Employment Contracts PDF

Establishment and Modification of Employment Contracts Offer, Acceptance, and Consideration May be verbal or in writing Some agreements must be in writing (e.g. Apprenticeship Agreements) Offer must be firm and unequivocal Can be subject to a condition pre...

Establishment and Modification of Employment Contracts Offer, Acceptance, and Consideration May be verbal or in writing Some agreements must be in writing (e.g. Apprenticeship Agreements) Offer must be firm and unequivocal Can be subject to a condition precedent; if so, then both sides must act in good faith to fulfil Becomes a contract with an unequivocal and unconditional acceptance and evidence of consideration Once the contract is formed, neither party can back out without due notice or pay in lieu This is the basis for the concept of “reasonable notice” Copyright © 2021 Emond Montgomery Publications. All rights reserved. Advantages of Written Contract Well-drafted written contracts have several advantages that include: Reduced risk of misunderstandings Potential conflicts addressed at start (e.g. clauses that might limit the rights an employee might otherwise have such as a limit to their entitlement upon termination) Less uncertainty Copyright © 2021 Emond Montgomery Publications. All rights reserved. The Employment Contract Checklist Names of employer and Any required notice of employee termination Job title, brief description, Reference to any collective reporting relationships agreement Start date and (if Ownership of applicable) end date inventions/intellectual Rate and calculation of pay, property and when paid Statement about applying Terms and conditions re organizational policies hours of work, benefits Details of work location(s) commencement and Salary review timeframes accrual Restrictive Covenants Copyright © 2021 Emond Montgomery Publications. All rights reserved.  “Express” terms “Express” terms in employment contracts are generally specific for a point in time, but: Parties cannot foresee all the contingencies that may play out over the course of the employment relationship Position, brief description, basic pay, vacation, expected hours of work May also include Confidentiality Agreement, Non- solicitation, and Non-competition clauses Copyright © 2021 Emond Montgomery Publications. All rights reserved. Express Contractual Obligations When obligations are clearly expressed in the agreement, the courts enforce them literally But the courts may interpret the language contrary to the interests of the dominant party if the clause is unduly onerous on the employee If the terms are extremely one-sided then the contract may be void due to “unconscionability” and/or duress When obligations are ambiguous, the courts can rely on extrinsic evidence (e.g., past practice in interpreting the language) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Implied Contractual Obligations Some of the most fundamental and enduring obligations owed by an employee to an employer are not spelled out in a written employment contract (e.g. an employees duty of loyalty to their employer) Obligations can be oral, written, or some combination These attest to the unexpressed, factual intentions of the employer and employee as evidenced from all the surrounding circumstances Past practices, pre-contractual negotiations, customs Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms Customize—do NOT use single, standard contract for all employees; use template with options to enable customization Most jobs—key terms found in letter of hire / final contract that expressly incorporate employer’s policy manuals Key terms include: names of parties, date contract begins, position, job description, duration (if it is for a fixed term), compensation, and termination notice For more senior or specialized jobs, a more formal customized contract is advisable Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 1. Job description 2. Remuneration 3. Term—fixed or indefinite? No termination notice required if contract is for a fixed term and employment ends at end of term (subject to Employment Standards) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Common Contractual Terms (cont’d) 4. Termination clause Better to deal with it up front Clause can set out method of payment of termination pay May include notice of resignation requirement This is helpful for more senior or more difficult roles to fill Clause can set out just cause for dismissal without notice Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 5. Probationary Period: Opportunity to test the employees’ suitability Burden to end the relationship if unsuitable is lower Not implied by common law so must be specified in contract 6. Relocation: address issue if relevant Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 7. Benefits: E.g., chance to be specific on issues such as how vacation time is determined, use of company car, or reimbursement for use of own car. 8. Restrictive Covenants: Non-Disclosure Non-Solicitation Non-Compete Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (Restrictive Covenants) An “express” term of employment An agreement preventing employees and former employees from: Exploiting the employer’s client relationships, trade secrets, confidential info, goodwill Competing with the employer Applies during employment and after the employment relationship has ended Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (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 In general restrictions must only got as far as necessary to protect a legitimate business interest Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (Restrictive Covenants) (cont’d) Onus (i.e., burden of proof) is on the employer to prove 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. Common Contractual Terms (Restrictive Covenants) (cont’d) Non-competition: Do not use standard cause—go only so far as necessary to protect employer’s legitimate business interests Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 9. Intellectual Property Ownership (assignment of inventions): Also important to establish who owns client relationships in a sales environment (e.g. book of business) 10. Choice of Law: Sets out jurisdiction where any dispute under the employment contract will be heard Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 11. Corporate Policies: Ensure employees know from outset that manual contains effective contractual terms; provide employee with copy before contract signed 12. Entire Agreement: Signed contract constitutes the entire agreement between the parties; no prior conversations, previous drafts or promises are binding Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 13. Inducement/Allurement/Enticement: Will employer recognize service from former employer regarding termination notice? 