Employment Law

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Employment Law

• for Tomorrows
• Information Technology Professionals
• John Levay
• Acting Director, ITS

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Questions Before We Start

• Can you fire someone for wearing perfume or you
  dont like their hair?
• Can you fire someone who is late because their
  babysitter didnt show up?
• How long must you work before you must be given a
  break at work?
• Can an employer change your duties?

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The Contract of Employment

• Non-Union
• OR
• Union

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The Contract of Employment

• Non-Union
• an individual contract
• can be written or unwritten
• disputes are resolved in court
• damages paid to employee
• punitive damages
• avoid misrepresentation of the job when hiring

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The Contract of Employment

• Non-Union
• dismissal
• 1. reasonable notice to employee
• 2. just cause
• 3. constructive dismissal
• 4. bad faith dismissal

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Dismissal (non-union)

• 1. Reasonable Notice -based on
• availability of other employment
• nature of the job
• level of responsibility
• length of service
• age
• lured away

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Dismissal (non-union)

• 2. Just Cause -based on
• theft/dishonesty
• insubordination
• activities outside work eg. criminal conviction
• violation of rules, policies
• harassment
• incompetence
• poor attendance

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Dismissal (non-union)

• 3. constructive dismissal - means
• change in fundamental terms of employment by
  employer without consent of employee
• change in status
• change in remuneration
• change of location eg. forced transfer

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Dismissal (non-union)

• 4. bad faith dismissal - means
• mistreatment
• unsubstantiated allegations of just cause
• dishonesty
• lack of respect

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The Contract of Employment

• Union -Labour Relations Act
• trade union represents all workers
• no individual bargaining
• collective bargaining
• written collective agreement
• discipline, unjust dismissal
• disputes resolved via grievance procedure
• damages
• reinstatement

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Collective Agreement

• monetary issues
• wages
• vacation
• shift premium
• non-monetary issues
• contract language
• procedures
• administration

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Typical Grievance Procedure

• Stage 1 written complaint from employee to
  immediate supervisor
• Stage 2 union steward and HR staff try to
  resolve complaint
• Stage 3 senior management and top union
  officials review complaint
• Stage 4 arbitration

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Laws Governing Employment

• Employment Standards Act,2000
• Labour Relations Act
• Occupational Health and Safety Act
• Pay Equity Act
• Human Rights Code
• Workplace Safety and Insurance Act (Workers
  Compensation)

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Employment Standards Act

• sets minimum standards
• hours of work/overtime
• 11 consecutive hours free every 24 hours
• 48 hours off every 2 weeks
• IT workers are exempted from these rules!
• overtime averaging agreements - writing
• No more than 60 hours in a week
• breaks - 1/2 hour every 5 hours

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Employment Standards Act

• wages
• time and a half after 44 hours
• averages cannot be over more than 4 weeks
• lieu time must be mutually agreed
• vacation/holiday pay
• must pay statutory holidays - no one exempt
• new formula for vacation pay calculation
• look at last 4 weeks of regular wages

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Employment Standards Act

• Pregnancy and parental leave
• up to 17 weeks pregnancy leave
• automatic vacation carry over
• 35 or 37 weeks of parental leave
• must have comeback date in writing - change with
  4 weeks notice
• employers are not required to pay a person on
  pregnancy or parental leave

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Employment Standards Act

• emergency leave
• 50 or more employees
• up to 10 unpaid days per year
• not holidays
• personal illness, injury or medical emergency
• Death, illness, injury or medical emergency of
  listed family members
• Urgent matter involving listed member not defined
  in act

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Employment Standards Act

• emergency leave
• listed family members
• broad definition
• Spouses, common-law, same-sex
• Step-relatives and in-laws
• dependent relative
• must advise prior to taking or ASAP
• evidence reasonable in the circumstances
• termination (severance pay)

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Emergency leave?

• Employee is sick?
• The employee got a flat tire on the way to work?
• The employees sisters boyfriend left her and
  the employee had to be with his sister
• The employees grandfather died
• The employees babysitter did not show up?

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Emergency leave?

