Whether you’re an employee who has been unfairly treated or an employer who has been wrongfully subjected to a labour dispute, it helps to understand the basic employment laws, what they cover, and how to handle a problem. That includes the hiring process, workplace privacy, safety and more. This guide provides the details that will help you determine if legal counsel should be your next step.
The Hiring Process
There are a number of legal issues connected to the hiring process. An employer cannot discriminate against those who are applying for a position. For starters, Canadian employers must comply with the Employment Equity Act and provide opportunities to women, indigenous persons, persons with disabilities, and members of visible minorities. In fact, the Legislated Employment Equity Program requires federally regulated organizations and businesses to report the number of hired people within each group and also report on the steps taken to do so.
Additionally, the Canadian Human Rights Act (CHRA) and Ontario Human Rights Code disallows bias based on gender, race, ethnicity, age, and more. Both acts work to prevent discrimination in the workplace.
Although a written employment contract is not mandatory in Canada, it is always best to put everything in writing. A verbal agreement is legally valid, but the terms and conditions that were originally agreed upon are more difficult to prove in a dispute.
Wage and benefit disputes are common and lawsuits often ensue as there are misconceptions, misunderstandings, and a lack of either employee or employer following mandatory requirements.
Basic Employment Rights
Employment standards include hours of work, minimum wages, sick days, vacation days, severance and more. These are the minimum standards set by law for which every working person is entitled. An Employment Standards Act poster must be placed in a public area of the workplace where all employees are able to read.
Federally regulated employees work under the Labour Program which set the standards for all federally regulated businesses and governed by the Canada Labour Code. Each province and territory has its own legislation and labour laws.
On the Job Violence and Harassment
Workplace sexual harassment can include words and actions that are offensive, embarrassing, humiliating or demeaning to another while at the workplace. It may involve anything which is sexualized including:
- Rough or vulgar humour or language related to sex
- Spreading around pornography, images or sexual joke in print or digital
- Invasion of personal space
- Unnecessary physical contact
- Sexual demands
- Verbal abuse, threats or warnings based on gender or sexual preference
Being called names, or screamed at, or being treated unfairly are also subject to harassment laws. Employment environments are meant to be safe and comfortable and although there may not be a law that covers a specific situation, unfair and unreasonable treatment is worth discussing with a legal professional.
If one finds themselves a victim of office bullying or any of the behaviours listed above:
- Describe the event in detail, in writing.
- Discuss the situation with your employer.
- Check with the Human Rights Tribunal of Ontario to determine if a complaint can be made.
- Check with the Occupational Health and Safety Branch to see if a complaint should be made.
- If pushed out of an employment position or you wish to leave due to harassment, seek legal advice. You may have been constructively dismissed and have additional statutory remedies.
The Canadian Charter of Rights and Freedoms offers protection under Section 7 (the right to life, liberty, and the security of the person) and Section 8 (the right to be secure against unreasonable search or seizure). There are additional laws intended to protect one’s privacy through rules that determine how personal information is handled by the government and individual companies, such as the Personal Information Protection and Electronic Documents Act (although limited application for the employment sector).
Since the large high tech companies, like Facebook, are now being examined on their handling of users’ personal information, concerns have spilled over to how employers handle their employee’s personal information.
Current technology makes it possible to monitor employees’ computer and company telephone usage. Some say that office workers should not expect their emails and Internet searches to remain private. The equipment within each company is owned by the company so they have a right to search and use evidence found against any employee who is misusing company time and equipment.
This same method can be used to implicate an unlawful employer who has been harassing, discriminating, or abusing employees. Employers cannot search for email messages for no reason.
In a landmark case in 2012, Jones v. Tsige, the Ontario Court of Appeal confirmed the existence of an invasion of privacy… also referred to as “intrusion upon seclusion”. This happens when an employer provides sensitive information relating to the employee’s financial records, health records, sexual orientation, private correspondence, and employment information without the employee’s permission. Employees in Ontario are entitled to a “reasonable expectation of privacy” even when using the company’s technology. Employers should stay within these safe practices:
- Ensure the policy is followed consistently.
- Personal information should not be shared without the employee’s permission unless following a court order or mandate.
- Limited information access to staff members, even those who are authorized.
- Employee’s personal information should be stored securely.
At one time or another, everyone needs to take time off – it may be to recover from an illness, attend funerals, vote, or take care of the family. The Canada Labour Code provides federally regulated employees with leaves that no employer can deny. The Ontario Employment Standards Act provides leaves for provincially regulated employees. Additionally, the employer can not dismiss, suspend, demote, discipline or suspend an employee for taking any of the following leaves. If your employer denies time off that falls within these laws, it is grounds for a dispute.