14. Independent Legal Advice: Key clause which states that employee has had ample time and opportunity to seek independent advice before signing—especially important where employee not sophisticated Important to provide opportunity for such advice in situations where the contract contains a clause(s) which seek to limit the rights an employee would normally otherwise have (e.g. termination clause) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 15. Severability Clause: Clause stating that in the event that a provision in the contract is invalidated by a court, this will not affect the validity of the remainder of the agreement. 16. Golden Parachute: Executive Employment Contracts Similar to other contracts but with additional benefits, to induce the executive to act in the interests of the employer during periods of significant transition without being distracted by their personal interests 17. Implied Duty to Maintain Confidentiality Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Enforceability and Interpretation of Written Employment Contracts 1. Lack of consideration “Consideration” in law means something of value given in exchange for the other parties’ promise— otherwise it’s a gratuitous promise e.g. ASM Corrosion Control Ltd v George and Watson v Moore Corp Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Enforceability and Interpretation (cont’d) 2. Inequality of bargaining power—harsh contract terms (considered by the courts to be unconscionable) can result from employer’s dominant bargaining position and undue pressure. To prevent this the employer should: Seek reasonable balance in contract terms Give job candidate time to review draft contract and obtain independent legal advice wherever appropriate Expressly refer in contract to opportunity for independent legal advice Explain major terms, and have candidate initial them Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Enforceability and Interpretation (cont’d) 3. Obsolescence—the terms no longer reflect the employee’s position within the organization. To prevent this: Periodically review and update agreements to reflect changes in job duties Make promotions conditional on signing updated agreement Set out minimum and maximum notice provisions that apply regardless of changes in job duties Copyright © 2021 Emond Montgomery Publications. All rights reserved. Enforceability and Interpretation (cont’d) 4. Failure to meet minimum statutory standards: Contract terms must meet or exceed minimum statutory standards, (e.g., notice of termination requirements of Employment Standards) Otherwise, the term is unenforceable and the employer will be liable for full common law reasonable notice. e.g., Machtinger v HOJ Industries Ltd Copyright © 2021 Emond Montgomery Publications. All rights reserved. Enforceability and Interpretation (cont’d) 5. Use of ambiguous language “Contra proferentem” rule—where the terms of a contract can bear more than one possible interpretation, ambiguities will be interpreted against the drafter of the agreement (usually the employer) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  25 Key Features Sets out minimum terms and conditions of work Establishes minimum requirements for termination notice, pay Displaces common law principle that parties are free to negotiate terms and conditions of employment Close to 90% of employees in Alberta fall under the jurisdiction of the legislation, but coverage is not universal Copyright © 2021 Emond Montgomery Publications. All rights reserved.  26 Key Features (cont’d) Cannot be undercut by an employment or collective agreement Unionized employees are covered, but most significant benefits are covered by the collective agreement If employer promises a greater right or benefit promised by employer will be enforced so long as it relates to a specific benefit under the Act Enforcement is complaint-based Bind employers regardless of size Copyright © 2021 Emond Montgomery Publications. All rights reserved.  27 Record Keeping Employers required to maintain accurate written records about employees Must keep most records for three years after date the record was made All records must be readily available for inspection by an Employment Standards Officer May protect employer from unjustified claims Copyright © 2021 Emond Montgomery Publications. All rights reserved.  28 Wages Employer must establish regular pay period and pay day Partial payment is prohibited Cash, cheque, or direct deposit acceptable Five types of deductions allowed: 1. Statutory deductions (e.g. income tax) 2. Court-ordered deductions Copyright © 2021 Emond Montgomery Publications. All rights reserved.  29 Wages (cont’d) 3. Authorized by a collective agreement 4. With specific written authorization 5. Recovery of wage advance or overpayment In Alberta, when employment ends If notice given, payment must be made within 3 days If no notice from employee, payment must be within 10 days Copyright © 2021 Emond Montgomery Publications. All rights reserved.  30 Minimum Employment Standards Minimum wage Hours of work and rest Overtime Vacation, General holidays Statutory leaves of absence Rights during statutory leaves Termination rules Copyright © 2021 Emond Montgomery Publications. All rights reserved.  31 Minimum Wages Employer must pay at least the minimum wage prescribed by the regulations General and special conditions apply for specific types of workers In 2015 minimum wage in Alberta raised to $15, the highest in Canada, as of October 2020. AB has “three-hour rule” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  32 Maximum Hours of Work “Maximum hours of work” and overtime separate issues Employees may be required to work up to 12 hours/day or longer in special circumstances: Emergencies Urgent work Unforeseeable/unpreventable circumstances Permit, issued by the director of employment standards Copyright © 2021 Emond Montgomery Publications. All rights reserved.  33 Hours of Work and Rest In Alberta, employees must have at least: eight consecutive hours off work between shifts, and one day for each week or multiple, to a maximum of 24 days and then four consecutive days of rest. Can be modified to accommodate the needs of employers that operate continuous work cycles Consideration for refusals to work on a specified day for religious reasons Copyright © 2021 Emond Montgomery Publications. All rights reserved.  34 Eating Periods and Coffee Breaks Eating periods Coffee breaks In Alberta, ½ hour every five Employer under no statutory hours, with or without pay obligation to provide coffee If unpaid, employee is not breaks required to stay on premises If given, employer must pay Employer may require the for that time and the employee to work longer employee is required to without a break in some remain at the workplace circumstances Copyright © 2021 Emond Montgomery Publications. All rights reserved.  35 Overtime Pay Separate from hours of work In Alberta, basic 8/44 rule At a minimum, employers must pay 1.5x the regular rate for all hours worked beyond 8 hours on each workday or 44 hours in the workweek Some jobs exempt from overtime pay List of occupations provided by Employment Standards Registration Copyright © 2021 Emond Montgomery Publications. All rights reserved.  