Sources of Employment Law PDF 2021

1 Sources of Employment Law Statute law—authored by Parliament and 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. ...

1 Sources of Employment Law Statute law—authored by Parliament and 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.  2 Statute Law: How it is Made Public Bills First reading: introduction by Cabinet minister 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.  3 Statute Law: How it is Made (cont’d) Private Bills Non-public matters are covered, such as changes to corporate charters Private Members’ Bills, a.k.a. Members’ Bills Public matters are covered A private member of the legislature (MLA) introduces the bill A private member is not a cabinet minister: a “backbencher” in the ruling party, or a member of an opposition party Its chances of being passed are low Copyright © 2021 Emond Montgomery Publications. All rights reserved.  4 Statute Law: Acts and Regulations Statutes (also referred to as Acts) contain the main requirements of the law Regulations contain the detailed requirements and can be changed without amending the statute Together, statutes and regulations are called “legislation” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  5 Statute Law: Jurisdiction and Interpretation Judges and members of administrative tribunals interpret legislation while adjudicating cases Jurisdiction: The authority to interpret legislation is established by the statute; establishes: 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.  6 Statute Law: Rules for Interpretation of Statutes Mischief Rule What problem was the statute originally intended to address? Internal Aids What does the preamble to the statute say? Definitions within statute of terms External Aids What do scholarly articles and dictionaries suggest? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  7 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 Provincial government: covers about 90 percent of employees Federal government: covers 10 percent of employees working in industries of “national importance” such as banking, shipping, and broadcasting Under delegated authority granted by provincial legislation, municipalities can also pass laws (“bylaws”) that affect employers and employees Copyright © 2021 Emond Montgomery Publications. All rights reserved.  8 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.  9 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.  10 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.  11 Canadian Charter of Rights and Freedoms (cont’d) 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.  12 Vriend v Alberta 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 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? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  13 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) Infringement of individual rights may be allowed (s 1) where the infringement is a “reasonable limit in a free and democratic society” (e.g., R v Oakes—see page 15) Notwithstanding clause (s 33) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  14 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 Principles of the common law include: Stare decisis Binding Persuasive Distinguishable Watershed decisions Copyright © 2021 Emond Montgomery Publications. All rights reserved.  15 Common Law and Employment Two main branches of the common law affect employment: 1. Contract Law: 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 2. Tort Law: provides a remedy for a civil wrong other than a breach of contract, such as defamation, negligence, 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.  16 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.  17 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.  18 Twin Pillars of Individual Employment Law 1. Common Law 2. Employment-related legislation (statutes and regulations): “floor” rights and mechanisms for enforcement Legislation will either be provincial or federal Copyright © 2021 Emond Montgomery Publications. All rights reserved.  19 Areas of Common Law Liability 1. Misrepresentation by candidates 2. Wrongful hiring: negligent misrepresentation 3. Inducement: aggressive recruiting (enticing from secure employment) 4. Restrictive covenants (including non- competition, confidentiality and non-solicitation) 5. Anticipatory breach of contract 6. Background checking: negligent hiring 7. Inducing breach of contract Copyright © 2021 Emond Montgomery Publications. All rights reserved.  20 Misrepresentation by Job Candidates May be just cause for dismissal if it: seriously prejudices the employer, or indicates material untrustworthiness Minor misstatements, even deliberate ones that do not induce the employer to hire the applicant, do not justify dismissal Copyright © 2021 Emond Montgomery Publications. All rights reserved.  21 Misrepresentation: Wrongful Hiring Negligent misrepresentation: Queen v Cognos Inc Where parties have a special relationship (i.e. one party has superior expertise and knowledge that it can foresee the other party relying upon). The knowledgeable party innocently makes a statement of fact that is inaccurate. The knowledgeable party did not take reasonable care to verify its accuracy. The other party reasonably relied upon the information to make a decision. The other party is damaged by the misrepresentation (“relies to their detriment”). Copyright © 2021 Emond Montgomery Publications. All rights reserved.  22 Misrepresentation: Wrongful Hiring (cont’d) Fraudulent misrepresentation: Where one side makes a statement of fact that it knows to be untrue, and the other party relies on it to their detriment Copyright © 2021 Emond Montgomery Publications. All rights reserved.  23 Use of Executive/recruitment Firm Misrepresentations Employer is still liable for any: breaches, misrepresentation, or inducements. Search firm is “acting on behalf of” the employer How to reduce exposure: Careful selection of firm Set boundaries and guidelines including an expectation firm will abide by all laws Get search firm to provide indemnity Copyright © 2021 Emond Montgomery Publications. All rights reserved.  24 Inducement (Allurement, Enticement) Inducement: Aggressive recruiting techniques or inflated promises that lure employee to new job Result: Longer notice of termination period Additional damages may be awarded for the tort of allurement—compensate employee for lost earnings, costs of moving, or buying a new home. