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    Chapter 2 - The Changing Legal Emphasis

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    Chapter 2 - The Changing Legal Emphasis

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    时家欣
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    Chapter 2 – The Changing Legal Emphasis (1)

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    119 views28 pages

    Chapter 2 - The Changing Legal Emphasis

    Uploaded by

    时家欣

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    © All Rights Reserved
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    CHAPTER 2 – THE

    CHANGING LEGAL
    EMPHASIS
    HUMAN RESOURCES MANAGEMENT – WINTER 2020
    • Why do we need the government to regulate employer
    and employee relationships?
    THE LEGAL FRAMEWORK FOR EMPLOYMENT IN
    CANADA
    Employer: Employee:
    Right to modify Right to be protected
    employee work terms for from harmful business
    legitimate business needs practices

    Copyright © 2014 Pearson Canada Inc. All rights reserved


    Government:
    Balance needs of
    employer and employee
    JURISDICTION

    Federal laws
    • Federally regulated employers (Federal civil service,
    Crown corporations and agencies, transportation, banking
    and communications)
    Provincial/territorial employment laws
    • all other employers (90% of Canadian workers)
    CANADIAN LEGISLATION

    • Canadian Charter of Rights and Freedoms


    • Human Rights Legislation
    • Employment Standards Legislation (statute law)
    • Occupational Health and Safety Act
    • Collective Bargaining Agreement
    • Employment contract
    STATUTE VS COMMON LAW

    • Legislation – written by legislators, statute law


    • Tort law – written by judges, based on precedent (common law)
    INTERPLAY BETWEEN STATUTE AND CASE LAW

    • Example:
    • Employment Standards Act
    • Minimum notice provisions under statute
    • Case Law offers context
    THE CANADIAN CHARTER OF RIGHTS AND
    FREEDOMS
    Freedoms
    • freedom of conscience and religion
    • freedom of thought, belief, expression and opinion
    • freedom of peaceful assembly
    • freedom of association

    Section 15 – Equality Rights


    • right to equal protection and benefit of the law without discrimination
    HUMAN RIGHTS LEGISLATION

    • Specific legislation which prohibits discrimination in


    employment situations
    • Grounds include: race, colour, religion or creed, sex, marital
    status, age, disability and sexual orientation.
    DISCRIMINATION DEFINED
    • “… a distinction, exclusion or preference based on one of the prohibited
    grounds that has the effect of nullifying or impairing the right of a person
    to full and equal recognition and exercise of his or her human rights and
    freedoms.”

    • Intentional vs unintentional
    INTENTIONAL DISCRIMINATION

    Intentional Discrimination
    • direct
    • differential or unequal treatment
    • indirect (3rd party)
    • by association (spouse has a disease)
    UNINTENTIONAL DISCRIMINATION

    •Unintentional Discrimination
    • constructive or systemic discrimination
    • embedded in policies with adverse impact on specific
    groups (height, seniority)
    UNINTENTIONAL DISCRIMINATION
    PERMISSIBLE DISCRIMINATION

    • Bona fife occupational requirement (BFOR)


    • justifiable reason for discrimination
    • based on business necessity (safe and efficient operations)
    • e.g. vision standards for bus driver
    TEST TO ASSESS BFOR

    • Supreme Court of Canada established a 3-part test:


    • Question of rationale
    • Question of good faith
    • Question of reasonable necessity
    REASONABLE ACCOMMODATION

    • Duty to Accommodate

    • Undue Hardship
    HUMAN RIGHTS EXAMPLES

    1. Disability
    • Almost 50% of claims
    • SCC Test
    • Differential Treatment
    • An enumerated ground
    • Substantive effect
    HUMAN RIGHTS EXAMPLES

    • 2. Harassment
    • Unwelcome behaviour that demeans, humiliates or
    embarrasses a person
    • Employer Responsibilities
    SEXUAL HARASSMENT

    • Offensive or humiliating behaviour that is related to a


    person's sex, as well as behaviour of a sexual nature that
    creates an intimidating, unwelcome, hostile, or offensive
    work environment…”
    SEXUAL HARASSMENT

    • Sexual Coercion

    • Sexual Annoyance
    REMEDIES

    • Two types of remedies where discrimination is found


    • Systemic remedies
    • Restitutional remedies
    EMPLOYMENT STANDARDS ACT

    • Minimum terms and conditions


    • Wages
    • Notice
    • Vacation
    • Sick leave
    • Holidays, etc.
    • Principle of greater benefit
    ESA PROVISIONS
    Eating periods
    • 20 (1) An employer shall give an employee an eating period of at least 30 minutes at
    intervals that will result in the employee working no more than five consecutive hours
    without an eating period.  2000, c. 41, s. 20 (1).
    Exception
    (2) Subsection (1) does not apply if the employer and the employee agree, whether or
    not in writing, that the employee is to be given two eating periods that together total at least
    30 minutes in each consecutive five-hour period.  2000, c. 41, s. 20 (2).
    ESA PROVISIONS
    Vacation pay
    • 35.2 An employer shall pay vacation pay to an employee who is entitled to vacation under section
    33 or 34, equal to at least,
    (a) 4 per cent of the wages, excluding vacation pay, that the employee earned during the
    period for which the vacation is given, if the employee’s period of employment is less than five
    years; or
    (b) 6 per cent of the wages, excluding vacation pay, that the employee earned during the period for
    which the vacation is given, if the employee’s period of employment is five years or more. 2017, c.
    22, Sched. 1, s. 23.
    ESA PROVISIONS
    No termination without notice
    54 No employer shall terminate the employment of an employee who has been continuously
    employed for three months or more unless the employer,
    (a) has given to the employee written notice of termination in accordance with section 57 or
    58 and the notice has expired; or
    (b) has complied with section 61.  2000, c. 41, s. 54. (pay in lieu)
    ESA PROVISIONS
    Employer notice period
    57 The notice of termination under section 54 shall be given,
    (a) at least one week before the termination, if the employee’s period of employment is less than
    one year;
    (b) at least two weeks before the termination, if the employee’s period of employment is one year
    or more and fewer than three years;
    (c) at least three weeks before the termination, if the employee’s period of employment is three
    years or more and fewer than four years;
    (d) at least four weeks before the termination, if the employee’s period of employment is four years
    or more and fewer than five years;….
    GROUP EXERCISE
    • Choose a statement you prefer and provide a response
    Option 1: Employment law has gone too far! We need to repeal some of
    these laws. Why? Which ones?

    Option 2: These laws are useful and necessary. Why?

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