36 Banking of Overtime An employer and employee may agree to receive paid time off work instead of overtime pay Employee may receive 1 paid hour off work (“straight time”) for each hour of overtime worked instead of pay If time off not provided or taken within three months, then the employee must be paid 1.5x overtime pay (some exceptions apply) Copyright © 2021 Emond Montgomery Publications. All right reserved.  37 Annual Vacation Employee must have accrued at least 12 months continuous service with employer Entitlement starts at 2 weeks and increases to 3 weeks after 5 years of qualifying seniority May be reduced in proportion to the number of days that the employee is absent from work, including maternity, parental, and other leaves Copyright © 2021 Emond Montgomery Publications. All rights reserved.  38 Annual Vacation (cont’d) In some cases (e.g. seasonal plant shutdown) employer is entitled to determine when vacation must be taken To reduce the cost of administering annual vacation, employers can designate a common anniversary date. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  39 Vacation Pay At least equal to 4% of wages earned during the 12 month period for which the vacation pay is given In Alberta, to determine vacation pay, “wages” do not include overtime earnings (unless an overtime agreement is in effect), general holiday pay, pay in lieu of termination notice, and unearned bonuses Copyright © 2021 Emond Montgomery Publications. All rights reserved.  40 General Holidays In Alberta, there are 9 general holidays Plus any other day designated by regulation Parties may substitute alternate days off if majority of employees and the employer agree Most employees eligible Employees do not lose their right to a general holiday if it falls during their vacation Copyright © 2021 Emond Montgomery Publications. All rights reserved.  41 General Holidays (cont’d) General holiday pay must be equal to at least the amount of an average day’s pay (s. 28) If an employer asks an employee to work on a general holiday, the employee is entitled to: 1.5x employee’s regular wage (up to 12 hours), plus the employee’s average day’s pay; or employee’s regular hourly wage rate for each hour worked, plus one day’s holiday Copyright © 2021 Emond Montgomery Publications. All rights reserved.  42 Maternity Leave In Alberta, 16 weeks Paid by Federal government through EI Leave can commence up to 13 weeks before anticipated delivery date Must include at least 6 weeks immediately following the birth Unless the mother can obtain a medical certificate Copyright © 2021 Emond Montgomery Publications. All rights reserved.  43 Maternity Leave (cont’d) Minimum 90 days continuous employment with the employer to qualify Employee must normally give 6 weeks advance notice Must be taken consecutively Can be extended if the infant’s medical condition requires continued care from the mother Copyright © 2021 Emond Montgomery Publications. All rights reserved.  44 Parental Leave In Alberta: up to additional 37 consecutive weeks within 53 weeks after birth or adoption placement Applies to both parents, but not at the same time Minimum 90 days continuous employment Not paid by employer under Employment Standards Act but employees may be able to claim under the Employment Insurance Act Copyright © 2021 Emond Montgomery Publications. All rights reserved.  45 Maternity and Parental Leave Employer prohibited from terminating or laying off employee during leave Unless business is discontinued Employee must provide written notice at least 4 weeks before resume date Copyright © 2021 Emond Montgomery Publications. All rights reserved.  46 Reservist Leave For members of reserve force of the Canadian Forces Requires at least 26 consecutive weeks of employment with employer to qualify Provides unpaid, job-protected leave: when deployed; and up to 20 days per year for annual training. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  47 Reservist Leave (cont’d) Employees must provide 4 weeks notice Employers cannot terminate employee on leave Employer must reinstate employee to position occupied or comparable Copyright © 2021 Emond Montgomery Publications. All rights reserved.  48 Compassionate Care Leave For primary caregiver of ill family member, up to 27 weeks’ unpaid, job-protected Need certificate from a qualified health practitioner Requires 90+ days employment with employer to qualify Copyright © 2021 Emond Montgomery Publications. All rights reserved.  49 Compassionate Care Leave (cont’d) Dovetails with EI’s compassionate care leave Employees must provide 2 weeks notice Employers cannot terminate employee on leave Employer must reinstate employee to position occupied or comparable Copyright © 2021 Emond Montgomery Publications. All rights reserved.  50 Other Leaves Disappearance of child leave Critical illness of a child leave Long-Term Illness and Injury leave Domestic Violence Leave Personal and Family Responsibility Leave Bereavement Leave Copyright © 2021 Emond Montgomery Publications. All rights reserved.  51 Employee Rights during Statutory Leaves Right to reinstatement Right to salary plus increases Right to retain benefits Right to vacation entitlement Right to be free from reprisals Right to accrue seniority Copyright © 2021 Emond Montgomery Publications. All rights reserved.  52 Administration and Enforcement Process begins with complaint filed to ES All are encouraged to resolve issues between parties ES Officers may mediate Where the ES officer determines complaint warrants further action, officer can escalate to director Copyright © 2021 Emond Montgomery Publications. All rights reserved.  53 Administration and Enforcement (cont’d) Director has broad powers to investigate and impose a remedy and/or penalty If director finds a contravention, will issue orders to employer If no contravention found, employee can appeal Penalties: Up to $100,000 for a corporation Up to $50,000 for an individual Copyright © 2021 Emond Montgomery Publications. All rights reserved.  54 What is Discrimination? Discrimination need not be intentional It is the result that counts, not the intent Legal test 1. The complainant has a characteristic protected by the legislation 2. The complainant experienced an adverse impact with respect to their employment 3. The protected characteristic was a factor in the adverse impact Systemic discrimination A web of policies and practices that are neutral on their face, but have discriminatory effects. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  55 Overview of the Legislation: Areas Covered Publications and notices Goods or property, services, accommodation (housing and facilities) Tenancies Employment practices including equal pay and advertisements 65% of complaints in BC and 85% of complaints in AB are about employment Membership in trade unions and occupational associations Copyright © 2020 Emond Montgomery Publications. All rights reserved.  