It is very important that the Owners and Managers of Companies in Canada understand their rights and obligations towards their employees based on their Provincial Employment Standards Act, Human Rights Act, Law of Constructive Dismissal and Court Decisions, including the Supreme Court of Canada, to avoid the damages that their Company can be required to pay an employee wrongfully dismissed.
Tip #1: Know your Provincial Employment Standards Act (ESA) or Federal Labour Standards Act (if your business is Inter Provincial or Federally Regulated)
Most employees are covered under their Provincial ESA. There are some exclusions and limitations to the Act based on the position the employee holds. However, if an employee has to travel to another province or country to conduct business, their employment will be governed by the province or country where the work was performed. Your provincial ESA describes all the information you need from Employment Records and Payment of Earnings to Hours of Work and Rest, Overtime and Overtime Pay, General Holidays and General Holiday Pay, Vacation and Vacation Pay, Maternity Leave, Parental Leave & Reservist Leave. The ESA describes Notice of Termination by either the Employer or Employee, pay in lieu of notice based on length of service for a Without Cause Termination and the situations that merit a Just Cause Termination with no notice required. The ESA has a Tribunal that rules on employee complaints of wrongful dismissal and manner of dismissal. The length of employee service is the minimum standard. Common Law then comes into play where severance packages are added to the total, dependent on the employee signing a Release Form releasing the Employer from further liability regarding the termination.
Tip #2: Know your Provincial or Federal Human Rights Act
In Alberta, no employer may refuse to employ, hire, or discriminate in employment terms and conditions on the basis of a person’s race, religious beliefs, color, gender, physical disability, mental disability, marital status, age, ancestry, place of origin, family status, source of income and sexual orientation. There are some exceptions to this based on bona fide retirement or pension plans and bona fide group or employment insurance plans. There are also exceptions based on bona fide occupational requirements. As for Equal Pay, where employees of both sexes perform the same or substantially similar work for an employer in an establishment, the employer must pay the employees at the same rate of pay. The employer cannot reduce the higher rate to meet this obligation. Provincial Human Rights Commissions have their HRC Tribunals. The problem is that it may be months before the Hearing is held. If the Tribunal finds against the employer and for the employee on a wrongful dismissal, payment to the employee will not only be the months of back pay wages and loss of benefits but aggravated damages will be added for loss of dignity and depression. Here is a Court Decision that provides an example.
Tip #3: The Law of Constructive Dismissal
Constructive Dismissal constitutes any changes to the major terms of the employment contract, which are unacceptable to the employee: salary, benefits, status, location, job change. If the employee provides a voluntary acceptance of the change in writing, then there is no Constructive Dismissal. If a reasonable notice of the change is given to the employee, the employer may avoid a charge of Constructive Dismissal.
Tip #4: Progressive Discipline and Proper Documentation is Important
Performance Appraisals that accurately describe performance along with instructions and warnings to correct behaviour is important. This may include verbal warning, written warning and final written warning clearly specifying termination will occur if no improvement. A reasonable notice period is required to ensure that all chances were provided for improvement.
Tip #5: There are Online Resources available to you.
A Good Resource is Mondaq with numerous legal cases in Employment Law. Another one is Lexology.
Tip #6: Salopek & Associates Ltd. We are here to assist you.
Please check out our website and explore the services and expertise we offer companies across Canada. We have experienced HR Consultants available to support you and provide answers to your HR questions. We also have an HR Policy E-Store which provides HR Guides, Manuals, Policies, Forms and Templates that can be customized to your business and provincial legislation.