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

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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?