56 Overview of the Legislation: Protected Grounds Alberta BC 1. Race 1. Race 2. Religious beliefs 2. Religion 3. Colour 3. Colour 4. Gender 4. Sex 5. Sexual orientation 5. Sexual orientation 6. Physical disability 6. Physical disability 7. Mental disability 7. Mental disability 8. Age 8. Age 9. Ancestry 9. Ancestry 10. Place of origin 10. Place of origin 11. Marital status 11. Marital status 12. Family status 12. Family status 13. Gender identity 13. Political belief 14. Gender expression 14. Criminal or summary conviction 15. Source of income unrelated to employment Copyright © 2020 Emond Montgomery Publications. All rights reserved.  57 Discrimination in Hiring Morrison v AdvoCare A male registered care aide was refused employment on two occasions Was the refusal to hire discrimination based on sex? Test for prima facie discrimination in hiring: 1. The complainant was qualified for the job 2. The complainant was not hired, and either: a) someone no better qualified but lacking the distinguishing protected characteristic obtained the position, or b) the employer continued the seek applicants with the complainant’s qualifications. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  58 Overview of the Legislation: Equal Pay for Equal Work What is required in Alberta and BC? Employees of any sex must be paid the same rate for work that is the same or substantially similar May not reduce the pay of the higher-paid employee to ensure equal pay for equal work What is not required in Alberta and BC? Pay equity—requires employers to compare totally different jobs to determine whether or not they are equal in value Currently required only in Ontario and Quebec Employment Equity—legislation that requires employers to address underrepresentation of certain groups of people (usually visible minorities) through planned hiring Currently required in the federal sector Copyright © 2020 Emond Montgomery Publications. All rights reserved.  59 Overview of the Legislation: Where Discrimination is Allowed When the “refusal, limitation, specification or preference” is based on a bona fide occupational requirement (BFOR) When an alleged contravention of the Act is “reasonable and justifiable in the circumstances” AB—special exemptions on the grounds of age and marital status for pension plans and insurance. BC—special exemptions for organizational membership where the organization is not for profit and has the aim of promoting the interests and welfare of an identifiable group Copyright © 2020 Emond Montgomery Publications. All rights reserved.  60 Overview of the Legislation: Making a Complaint 1. File within the time limit (AB: 1 year since incident; BC: 6 months since incident) 2. Application is reviewed for completeness, jurisdiction, and initial merit 3. Respondents sent a copy of the complaint and given a time limit to respond to the allegations If no response, complaint proceeds to review and orders may be made against the respondent 4. Settlement attempts (investigations may occur in AB) 5. Case is heard by a human rights tribunal Copyright © 2020 Emond Montgomery Publications. All rights reserved.  61 Overview of the Legislation: Remedies Cease the discriminatory policy or behaviour Refrain from engaging in the same acts in the future Award the complainant opportunities or privileges that were lost as a result of the discrimination Compensate the complainant for lost wages, income, or expenses Take any other action the tribunal considers proper to put the complainant in the position he or she would have been in but for the discrimination Copyright © 2020 Emond Montgomery Publications. All rights reserved.  62 Issues in Recruitment, Selection, & Hiring: Essential Requirements of the Job An employer who is recruiting should ensure a job description is: Current Accurately reflects the employer’s needs and expectations Identifies the essential requirements of the job If an essential requirement of the job negatively affects a person on a prohibited ground, the employer must accommodate to the point of “undue hardship” (for the employer) Copyright © 2020 Emond Montgomery Publications. All rights reserved.  63 Issues in Recruitment, Selection, & Hiring: Essential Requirements of the Job To be regarded as a BFOR (a standard that is necessary in spite of being discriminatory), the workplace policy, practice, or requirement must: 1. be adopted for a purpose rationally connected to the job, 2. be adopted in an honest belief that it was necessary to satisfy a legitimate business purpose, and 3. be reasonably necessary to accomplish that purpose—and it must be impossible to accommodate the individual without creating undue hardship. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  64 Issues in Recruitment, Selection, & Hiring: Use of Employment Agencies BC: Section 13(2) expressly prohibits discrimination by employment agencies Specifically: refusing to refer a candidate, based on a prohibited ground Alberta: Although employment agencies are not specifically defined in the Act, s 8(1) prohibits “any person” from advertising or circulating application forms that are discriminatory Agencies cannot accept requests, or act on requests, to hire people based on preferences related to prohibited grounds of discrimination Copyright © 2020 Emond Montgomery Publications. All rights reserved.  65 Issues in Recruitment, Selection, & Hiring: Job Advertisements Where and how a job is advertised is important Section 8(1) of the Alberta Act and Section 11 of the BC Code prohibit job ads that directly or indirectly discourage people from applying based on a prohibited ground The wording of a job ad should be geared to the qualifications and skills that are required for job performance Copyright © 2020 Emond Montgomery Publications. All rights reserved.  66 Issues in Recruitment, Selection, & Hiring: Job Application Forms The application form should Avoid discouraging candidates from applying Avoid eliciting information that directly or indirectly excludes individuals on non job-related grounds An attestation clause at the end of the form requires applicants to attest that the facts stated on the form are accurate Copyright © 2020 Emond Montgomery Publications. All rights reserved.  67 Conditional Offers of Employment No contract of employment exists when a conditional offer is made by an employer until those conditions have been fulfilled by the candidate The conditions may allow the employer to gather information from the candidate that, earlier in the recruitment process, would have been forbidden by the Act Information that should be requested only after a conditional offer: Copy of a driver’s license Work authorization from immigration Social insurance card Transcript or copy of professional credentials Requests for medical or health information Copyright © 2020 Emond Montgomery Publications. All rights reserved.  