• There was no bus service to work?
• The Blue Jays were hosting an afternoon
  double-header and the Dome was open?
• The employee drank too much the night before and
  woke up with a hangover?
• The employees childs school was hosting an
  afternoon tea?

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Emergency leave?

• Employee had to attend a madness sale at the
  local department store?
• The employee mother is not feeling well?
• The employees air conditioner broke down and
  required repair?
• The temperature was too hot and the employee
  needed to spend time in his backyard swimming
  pool?

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Labour Relations Act

• union certification rules
• collective bargaining rules
• strikes/lockouts not permitted during the life of
  a collective agreement
• requirement for arbitration of disputes
• defines unfair labour practices

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Occupational Health and Safety Act

• responsibility of employers to ensure health and
  safety of employees
• employee right to refuse unsafe work
• requirement for joint health and safety
  committees
• government inspections
• control of toxic substances

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Workplace Safety and Insurance Act

• provides benefits to victims of
  workplace-related accidents and illnesses
• income benefits (85 of net pay, non-taxable)
• medical benefits
• survivor benefits
• paid for by employers
• no fault basis

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Human Rights Code

• 1. Protection Afforded
• 2. Protected Grounds
• 3. Direct vs. Indirect Discrimination
• 4. Accommodation
• 5. Workplace Harassment
• 6. Employers/Managers Obligations

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Human Rights Code1. Protection Afforded

• equal treatment without discrimination on
  certain protected grounds in certain activities
• employment
• services/facilities
• accommodation/housing
• contracts
• vocational associations/self-governing
  organizations

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Human Rights Code2. Protected Grounds

• age
• race
• creed
• colour
• ancestry
• place of origin

• record of offences
• handicap
• citizenship
• sexual orientation
• ethnic origin
• marital/family status

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Human Rights Code2. Protected Grounds

• age
• 18 years to 65 years
• record of offences
• pardoned criminal conviction or provincial offence

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Human Rights Code2. Protected Grounds

• handicap - includes
• physical disability (including addictions)
• mental retardation or impairment
• learning disability
• mental/emotional disorder eg. depression
• WSIA injury/disability

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Human Rights Code2. Protected Grounds

• handicap
• no infringement of the Code by refusing to hire a
  person incapable of performing essential duties
  of the job because of handicap
• obligation to accommodate

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Human Rights Code3. Direct vs. Indirect
Discrimination

• (a) Direct Discrimination
• Exception - special program designed to relieve
  hardship, or assist disadvantaged persons to
  achieve equal opportunity

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Human Rights Code3. Direct vs. Indirect
Discrimination

• (b) Indirect Discrimination
• constructive/adverse impact/systemic
• non-discriminatory factor (eg. height) that
  results in exclusion, restriction, or preference
• UNLESS
• factor is reasonable and bona fide in the
  circumstances

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Human Rights Code4. Accommodation

• must try to accommodate a workers handicap
  through
• adjustment of the workplace
• adaptation of equipment
• waiver of requirements
• adjustment of hours of work

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Human Rights Code4. Accommodation

• accommodation required unless it would create
  undue hardship to employer
• assess level of hardship by looking at
• cost
• availability of outside funding
• health and safety issues
• effect on other employees
• disruption of the collective agreement
• business efficiency

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Human Rights Code5. Harassment

• course of comment/conduct
• vexatious
• unwelcome
• known or ought reasonably to be known to be
  unwelcome
• poisoned environment

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Human Rights Code6. Employers/Managers
Obligations

• obligation of employers/managers
• to take all reasonable steps to ensure that
  workplace is free from discrimination/
• harassment
• address discrimination/harassment immediately and
  effectively if it occurs - this is the law!

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Human Resources

• HR people can help
• HR will always back the employer
• Catbert the evil HR Director
• earned reputation for smiling
• know how to do things legally
• good network to make sure people are what they
  say they are - reference checks
• interviews

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Answers?

• Can you fire someone for wearing perfume or you
  dont like their hair?
• Can you fire someone who is late because their
  babysitter didnt show up?
• How long must you work before you must be given a
  break at work?
• Can an employer change your duties?

39
Questions?

• John Levay
• Acting Director, ITS
• John.Levay_at_BrockU.CA