts of Law Copyright © 2021 Emond Montgomery Publications. All rights reserved.  28 Administrative Tribunals Definition: a Quasi-judicial authority whose rules are typically governed by a subject specific statute Tribunals have primary jurisdiction over most employment matters except wrongful dismissal They act in a ‘quasi-judicial manner’ they observe rules of procedural fairness and provide a full hearing but they are less formal than courts; members are experts in employment matters Copyright © 2021 Emond Montgomery Publications. All rights reserved.  29 Locating Employment Laws http://laws.justice.gc.ca Federal Department of Justice website canlii.org Canadian Legal Information Institute www.qp.alberta.ca/laws_online.cfm www.bclaws.ca Digests, textbooks, loose leaf reporting services, newsletters Copyright © 2021 Emond Montgomery Publications. All rights reserved.  30 NOTICE Copyright Disclaimer This PowerPoint presentation is copyright protected. Individuals who have adopted the related Emond Publishing textbook for their course are granted permission to use this presentation for instructional purposes only. Slides may not be distributed under any kind of Open Access style license, or website, or be duplicated, copied, sold, or otherwise exploited for any commercial purpose without Emond Publishing’s express written consent. Thank you. Copyright © 2021 Emond Montgomery Publications. All rights reserved.