68 Issues in Recruitment, Selection, & Hiring: Pre- Employment Medical or Fitness Examinations Any form of medical testing Must be left to the conditional offer stage Must be a bona fide occupational requirement (BFOR) The employer must perform the same test on every candidate The employer must maintain confidentiality of test results Copyright © 2020 Emond Montgomery Publications. All rights reserved.  69 Issues in Recruitment, Selection, & Hiring: Pre- Employment Drug and Alcohol Testing Drug or alcohol dependence is a disability Testing in and of itself is not prohibited However, the best advice is not to conduct these tests Pre-employment screening does not measure on-the-job impairment or predict the candidate’s ability to do the job If you test and it comes back positive, it triggers: the responsibility to determine if it is due to a disability; and the requirement to accommodate to the point of undue hardship. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  70 Issues During the Course of Employment: Duty to Accommodate The following are regarded as fundamental principles of accommodation in the context of human rights law: Individualization Dignity Inclusivity Accommodation is a shared and ongoing obligation: Employer Employee Union Copyright © 2020 Emond Montgomery Publications. All rights reserved.  71 Issues During the Course of Employment: What is “Undue Hardship”? Undue hardship is not defined in legislation Occurs when accommodation creates onerous conditions, intolerable costs, or serious disruption Factors considered: Financial cost Size and resources of employer Disruption of operations Morale problems of other employees Substantial interference with rights of other individuals or groups Interchangeability of workforce and facilities Health and safety concerns Copyright © 2020 Emond Montgomery Publications. All rights reserved.  72 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability Gather medical information (with consent) to determine functional abilities Consult with employee, supervisor, union If possible, modify the employee’s current job requirements; if not, assess other available jobs Assess undue hardship of proposed accommodations Implement Monitor frequently Document all facets of the accommodation process—including: Alternatives considered Reasons the alternatives were not accepted Maintain confidentiality throughout Copyright © 2020 Emond Montgomery Publications. All rights reserved.  73 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability Essex Police Services Board v Essex Police Association Is an employer required to create a new job based on the reassigned duties of other jobs to satisfy its duty to accommodate? Is an employer required to place the employee who needs an accommodation in a position that is currently occupied by another employee? Jodoin v City of Calgary How diligent must an employer be when searching for accommodation? Copyright © 2020 Emond Montgomery Publications. All rights reserved.  74 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Substance Abuse Substance abuse is a disability Purely recreational use of drugs or alcohol is not a disability Accommodation usually means offering rehabilitation or time off to attend a program An employer is not required to accept ongoing, lengthy absences unrelated to the rehabilitation Be consistent and persistent Condoning Last chance agreements Copyright © 2020 Emond Montgomery Publications. All rights reserved.  75 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Religious Beliefs Religion or creed Dress codes Religious days off Modification of work schedules Central Alberta Dairy Pool Roosma Break policies Friesen v Fisher Bay Seafood Employee’s belief he is commanded to “preach, teach, baptise, and make disciples” unwelcome by coworkers. Is requiring an employee to refrain from preaching during work hours a BFOR? Copyright © 2020 Emond Montgomery Publications. All rights reserved.  76 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Pregnancy and Family Status Sex (pregnancy) Temporary relocation Modified duties Flexible work schedules and break times Family status What is the correct legal test for discrimination on the basis of family status? Health Sciences Association of BC v Campbell River Canada v Johnstone Does the duty to accommodate family status include eldercare? Devaney v SRV Holdings Copyright © 2020 Emond Montgomery Publications. All rights reserved.  77 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Age Social and legal shift in attitude about age discrimination Older workers may need to work for social or financial reasons Older workers make valuable contributions Previous cases justified age discrimination as justifiable for economic reasons and to ensure workforce “renewal” Mandatory retirement Douglas/Kwantlen Faculty Association v Douglas College Dickason v University of Alberta 2008 BC Code amended to prohibit mandatory retirement Association of Justices of Peace of Ontario v Ontario Mandatory retirement does not meet Charter “minimal impairment” test Copyright © 2020 Emond Montgomery Publications. All rights reserved.  78 Issues During the Course of Employment: On- the-Job Drug and Alcohol Testing Pre-employment testing is prohibited On-the-job selective testing may be carried out: Where there is reasonable suspicion of impairment Where an employee is involved in a workplace accident or incident As a part of an agreed rehabilitation or return-to-work plan Where an employee works for a trucking company that operates in the United States and compliance with American law is required Universal random testing may be carried out: If there is evidence of reasonable cause or necessity (rampant drug/alcohol use) Where the workplace is extremely dangerous (e.g. nuclear power facility) Where test result is positive, tailor sanction to fit circumstances (no automatic termination) Copyright © 2020 Emond Montgomery Publications. All rights reserved.  79 Issues During the Course of Employment: Harassment In AB and BC harassment is prohibited if associated with a protected ground The Act prohibits any public display likely to expose a person or class of persons to hatred or contempt Examples of prohibited behaviours include: Verbal or physical abuse Threats, derogatory remarks, jokes, innuendo, or taunts about appearance or belief The display of pornographic, racist, or offensive images Practical jokes that result in awkwardness or embarrassment Unwelcome invitations or requests (explicit or implied) Intimidation, leering, or other objectionable gestures Condescension or paternalism that undermines self-confidence Unwanted physical contact including touching, patting, pinching, or punching Copyright © 2020 Emond Montgomery Publications. All rights reserved.  