There are three types of workers in Canada: employees; dependent contractors; and independent contractors, which are distinguished mainly based on their level of subordination to their superiors. In some jurisdictions such as Ontario and the federal sector, certain employees will be entitled to severance pay in addition to termination notice or pay in lieu. Collective agreements usually protect employees against dismissal without just cause. Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada. 9.3 How long do employment-related complaints typically take to be decided? The procedure following this first step depends upon the forum and the jurisdiction in which the complaint was filed, but often includes a voluntary mediation or conciliation process, followed by the exchange of pleadings and exhibits, as the case may be, and finally, by a hearing of the complaint in front of the court, board or tribunal seized of that complaint. Although employment laws rarely address whistleblowing, Canadian employees are protected against retaliation by their employer in cases of whistleblowing by the Canadian Criminal Code, which applies to all jurisdictions and states that employers may not take disciplinary action, demote or terminate an employee in order to deter them from reporting information relating to corporate malpractice or any offence committed by their employer. What are the remedies for a successful claim? Finally, it should be noted that the protection conferred upon employees who raise concern about corporate malpractice or become whistleblowers will generally only be applicable if those employees used the proper channels to voice their concerns, instead of traditional medias or social media platforms. Generally, the maximum duration of a non-competition clause is two years. 6.3 What protection do employees have against dismissal? In Québec, however, as employees are deemed employees of the purchaser following an asset transfer, they can challenge any such dismissal and seek reinstatement. On behalf of Law Office of Dennis L. Richard | Dec 7, 2020 | Firm News. Employees are also entitled to reasonable notice of termination at common law (or under the Québec Civil Code), which include the minimum entitlements above. Pre-employment checks are not illegal but are restricted in a number of jurisdictions. Some jurisdictions also require employers to maintain the seniority of an employee who is on maternity leave throughout this leave. In most jurisdictions, a mass termination will occur where 50 or more employees are terminated within a four-week period. The attachment including 5 cases. Only in Québec are fathers entitled to paternity leave, for up to five weeks. In many jurisdictions, employment standards legislation requires that employees on maternity leave continue receiving their benefit coverage for the duration of that leave, subject to their continued payment of associated premiums. The most common type of employment discrimination occurs when an employee experiences intentional discrimination at work. A non-union employee can bring a complaint under employment standards legislation or file an action in court if they believe that their rights and entitlements relating to their dismissal have not been complied with. It should be noted that, in some jurisdictions, employees are also entitled to a certificate or attestation of employment following their termination. In response to the COVID-19 pandemic, the Ontario government made a regulation that changed certain Employment Standards Act (ESA) rules during the “COVID-19 period”. Unless otherwise provided in a specific law or contract, employers do not require the consent of third parties before dismissing an employee. Generally, personal information relating to an employment candidate, such as criminal background or credit history, will need to be reasonably related to the job in order to be lawfully obtained and considered in the hiring process. Non-union employees outside of the federal sector, Nova Scotia and Québec do not have a right to reinstatement in their employment even if their dismissal was wrongful or without cause. Except for the various tax and source deduction forms that need to be filled out by employees upon their hiring, no specific information must be provided in writing. For example, the older you are or the more money you make, the harder it will be to get a comparable job. Borden Ladner Gervais, Marie-Pier Emery A round-up of the key cases over the last month from our employment law team. Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. and unlock access to three FREE PDF downloads per month not related to a prohibited ground or as retaliation), except in circumstances where they have to prove just cause. In most jurisdictions, non-unionised employees can be dismissed in connection with an asset transfer, as they do not have a right to new employment with the purchaser. Finally, human rights legislation is also implicitly included into collective agreements. When a restrictive covenant forms part of an employee’s offer of employment, the offer of employment itself will generally constitute sufficient consideration. Employment contracts do not have to be in writing to be valid, and they can take the form of an offer letter, a formal contract or even a verbal agreement. In most jurisdictions, bargaining unit employees are also required to pay union dues even if they do not support the trade union in place. Frequency 3 posts / week Since Apr 2012 Also in Canada Law Blogs Blog ottawaemploymentlaw.com Twitter followers 3.3K ⋅ Social Engagement 1 ⋅ Domain Authority 29 ⋅ View … 4.1 How long does maternity leave last? Create Your Own Employee Handbook: A Legal & Practical Guide for Employers Lisa Guerin J.D. Generally, a union must demonstrate that it has the support of a majority of employees in a proposed bargaining unit in order to be certified. Non-competition and non-solicitation clauses (prohibiting the solicitation of both co-workers and clients) are the main forms of restrictive covenants recognised in Canada. Although not prohibited, garden leave is quite rare in Canada. 