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  25 Restrictive Covenants The former employee is barred from certain actions where there exists a valid Restrictive Covenant An “express” term of employment An Agreement prevents employees and former employees from: Exploiting the employer’s client relationships, trade secrets, confidential info, and goodwill Competing with the employer Applies during employment and after the employment relationship has ended (called a “post-employment obligation”) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  26 Restrictive Covenants (cont’d) Some examples: 1. Confidentiality 2. Non-compete 3. Non-solicit (both of clients and employees) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  27 Restrictive Covenants: Three-Way Balance Public interest: Free competition and labour mobility Employee interest: Employer interest: To use their knowledge, skill, and expertise to To protect its business secure employment Copyright © 2021 Emond Montgomery Publications. All rights reserved.  28 Restrictive Covenants (cont’d) Any restrictive covenant is void as being a restraint of trade unless all of the following conditions are met: 1. Protects a legitimate proprietary interest of the employer that is worthy of protection Firm-specific, not just general expertise and skills 2. Reasonable in terms of duration and geographic location Only where competition exists for the employer’s product Only so long as it takes for the employer to recover 3. Must not be contrary to the public interest Should not be overly broad or restrictive Copyright © 2021 Emond Montgomery Publications. All rights reserved.  29 Restrictive Covenants (cont’d) Onus (i.e. burden of proof) is on the employer to prove reasonableness and validity Any doubts are resolved in favour of the employee Reflecting appreciation for the disequilibrium in bargaining power Note: An otherwise valid restrictive covenant ceases to bind an employee if they are found to have been wrongfully dismissed Copyright © 2021 Emond Montgomery Publications. All rights reserved.  30 Anticipatory Breach of Contract Either employer or employee may be liable if it breaks (repudiates) the employment contract before employment begins If plans change and there is no longer a position: 1. Where there has been an offer and acceptance (written or verbal) 2. Where there is no cause for withdrawing the offer 3. Where the breach is not the result of “Frustration” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  31 Background Checks (Negligent Hiring) Background checks should be completed at least to the extent necessary to avoid a claim that the employer could have reasonably prevented a foreseeable harm to a third party Employment references Educational and professional credentials Credit Police records Internet and social media Copyright © 2021 Emond Montgomery Publications. All rights reserved.  32 Defining the Relationship: Tests for Determining Status Copyright © 2021 Emond Montgomery Publications. All rights reserved.  33 Employee vs Independent Contractor Growing trend towards independent contractors Common issue in employment setting, particularly non-union Much protective employment legislation (Employment Standards, Min. Wage, etc.) applies only to employment relationships Human Rights and Occupational Health and Safety Acts apply to both Copyright © 2021 Emond Montgomery Publications. All rights reserved.  34 Independent Contractor (IC) Independent contractors are self-employed / independently employed workers engaged to perform specific work Increasingly popular alternative to hiring an employee They are NOT employees of the business Legal distinction is important and often difficult to make Copyright © 2021 Emond Montgomery Publications. All rights reserved.  35 Independent Contractor (cont’d) Advantages for employer included in contract: No statutory remittances IC not entitled to employment standards protections No common-law wrongful dismissal claims Advantages for IC included: Tax breaks More flexibility to work for others Copyright © 2021 Emond Montgomery Publications. All rights reserved.  36 Methods/Tests for Determining Status 1. Control test Who supervises/controls the “when” and “where” of work? An important consideration 2. Risk test Does the worker have a financial investment in the business, so that there is an opportunity for profit or risk of loss? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  37 Methods/Tests for Determining Status (cont’d) 3. Organization test Are the services provided integral or ancillary to the business? 4. Ownership test Who owns the tools? This factor is instructive but not conclusive Copyright © 2021 Emond Montgomery Publications. All rights reserved.  38 Some Steps to Minimize Risk of IC Being Deemed an Employee Clearly written contract IC can work offsite identifying IC status Allow right to accept or refuse No statutory deductions work or ESC standards such Have IC purchase own as vacation pay, etc. insurance Indemnity clause No formal performance Allow IC to work for reviews as with employees others IC should incorporate Avoid setting hours Minimize integration into organization Copyright © 2021 Emond Montgomery Publications. All rights reserved.  39 Use of Temporary Employment Agencies “Leasing” individuals/personnel is a growing trend, cutting across the spectrum of corporate positions Expect this trend to accelerate in both the public and private sectors as organizations adapt to new business models made possible by: advances in technology and the trend to outsourcing non-core functions Copyright © 2021 Emond Montgomery Publications. All rights reserved.  40 Liability of Client Organization What counts to the courts: The ultimate source of remuneration (who carries the ultimate economic burden to ensure that there are funds to honour the cheque), not just who signs the cheque (e.g. a temp agency) Other relevant factors include: Who exercises daily control? Who has the real responsibility for hiring, disciplining, and dismissing employees? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  41 Types of Employees Generally speaking, there is no formal legal distinction between employees based on hours of work. However, organizations often refer to the following categories of employees: Full-time Part-time Temporary (“contract position”) Casual Agency (“acting on behalf of another”) Copyright © 2021 Emond Montgomery Publications. All rights reserved.