80 Issues During the Course of Employment: Types of Harassment Poisoned work environment Comments or actions are not directed at an individual, but have made the workplace hostile or unwelcoming to them Sexual harassment Comments or actions based on sex that are unwelcome, or should be reasonably known to be unwelcome Normally requires a course of vexatious conduct rather than a single instance, unless very serious “Sexting” outside of work hours Sexual solicitation Someone in a position of authority makes unwelcome advances or requests for sexual favours The threat of reprisal or promise of reward is explicit Copyright © 2020 Emond Montgomery Publications. All rights reserved.  81 Issues During the Course of Employment: Harassment Legal standard for determining if harassment has occurred: Would a reasonable person think the conduct or comment was inappropriate? There is an onus on the person experiencing the harassment to inform the harasser that the behaviour is unwelcome Employers are legally responsible for promoting a harassment-free workplace: Commitment Well-known policies and procedures Education and awareness Processes for dealing with complaints Prompt investigation by an impartial and knowledgeable person Documentation Confidentiality Copyright © 2020 Emond Montgomery Publications. All rights reserved.  82 Issues During the Course of Employment: Employer Liability for Human Rights Violations Vicarious liability For discriminatory actions of its agents and employees in the workplace Direct liability For discriminatory actions of management Employer is liable for workplace harassment by managers but may avoid liability for non-managerial harassment if it can show: it was unaware that harassment was occurring, it was diligent in preventing the harassment, and it responded appropriately once aware of the harassment. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  83 Issues During the Course of Employment: Investigating Harassment Complaints 1. Investigate in a timely 6. Do not ask leading manner questions 2. Ensure the investigator is 7. Interview third-party unbiased witnesses 3. Give the accused a 8. Document the chance to respond investigation 4. Follow the employer’s 9. Keep and open mind policies and procedures 10. Consider the entire 5. Interview witnesses context separately Copyright © 2020 Emond Montgomery Publications. All rights reserved. The Legislation Occupational Health and Safety Code (2009). Retrieved from https://www.una.ab.ca/files/155/2009_Occupa tional_Health_and_Safety_Code_Alberta.pdf. Employment Insurance Act § 23 (1996). Retrieved from http://laws-lois.justice.gc.ca/PDF/E-5.6.pdf. © 2016, Southern Alberta Institute of Technology 84 The Purpose of Health and Safety Legislation (1 of 2) The Occupational Health and Safety (OHS) Act focuses on promoting a safe and healthy workplace and preventing work-related accidents and diseases. The Workers’ Compensation Act (WCA) addresses compensation and rehabilitation of workers who are injured or who contract a disease related to the workplace. © 2016, Southern Alberta Institute of Technology 85 The Purpose of Health and Safety Legislation (2 of 2) On-the-job accidents are costly. Human suffering. Lost time and production. Workplace safety and insurance claims. Fines and other penalties. Failure to comply can result in fines up to $500,000, terms of imprisonment for a first conviction or both. © 2016, Southern Alberta Institute of Technology 86 Occupational Health and Safety Provisions (1 of 2) The OHS Act focuses on prevention of workplace accidents and diseases. Workplace parties share responsibility for occupational health and safety. The OHS Act provides a framework of general rights and responsibilities. Occupational Health and Safety Act, § O-2-2 (2000 & Supp. 2013). Retrieved from http://www.qp.alberta.ca/documents/Acts/O02.pdf © 2016, Southern Alberta Institute of Technology 87 Occupational Health and Safety Provisions (2 of 2) Complemented by specific requirements related to specific industries and hazards (regulations). All workers, not just employees, are included. Workers have core rights under the OHS Act and Code. The act is administered by the Ministry of Human Services. © 2016, Southern Alberta Institute of Technology 88 Workers' Rights Under the Code Three key rights: 1. To participate in the health and safety process, mostly through the joint health and safety committee (JHSC). 2. To refuse unsafe work. 3. To know about workplace hazards. Occupational Health and Safety Act, § O-2-31 (2000 & Supp. 2013). Retrieved from http://www.qp.alberta.ca/documents/Acts/O02.pdf © 2016, Southern Alberta Institute of Technology 89 Duties of the Employer (1 of 3) General duty to take every reasonable precaution to protect the health and safety of their own workers and other workers present at a workplace. Ensure that workers are made aware of their rights and duties under the act and regulations. © 2016, Southern Alberta Institute of Technology 90 Duties of the Employer (2 of 3) Establish occupational health and safety policies and programs in compliance with regulations. Provide and maintain in good condition protective equipment, devices and clothing and ensure that they are used. Provide workers with information, training and supervision necessary to ensure the health and safety of workers. © 2016, Southern Alberta Institute of Technology 91 Duties of the Employer (3 of 3) Co-operate with workplace health and safety officers performing their duties. Refuse to employ underage workers. Keep accurate records of biological, chemical or physical agents as required by regulations. Report accidents, injury or illness. © 2016, Southern Alberta Institute of Technology 92 Workers’ Duties (1 of 2) The OHS Act and Code impose obligations on workers, including duties to: Comply with the statutes and regulations. Use or wear any equipment, protective device or clothing required by the regulations. Report any missing or defective equipment or protective device that may create a danger. Report any known workplace hazard. © 2016, Southern Alberta Institute of Technology 93 Workers’ Duties (2 of 2) Refuse to engage in any horseplay or similar conduct that may endanger the worker or any other person. Ensure that their ability to work without risk to themselves or others is not impaired by alcohol, drugs or other causes. Co-operate with the joint health and safety committee or worker health and safety representative. Co-operate with the Workers’ Compensation Board (WCB) and its officers. © 2016, Southern Alberta Institute of Technology 94 Joint Health and Safety Committee Section 31 sets out rules regarding the Joint Health and Safety Committee (JHSC) and health and safety representatives. The JHSC is the cornerstone of the internal responsibility system. It is an advisory group of work and management representatives that has statutory powers. Members meet regularly to discuss health and safety concerns, review progress and make recommendations. Occupational Health and Safety Act, § O-2-31 (2000 & Supp. 2013). Retrieved from http://www.qp.alberta.ca/documents/Acts/O02.pdf © 2016, Southern Alberta Institute of Technology 95 Powers and Duties of JHSC 1. Identify potentially dangerous situations in the workplace. 