4.0 out of 5 stars 16. Practice Areas > However, fathers are also entitled to parental leave in all jurisdictions. 2018 was a whirlwind of statutory changes in the employment law world, which has perhaps overshadowed the judicial developments that have taken place in courts. However, if the employee is approached with a restrictive covenant during the term of employment, additional consideration (which could take the form of financial compensation, but also of a promotion, for instance) must be given to the employee in exchange for the restrictive covenant. In Québec, a mass termination occurs when 10 employees or more are terminated within a two-month period. Employment Law videos and latest news articles; GlobalNews.ca your source for the latest news on Employment Law . Some jurisdictions also prohibit discrimination based on gender identity and/or expression, or on criminal convictions pardoned or unrelated to employment. Employment law includes both the common, or judge-made, law of "master and servant," which is concerned mainly with wrongful dismissal, and a complex mass of statute law dealing with minimum labour standards, human rights, occupational health and safety and workers' co… The Supreme Court will hear a slate … Maternity leave is an unpaid entitlement. In such a case, the employment relationship of non-union employees is deemed to be severed by the purchase, and there is no obligation on the purchaser to offer these employees employment. 6.8 Can employers settle claims before or after they are initiated? Employment Law; Case Results; Blog; Contact; X Close; How to establish an employment discrimination case. 4.6 Are employees entitled to work flexibly if they have responsibility for caring for dependants? 7.2 When are restrictive covenants enforceable and for what period? Situations in which those minimums do not apply are limited to specific circumstances such as wilful misconduct or serious reason, or in the case of fixed-term contracts. Generally, if an employer prefers that an employee not work during the notice period, the employer will simply pay compensation in lieu of notice. October 16, 2020: Fraser v. Canada (Attorney General) 38505: 2020 SCC 28: October 9, 2020: Matthews v. Ocean Nutrition Canada Ltd. 38252: 2020 SCC 26: October 2, 2020: Chandos Construction Ltd. v. Deloitte Restructuring Inc. 38571: 2020 SCC 25: September 18, 2020: Michel v. Graydon : 38498: 2020 SCC 24: September 10, 2020: Bent v. Platnick 38374: 2020 SCC 23 Undue hardship is a very high threshold to reach and is determined having regard to factors such as costs, operational requirements and health and safety concerns, amongst others. COVID-19 – the 75% wage subsidy Canada took longer than many countries to introduce a meaningful wage subsidy. Clarity is key when it comes to drafting and enforcing termination clauses in employment contracts Dec 01, 2020 Toronto police officer gets $85,000 for sexual harassment, discrimination However, where there is a collective agreement or where the employment relationship is subject to privacy legislation, such monitoring is not usually allowed, except where the employer can establish that the employee has no or a limited expectation of privacy in relation to the information being monitored. Paperback. The 7 big Supreme Court cases to watch in 2020. 4.9 out of 5 stars 20. 1. Already registered? Typically, proceedings before administrative boards or tribunals may be finalised within 12 to 18 months, while court proceedings generally take up to a few years. Does an employee have to pay a fee to submit a claim? Employers must also attempt to accommodate employees to the point of undue hardship. Similarly, where the sale concerns a unionised business, the purchaser is deemed to be a successor employer and becomes bound to the vendor’s collective agreement(s). On the other hand, unionised employees and employees from the federal sector, Québec and Nova Scotia who have been dismissed can generally file a grievance or complaint seeking reinstatement and lost wages where their dismissal was not for just cause. 3.8 Are there any specific rules or requirements in relation to whistleblowing/employees who raise concerns about corporate malpractice? Unions are generally prohibited from engaging in strikes or picketing while a collective agreement is still valid. 8.4 Are employers entitled to monitor an employee’s emails, telephone calls or use of an employer’s computer system? 4.4 Do fathers have the right to take paternity leave? Canada Although outside use is harder to control, employers are allowed to place limits on such use, namely where employees use social media through employer-provided equipment, or, in some cases, where this use has a direct impact on the employer’s business interests. Top 80 Employment Law Blogs And Websites To Follow in 2020 (Labour Blogs) ... Canada About Blog An employment law blog for employers and employees. ICLG - Employment & Labour Laws and Regulations - Employers also have a number of implied duties, such as providing a work environment that is safe and secure, and providing reasonable notice of dismissal to their employees in case of termination without cause. Employment relationships in Canada are generally governed by employment contracts, subject to labour and employment legislation, as well as the common law, or, in Québec, the Civil Code. In some cases, counsel have to update their templates to ensure that they will be upheld. Just when employers thought the dust had settled on holiday pay case law, the Northern Ireland Court of Appeal (NICA) threw a spanner in the works with its decision in Agnew, in