EMPLOYMENT LAW IN CANADA ch3

8/7/2019 EMPLOYMENT LAW IN CANADA ch3

1/17


2/17

GOVERNMENT AUTHORITIESy In Canada, the power to make laws is divided between

the federal and provincial governments.

y In the area of employment law, the federal governmentonly has jurisdiction over specific works and

undertakings within exclusive federal constitutionaljurisdiction, such as shipping, railways and banks.

y The general rule, therefore, is that the provinces havejurisdiction over employment matters generally,

while the federal government has jurisdiction only inexceptional cases, in respect of specific works andundertakings.


3/17

Minimum standards of employment

y All Canadian provinces have enacted legislationsetting out minimum standards that govern the basicterms and conditions of employment, includingminimum wage levels, vacation and holiday pay, hours

of work, leaves of absence, notice periods fortermination, and, in some jurisdictions, severancepayments.

yEmployers and employees are not permitted tocontract out of these minimum standards.


4/17

In Ontario, minimum standards of employment are defined by

the Ontario Employment Standards Act, 2000 (the ESA). Some

of the minimum standards at the time of writing are set outbelow:

y minimum wage- $9.50 (Employees 18 or older) $8.90(Student Employees Under 18)

y hoursofwork -8 hours per day 48 hours per weekOvertime pay over 44 hours per week (1.5 times regularwage)

y public holiday -9 holidays (New Years Day, Good Friday,

y Victoria Day, Canada Day, Labour Day, Thanksgiving,

Christmas Day, Boxing Day, Family Day)y vacation -Two weeks after 12-months of employment

and 4 percent of wages as vacation pay

y pregnancy leave -17 week job-protected leave without pay


5/17

y parental/adoptive Leave- 35 or 37 week job-protected leave without pay35 weeks if the employee

took pregnancy leave, 37 weeks if the employee did noty emergency leave 10 days job-protected leave without

pay for illness, injury and certain other emergenciesand urgent matters (where employer has 50 or more

employees)y family medical leave 8 week job-protected leave

without pay. Certificate from a qualified healthpractitioner stating that a prescribed individual has a

serious medical condition with a significant risk ofdeath within a 26 week period


6/17

Termination of employmentTermination of employmenty There is no employment at will in Canada. An

employer is generally only entitled to dismiss anemployee from employment without notice where ithas cause in law to do so.

y There is no end to the various types or degrees ofconduct or misconduct that can constitute cause forthe termination of an employees employment.However, cause may be thought of as existing on a

spectrum, with single incidents of serious employeemisconduct at the high end of the spectrum, andminor but repeated incidents of unsatisfactoryconduct at the low end.


7/17

Termination without causey In the absence of cause for dismissal, employers must

generally provide employees with working notice oftermination of employment or pay in lieu of notice.

In Ontario, an employees entitlements ontermination without cause arise from three

potential sources:

i. minimum standards established by the ESA;

ii. the right to reasonable notice of termination atcommon law; and

iii. termination provisions in an enforceable, writtenemployment contract.


8/17

A. the Employment Standards Act:A. the Employment Standards Act:

Notice and Severance PayNotice and Severance PayThe ESAsets out minimum standards for two types of

potential termination entitlements:

1. notice of termination2. severance pay.

1. Noticeoftermination

The ESAprovides minimum standards for individual noticeof termination obligations and, where 50 or moreemployees are terminatedfrom an establishment withina four-week period, mass termination obligations.


9/17

1.Individual notice

y Less than three months----- no notice

y three monthsor more, but less thanone year- one weeky one yearor more, but less than three years- two weeks

y three years or more, but less than four years- three weeks

y fours years

or m

ore, but less t

han

five years -four weeks

y five years or more, but less than six years -five weeks

y six years or more, but less than seven years- six weeks

y seven years or more, but less than eight years-seven

weeksy eight years or more -eight weeks


10/17

Mass terminationsy Adifferent set of requirements exists for mass

terminations of employment, which is the termination

of 50 or more employees at the employersestablishment within a four-week period. Dependingon the number of employees dismissed within thatperiod, the mass notice requirements range from 8weeks to 16 weeks for each employee (regardless oftheir period of employment).


11/17


12/17

B. the Common Law: Reasonable

Noticey The determination of reasonable notice varies from case-

to-case, and is dependent upon a number of factors,including the following:

the employees age;

the position and responsibilities held by the employee; the length of the employees service;

the quantum of the employees remuneration; and

the availability of replacement employment.

A rough rule of thumb in respect of reasonable notice isA rough rule of thumb in respect of reasonable notice isthat a managerial or professional employee is entitledthat a managerial or professional employee is entitledto a month of notice, or pay in lieu of notice, for eachto a month of notice, or pay in lieu of notice, for each

year of service.year of service.


13/17

C. contracty The parties to every employment relationship have an

employment contract with one another, whether theyrealize it or not.

y An employment contract or agreement need not be in

writing, but may in fact be oral or implied. The termsof the employment agreement may provide for suchmatters as the length of the employment relationship,and the obligations arising in connection with the

termination of the relationship.y Generally, however, the terms of the employment

agreement relating to such matters must be reduced towriting in order to be enforceable.


14/17

Human Rights Codey

In Ontario, employers subject to provincial law mustabide by the provisions of the Ontario Human RightsCode, 1990 (the Code).

Purpose of the code

y

The Code is a provincial law that confers equal rightsand opportunities without discrimination in specificareas such as employment, housing and services.


15/17

Workplace Safety And Insurance Act

y Most employers in Ontario are covered under theWorkplace Safety and InsuranceAct, 1997 (theWSIA), which is the provincial mandatory, no-faultcompensation insurance scheme for worker injuries

arising out of, or in the course of, employment.y Responsibility for administrating the WSIArests with

the Workplace Safety and Insurance Board (Board).The Board adjudicates claims, dispenses benefits,

manages early and safe return to work programs andgenerally mediates and adjudicates disputes betweenemployers and workers concerning workerscompensation and their rights and obligations under

the WSIA.


16/17

Occupational Health And Safety Act

y Employers and employees both have a vested interest inworkplace health and safety. Accordingly, occupationalhealth and safety legislation across Canada generally placesreciprocal rights and obligations on management and

employees in an effort to ensure that Canadian workplacesare safe and healthy environments.

y In Ontario, occupational health and safety is regulated bythe Occupational Health and SafetyAct, 1990 (theOHSA). Like most other occupational health and safetylegislation in Canada, the OHSAsets out a comprehensivecode of conduct for both management and employees, allin the interest of health and safety in the workplace.


17/17

Employment Insurance Acty Most Canadian workers and employers contribute to a

statutory income replacement insurance programadministered under the authority of the EmploymentInsuranceAct, 1996 (the EIA).

y The insurance scheme is entirely funded by employerand employee premiums, which are calculated basedon insurable earnings, a defined term in the EIA. As ageneral rule, most employment in Canada is insurable

unless specifically stated otherwise in the EIA.

Documents

EMPLOYMENT LAW IN CANADA ch3