2. Obtain information from the employer regarding workplace hazards. 3. Make recommendations to the employer for improving workplace health and safety. 4. Investigate work refusals. 5. Investigate serious injuries in the workplace. © 2016, Southern Alberta Institute of Technology 96 What Is WHMIS? (1 of 2) The Workplace Hazardous Materials Information System (WHMIS) is a national information system that applies to all industries and workplaces in Canada pursuant to the federal Hazardous Products Act and the Controlled Products Regulation. It is “right to know" legislation. Health Canada (2015). Workplace Hazardous Materials Information System (WHMIS). Environmental and Workplace Health. Retrieved from http://www.hc-sc.gc.ca/ewh-semt/occup-travail/whmis-simdut/index-eng.php Occupational Health and Safety Act, § O-2-31 (2000 & Supp. 2013). Retrieved from http://www.qp.alberta.ca/documents/Acts/O02.pdf © 2016, Southern Alberta Institute of Technology 97 What Is WHMIS? (2 of 2) WHMIS is designed to provide workers and employers with essential information about using, handling and storing hazardous materials in the workplace. Parallel legislation in Alberta is available in part 29 of the Occupational Health and Safety (OHS) Code regarding controlled products. Occupational Health and Safety Code, §§ 389-392 (2009). Retrieved from https://www.una.ab.ca/files/155/2009_Occupational_Health_and_Safety_Code_Alberta.pdf © 2016, Southern Alberta Institute of Technology 98 Employee Responsibility Under WHMIS 1. Prepare and maintain an inventory of hazardous materials. 2. Label hazardous materials. 3. Prepare and obtain material safety data sheets (MSDSs). 4. Provide worker training. © 2016, Southern Alberta Institute of Technology 99 Workplace Violence (1 of 3) Employers have a legal duty to address violence in the workplace stemming from their general duty to take every precaution reasonable in the circumstances to protect the health and safety of their workers. Part 27 (Sections 389-392) of the Alberta OHS Code imposes a specific duty on employers to take steps to address workplace violence. Occupational Health and Safety Code, §§ 389-392 (2009). Retrieved from https://www.una.ab.ca/files/155/2009_Occupational_Health_and_Safety_Code_Alberta.pdf © 2016, Southern Alberta Institute of Technology 100 Workplace Violence (2 of 3) Under Section 389, an employer must conduct a hazard assessment to identify: Aspects of the workplace that may enhance opportunities for violence (such as poorly lit areas or unregulated building access). Those individuals at highest risk. The need for controls. Occupational Health and Safety Code, § 389 (2009). Retrieved from https://www.una.ab.ca/files/155/2009_Occupational_Health_and_Safety_Code_Alberta.pdf © 2016, Southern Alberta Institute of Technology 101 Workplace Violence (3 of 3) Employers must develop a policy and procedures to address potential workplace violence (Section 390 of the OHS Code). The policy and procedures must be in writing and available to workers. Occupational Health and Safety Code, § 390 (2009). Retrieved from https://www.una.ab.ca/files/155/2009_Occupational_Health_and_Safety_Code_Alberta.pdf © 2016, Southern Alberta Institute of Technology 102  Accidents in the Workplace Accident Reporting and Investigation © 2016, Southern Alberta Institute of Technology 103 Accident Reporting An accident may be investigated by an officer attending at the scene (Section 19 of the OHS Act). The procedure for accidents of a more serious nature is detailed in Sections 18(1) and 18(2) of the OHS Act. Occupational Health and Safety Act, §§ O-2-18-19 (2000 & Supp. 2013). Retrieved from http://www.qp.alberta.ca/documents/Acts/O02.pdf © 2016, Southern Alberta Institute of Technology 104 Duty to Report In the event of any accident, an employer should immediately: 1. Arrange for medical assistance for the injured worker. 2. Lock out the machinery or equipment. 3. Secure the accident site. 4. Notify the following parties: ◦ The director of inspection pursuant to Alberta’s Public Service Act. ◦ The JHSC or a health and safety representative. ◦ The employer’s lawyer. © 2016, Southern Alberta Institute of Technology 105 Accident Investigation (1 of 3) The employer should take the following actions: 1. Ensure that the investigation begins as soon as possible after an injured worker receives medical treatment. There should be a separate management investigation apart from the investigation conducted by the ministry inspector. 2. Prepare and file the requisite information for the WCB. Reporting and Investigating Injuries and Incidents. (2009, January). Workplace Health and Safety Bulletin. Retrieved from http://work.alberta.ca/documents/whs-pub_li016.pdf © 2016, Southern Alberta Institute of Technology 106 Accident Investigation (2 of 3) 3. Obtain a statement from the injured worker, if possible. 4. Take photographs and, if relevant, samples of any hazardous materials. Examine the equipment or tools involved. 5. Interview all potential witnesses. Include questions about the steps that were taken to prevent the accident. 6. Ensure that all interviews are witnessed by a third party. Reporting and Investigating Injuries and Incidents. (2009, January). Workplace Health and Safety Bulletin. Retrieved from http://work.alberta.ca/documents/whs-pub_li016.pdf © 2016, Southern Alberta Institute of Technology 107 Accident Investigation (3 of 3) 7. Prepare witness statements and have them signed by the witnesses. 8. Do not tamper with the site of the accident. 9. Develop and implement a remedial action plan that identifies an addresses the root cause(s) of the accident. 10. During the ministry inspector’s investigation, any person being questioned has the right to have counsel present and the right to remain silent. A management representative should accompany the inspector during the investigation and record. Reporting and Investigating Injuries and Incidents. (2009, January). Workplace Health and Safety Bulletin. Retrieved from http://work.alberta.ca/documents/whs-pub_li016.pdf © 2016, Southern Alberta Institute of Technology 108  Administration and Enforcement Inspections and Enforcement Offences and Penalties © 2016, Southern Alberta Institute of Technology 109 Powers of Inspectors (1 of 2) Section 19 of the OHS Act gives inspectors broad powers, including: 1. Enter any workplace without a search warrant, except where the workplace is also a personal dwelling. 2. Conduct tests or have tests conducted at the employer’s expense. 3. Question anyone in the workplace. 4. Speak privately to any worker. Occupational Health and Safety Act, § O-2-19 (2000 & Supp. 2013). Retrieved from http://www.qp.alberta.ca/documents/Acts/O02.pdf © 2016, Southern Alberta Institute of Technology 110 Powers of Inspectors (2 of 2) 5. Compel the production of drawings, specifications, licences or other documents for examination, and copy them, if necessary, before returning them to the employer. 