which it refused to limit workers’ historic claims for the unlawful exclusion of overtime from holiday pay calculations. A number of human rights tribunals and commissions across Canada also exercise broad remedial powers and can order various forms of non-monetary relief (sometimes including reinstatement) to successful claimants. For instance, educational or social institutions or organisations that are primarily engaged in serving the interests of persons identified by a particular characteristic may reasonably give preference in employment to candidates who identify with that particular characteristic as well without it being deemed discriminatory. How are works council representatives chosen/appointed? Employment contracts implicitly include a number of obligations for both employees and employers. Is consent from a third party required before an employer can dismiss? If so, on what grounds is discrimination prohibited? For employers and HR professionals, 2020 has been a year like no other. 8.1 How do employee data protection rights affect the employment relationship? Finally, some statutory exemptions may also be raised in defence to discrimination claims. 8.5 Can an employer control an employee’s use of social media in or outside the workplace? Similarly, non-union employees in Québec, Nova Scotia and the federal sector cannot be dismissed without just cause where they have completed a number of years of service with the same employer. Employers can and are often encouraged to settle claims at any point during the complaint process, both before and after a formal claim is filed or initiated. In what circumstances is an employee treated as being dismissed? In this ever-changing landscape, it is increasingly important to keep up to speed on the latest employment legal cases and developments. The Employment Law Alliance is a comprehensive global network of local labor, employment and immigration attorneys that delivers timely solutions to employment law matters wherever business takes place. If employees believe that their employer did not comply with mass termination requirements, they may file a complaint with the employment standards commission or board of their jurisdiction. 5.4 Can employees be dismissed in connection with a business sale? Gowling WLG's employment, labour & equalities experts bring you the latest top five employment law developments that may affect your business: Unfair dismissal: what the employer is deemed to know; Unfair dismissal: risk of reputational damage of employee facing criminal charges; Disability discrimination: guidance on meaning of … Personal information can generally only be collected for a rational purpose, and its distribution must be limited. The delay before parties to an employment-related complaint obtain a final decision depends on the forum in which the complaint is heard. Regardless of the reason, termination of employment must be made in compliance with any applicable employment standards legislation, contract of employment or collective agreement. 3.1 Are employees protected against discrimination? Similarly, in some jurisdictions, questions relating to a prohibited ground of discrimination can be lawfully asked to employees in the context of a program aimed at preventing social inequalities or disadvantages. Bostock v. Clayton County, 590 U.S. (2020) Employment law in Canada generally refers to the law governing the relationship of an individual employee to an employer, as distinguished from LABOUR LAW, the law of unionized COLLECTIVE BARGAININGrelationships. ICLG - Employment & Labour Laws and Regulations - Canada covers common issues in employment and labour laws and regulations – terms and conditions of employment, employee representation and industrial relations, discrimination, maternity and family leave rights and business sales – in 51 jurisdictions. 6.1 Do employees have to be given notice of termination of their employment? In 2012, we reported on an Ontario jury award of approximately $1.5 million damages to a 42-year-old former assistant manager who resigned her employment at Wal-Mart after being verbally abused and harassed by her 32-year-old store manager. Generally, however, employers will not have to give notice or severance pay to employees being dismissed for serious reason or wilful misconduct. Employers can control an employee’s use of social media in the workplace through workplace policies. These payments are funded by deduction at source. Canadian employers are not required to set up work councils. 8.2 Do employees have a right to obtain copies of any personal information that is held by their employer? Any monitoring of employees’ personal information must also be conducted through the least intrusive means possible, and only for reasonable and legitimate business purposes in order to be valid. 9.1 Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition? Non-solicitation clauses are somewhat easier to enforce, because they do not have as great an impact on trade. The situation is different in an asset transfer, as the legal identity of the employer does change. Can employers settle claims before or after they are initiated? Specifically, the Act is aimed at raising awareness of wage gaps that affect women, Indigenous peoples, persons with disabilities and members of visible minorities. 2.7 Are employees entitled to representation at board level? 4.3 What rights does a woman have upon her return to work from maternity leave? The question of overlapping jurisdiction between a human rights tribunal and a labour arbitrator on a complaint of discrimination is set to reach the Supreme Court of Canada (“SCC”), following... David Matthews was a skilled food scientist who, the courts have found, was forced out of his job at Ocean Nutrition and entitled to 15-months notice. Canada. 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