An employee is provided with sick leave of up to 17 weeks if they have worked for the same federally regulated employer for a minimum of three consecutive months. With the exception of the standard five days of paid sick leave, the remainder is granted without pay, but the job is held open within that time period. The employee may qualify for benefits through the Canada Pension Plan or Employment Insurance if the absence is extended.
Work-Related Illness or Injury
Employers are required to subscribe to a plan that replaces the employee’s wages at a rate that is equal to that which is provided by provincial or territorial workers’ compensation in the respective province.
Maternity & Parental Leave
All female employees are entitled to up to 17 weeks of maternity leave if they have completed six consecutive months of employment with the same employer. Leave can begin up to 13 weeks of the baby’s expected due date and can end 17 weeks afterwards.
Both natural and adoptive parents are eligible for up to 63 weeks of parental leave if they have completed six months of employment with the same company. Parents who prefer to share leave can receive an additional eight weeks of leave – a total of up to 71 weeks of parental leave. The leaves can be taken any time during the 78-week period starting the day the child is born (or adopted).
It is possible for a female to combine parental and maternity leave, but it must be taken within one time period for each type of leave and not exceed the 78-week maximum. If the child is hospitalized shortly after birth or adoption, the leave can be interrupted. The law states that the maternity leave must end no more than 52 weeks after the delivery date and parental leave no later than 104 weeks.
Other Regulated Federal Leaves
- Compassionate Care Leave: This leave allows up to 28 weeks to look after a family member who is extremely ill. However, it is unpaid and must be taken within a 52-week period.
- Critical Illness Leave: Critical illness leave may be taken by a family member of a critically ill child or adult if they have completed six consecutive months of employment with the same company. The length of the leave is up to 37 weeks to provide care for a critically ill child or 17 weeks of leave to provide care to an adult. The leave is unpaid but provides job security.
- Bereavement Leave: Three consecutive working days of leave are allowed after the death of a family member if the employee has worked for the company for three consecutive months. The employee is entitled to pay if they have been employed for three consecutive months by the same company. If not, they are still entitled to leave, but without pay. This is extended to “immediate family”, which includes the employee’s spouse, parents, grandchildren, siblings, grandparents and dependent relative. This also corresponds to the employee’s “common-law partner” and family as outlined above.
- Leave related to Death or Disappearance: If an employee’s child (under 18-years) has disappeared due to a crime, the employee is entitled to take up to 52 weeks. If the child has died due to a criminal offence, the employee may take up to 104 weeks.
- Reservist Leave: Reservists that work in federally regulated companies or in federal public service are allowed to take a leave of absence without pay to join in annual training or in certain operations that are designated by the Minister of National Defence. (This leave is also extended to reservists who are required to report for duty under the National Defence Act.)
The Canada Labour Code has guidelines on correct practices for terminating one employee or a group that involves 50 or more employees who are dismissed at once within a four-week period.
In a group termination, the employer must notify the Minister of Labour in writing at least 16 weeks before the termination date. Additionally, employers must provide notice of individual termination (or pay if no notice), as well as the group notice to each person who will be affected.
Employees are entitled to severance pay if they have worked at least 12 consecutive months before dismissed or laid off. They should receive two days of wages for each year completed – with the minimum set at five days compensation.
A layoff is considered a sort of termination as the employer does not anticipate recalling the employee to work. Employers have responsibilities to those who are being laid off and if not followed, the employee has a right to file a complaint. However, like dismissal, employees may have greater or more accessable rights civilly so should speak to us to understand what right you have in those circumstances. For the majority of employees who are provincially regulated, your rights are almost invariably much greater if you sue civillly than what Employment Standards can provide, potentially 10 times or more greater.
If laid off, apply for employment insurance. Since there is often an overwhelming number of people receiving benefits, it is smart to apply immediately upon being laid off. For the claim to be considered, they must have a copy of the employment records, which the employer must submit within five days of the last payroll check received.
There are also layoff or termination situations that could be considered unjust dismissals. For example, if the terms of the contract were considerably changed that would be considered an unjust dismissal. If a federal employee feels they were unjustly dismissed they have 90 days from the date of termination to file such a complaint. Federal and provincially regulated employees have up to two years to sue for wrongful dismissal but the complaint tends to be taken far more seriously and settlement is concomitantly easier if you move quickly and not wait.
Summary & Levitt LLP
Employment law is intricate and complicated, particularly when it comes to disputes. The legal boundaries are often muddy and require an understanding of precedent and specific laws. If unfair employment practices are affecting you, a loved one or an associate, don’t hesitate to take action or spread the word.
We have two locations in Toronto and look forward to providing an in-person consultation or face-to-face video call when we can learn all the details. The fastest way to get started is to set up a consultation here or call (416) 594-3900.