6. Remove any equipment, machine or device to test as necessary. Occupational Health and Safety Act, § O-2-19 (2000 & Supp. 2013). Retrieved from http://www.qp.alberta.ca/documents/Acts/O02.pdf © 2016, Southern Alberta Institute of Technology 111 Altering of Scene It is illegal to alter the scene of a serious workplace injury or fatality in any way without the permission of a ministry inspector. Exceptions exist where alterations are necessary to relieve suffering, maintain an essential service or prevent unnecessary damage to property. © 2016, Southern Alberta Institute of Technology 112 Enforcement An officer who finds a contravention of the act or regulations may issue an order requiring the employer to comply with the law (Sections 9 and 10). If a contravention endangers the health or safety of a worker, the officer has the authority to issue a stop-work order. Occupational Health and Safety Act, §§ O-2-9-10 (2000 & Supp. 2013). Retrieved from http://www.qp.alberta.ca/documents/Acts/O02.pdf © 2016, Southern Alberta Institute of Technology 113 Case for Discussion (1 of 2) Border Paving Ltd. v. Alberta, No. 0501 16407 (Occupational Health and Safety Council), (ABQB 2006), aff’d, 0701-0116-AC (ABCA 2009). Border Paving Ltd. v. Alberta, No. 0501 16407 (Occupational Health and Safety Council), (ABQB 2006), aff’d, 0701-0116-AC (ABCA 2009). Retrieved from https://www.canlii.org/en/ab/abca/doc/2009/2009abca37/2009abca37.pdf © 2016, Southern Alberta Institute of Technology 114 Case for Discussion (2 of 2) R v. Lonkar Well Testing Limited, No. 061562534S1 (ABQB 2009). R v. Lonkar Well Testing Limited, No. 061562534S1 (ABQB 2009). Retrieved from https://www.canlii.org/en/ab/abqb/doc/2009/2009abqb345/2009abqb345.pdf © 2016, Southern Alberta Institute of Technology 115 Offences and Penalties (1 of 2) The maximum penalties for offenders for a first conviction in Alberta are fines up to $500,000, further fines of $30,000 for each day that the legislation continues to be contravened and/or imprisonment for up to six months. Imprisonment is extremely rare. © 2016, Southern Alberta Institute of Technology 116 Offences and Penalties (2 of 2) Maximum fines for subsequent convictions are up to $1,000,000 in Alberta and, if the offence continues: ◦ A further fine of up to $60,000 in Alberta for each day that the legislation continues to be contravened and/or; ◦ Imprisonment for up to 12 months. © 2016, Southern Alberta Institute of Technology 117 Workers' Compensation Act The focus of the Workers’ Compensation Act (WCA) is compensation and rehabilitation of workers who suffer work-related injuries and illnesses. © 2016, Southern Alberta Institute of Technology 118 Key Features of the WCB 1. No-fault insurance systems. 2. Workers may not sue employers for occupational injuries and illnesses. 3. Funded entirely by employers in the province. 4. Workers may not waive rights to benefits under the WCB system. 5. Focuses on the early and safe return to work of disabled individuals. 6. A labour market re-entry plan may be prepared by the WCB. 7. Administered by WCB. © 2016, Southern Alberta Institute of Technology 119 Worker Coverage (1 of 2) Virtually every industry is covered. Industry is defined as an “establishment, undertaking, trade or business, whether it is carried on in conjunction with other occupations or separately” (Section 1). Some industries are not compulsorily covered. These include financial institutions, recreational and social clubs, broadcasting stations and law firms. Workers’ Compensation Act, § 1 (2000 & Supp. 2014). Retrieved from http://www.qp.alberta.ca/documents/Acts/W15.pdf © 2016, Southern Alberta Institute of Technology 120 Worker Coverage (2 of 2) Similarly, certain workers who are not automatically covered (such as independent contractors, sole proprietors and executive officers) may opt in to the system. © 2016, Southern Alberta Institute of Technology 121 Who Is Eligible for WCB Benefits? Insures only against those injuries or diseases that relate to the workplace; non-occupational injuries or illnesses are not covered. The WCB outlines rules for worker qualification. © 2016, Southern Alberta Institute of Technology 122 Case for Discussion (1 of 2) Anonymous v. Anonymous, No. 2001-0417,17 Workers’ Compensation Reporter 343 (BC Workers’ Compensation Review Board, Appeal Division 2001). Anonymous v. Anonymous, No. 2001-0417,17 Workers’ Compensation Reporter 343 (BC Workers’ Compensation Review Board, Appeal Division 2001). Retrieved from http://www.worksafebc.com/publications/newsletters/assets/pdf/2001_0417.pdf © 2016, Southern Alberta Institute of Technology 123 Case for Discussion (2 of 2) Alberta (Workers’ Compensation Board) v. Alberta (Workers’ Compensation Board, Appeals Commission), No. 0403 16378 (ABQB 2005). Alberta (Workers’ Compensation Board) v. Alberta (Workers’ Compensation Board, Appeals Commission), No. 0403 16378 (ABQB 2005). Retrieved from https://www.canlii.org/en/ab/abqb/doc/2005/2005abqb543/2005abqb543.pdf © 2016, Southern Alberta Institute of Technology 124 Claims Management (1 of 2) Establish procedures for investigating workplace injuries and train management in these procedures. Document all claims, even those that appear minor. Make every effort to ensure the worker is able to claim benefits promptly. Challenge doubtful claims from the outset. © 2016, Southern Alberta Institute of Technology 125 Claims Management (2 of 2) Keep notes concerning your communications with health and safety officials. Follow up in writing. Establish a return-to-work plan and make the necessary accommodations short of undue hardship. Do not contact the injured worker’s physician. Separate medical files from personnel files and treat them confidentially. © 2016, Southern Alberta Institute of Technology 126 Appeals (1 of 2) If a worker, dependent or employer is dissatisfied with the result of a WCB claim, he or she can make a written request to the Dispute Resolution and Decision Review Body to review the record of a compensation claim (Section 46 of the WCA). Workers’ Compensation Act, § W-15-46 (2000 & Supp. 2014). Retrieved from http://www.qp.alberta.ca/documents/Acts/W15.pdf © 2016, Southern Alberta Institute of Technology 127 Appeals (2 of 2) One further appeal is permitted to the Alberta WCB Appeals Commission (Sections 10- 13.5). Workers’ Compensation Act, §§ W-15-10-13.5 (2000 & Supp. 2014). Retrieved from http://www.qp.alberta.ca/documents/Acts/W15.pdf © 2016, Southern Alberta Institute of Technology 128 © 2016, Southern Alberta Institute of Technology. All rights reserved. This publication and materials herein are protected by applicable intellectual property laws. Unauthorized reproduction and distribution of this publication in whole or part is prohibited. For more information, contact: Director, Centre for Instructional Technology and Development Southern Alberta Institute of Technology 1301 16 Ave. N.W., Calgary, AB T2M 0L4 © 2016, Southern Alberta Institute of Technology 129