2: The Legal Framework
HRM’s Legal Background
In Canada, two legal frameworks are applied and subsequently, two sets of legislation. Provincial and territorial.
Federally, we have the Canada Labour Code and the Human Rights Act.
In Alberta, we have the Employment Standards Code, the Labour Relations Code, the Occupational Health and Safety Act and the Alberta Human Rights act.
Both sets of legislation deal with discrimination, bona fide occupational requirements, reasonable accomodation and harassment.
Prohibited grounds: race, national/ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disabilities, genetic characteristics, pardoned convictions, pregnancy, political belief.
Systemic discrimination: the exclusion of members of certain groups through the application of employment policies or practices based on criteria that are not job-related.
Bona Fide Occupational Qualification: job qualifications that may be discriminatory due to business or safety reasons.
Physical tasks and jobs → e.g. people who are unable to lift must be reasonably accommodated.
e.g. on capability to perform a job, e.g. firefighters.
e.g. capacity to perform a job, e.g. a womens shelter as many have been traumatized by men.
Reasonable accommodation: making adjustments to any aspect of working conditions to prevent discrimination.
Employers are expected to accommodate to the point of undue hardship. Small and large organizations have different definitions for this.
Harassment: any conduct or comment that a reasonable person would consider objectionable or unwelcome.
Includes a variety of workplace behaviours and actions.
What is a “reasonable person”?
Can be costly to an organization.
Policies and procedures are necessary to deal with harassment — by law, an investigation must be conducted.
e.g. verbal abuse, physical abuse, jokes and innuendo. Anonymous behaviour online has proliferated this behaviour.
Employment Standards Legislation
These are the minimum obligations of employers.
Usually, they reflect views of government in relation to social policy.
Covers rights such as:
hours of work
overtime pay
vacation pay
Administered by an agency or commission that both interprets and enforces legislation.
Health & Safety Legislation — Workers Compensation
WCB governs employer responsibility to provide healthy and safe workplaces.
Administered through government agencies.
Provides monetary payment to employees if illness or injury has been caused by their job.
Employment Equity: a distinct Canadian process for achieving quality in all aspects of employment.
Pay equity: the practice of equal pay for work of equal value.
Diversity: the combination of organizational policies and practices that supports and encourages employee differences in order to reach business objectives.
Inclusion: putting the concept of diversity into action.
Many organizations are pulling diversity, equity and inclusion goals.
Diversity usually results in better business decisions.
Ethics: things that matter to us that motivate our behaviour.
Employee Rights
Employee rights: expectations of unbiased treatment from employers.
Guarantee of fair treatment from employers, particularly regarding an employee’s right to privacy.
Employers must exercise “reasonable care”
Employers can be held negligent by outside parties or employees if reasonable care is not exercised.
Protection Rights
Statutory rights: rights that derive from legislation
Contractual rights: rights that derive from contracts
Due process: the right to be heard, especially during a disciplinary process.
Employment rights are not a guarantee. e.g. COVID. If it comes to preserving the greater good, our rights can disappear through legislation.
e.g. private medical information collected during the pandemic in fall out of COVID vaccinations, vaccine passports etc.
Job expectancy rights
Substance abuse and drug testing
Must have consent and/or a bonafide occupational requirements. Safety-sensitive roles. Protected from invasive testing. Drug addictions and alcoholism are considered disabilities.
Employee privacy
Employer apps on personal devices.
Access to employee file
Electronic privacy
Cannot be taped without knowledge; no surveillance. Otherwise, very little privacy protections.
Employee conduct outside of the workplace
How do you separate professional obligations from one’s personal life?
Business on the behalf of an employer can result in punitive measures. → dependent if anything is done that can be tied back to the employer.
Vicarious liability: e.g. paid for box seats and the employer can be held liable.
Management Rights & responsibilities
Hiring and terminating
Managers function as representatives of the company.
Must be aware of responsibilities regarding the treatment of employees.
Disciplinary Policies and Procedures
Appropriate action and fair process
Effective policies and guidelines to use
Key responsibility for discipline rests with the employee’s immediate manager.
Expectation setting
Clearly stated expectations are the foundation for an effective discipline system.
Hold employees accountable and provide regular feedback.
Ensure that goals are measurable.
Discipline
treatment that punishes; OR; orderly behaviour in an organizational setting; OR, training that moulds and strengthens desirable conduct or corrects undesirable conduct and develops self-control
Attendance issues
Being untruthful
Work performance
Behavioural issues
Disciplinary investigations are fair processes that gather all information, consider requirements for accommodation, interviews the employee and their manager. It must be an expedient and objective process.
Disciplinary action must be documented accurately and completely. Previous warnings must be noted. Employee files must have this information retained.
Progressive discipline: increasing corrective measures
Positive discipline: joint responsibility; educate and involve them.
Termination
Just cause: clear and consistent performance expectations, seriousness incidents, employee has been given time/opportunities/resources to improve
Investigation and warning to employees have been given
Appropriate consequences have been tasked
Proof must be provided.
Wrongful dismissal: terminating an employee’s employment without just case.
Constructive dismissal: Changing an employee’s working conditions such that compensation, status or prestige is reduced.
When terminating:
it’s a stressful time for both the manager and employee.
Must be a well-planned out, calm and brief meeting
Ensures the employee’s legal rights are not violated
Employee’s departure from the work location.
Distinction between the employee’s property and the company’s property must be established.
Confidential (NDAs)
Career and outplacements must be arranged.
Managers can fail to take disciplinary action when they lack documentation, lack support from senior management, are uncertain about facts or if they want to seem as likeable.
When appealing disciplinary actions, there are several methods:
Alternative dispute resolution
Negotiation
Mediation
Ombudsperson
Arbitration
Liveable wage: $23/hour. Industry loves to lobby the UCP and love to blackmail workers with AI.
Basic employee conditions / labour legislation / occupational health & safety & WCB / human rights / privacy laws
Employee vs Contractor
Employees: CRA possesses a distinct way to collect taxes as employers are required to deduct taxes.
Employers are also required to pay for Workers Compensation Board
Contractors: self-employed, no taxes deducted, considered to be working on their own time with control over how and when they work.
Employers can recruit independent contractors and treat them as employees. The CRA investigates this misclassification. CRA audits you, charge interest, investigate you to death.
e.g. Shaw misclassified employees as contractors. Shaw tells us when we work, how to work, actually work at Shaw, yet they’re contractors. No benefits, no employee perks, no compensation.
Employment Standards
Employee Standards from the provincial government makes employment law accessible. These are the minimum standards.
Deductions from Earnings
They can take income tax, group benefits, EI, CPP.
Overpayment, recovery of undue vacation payment
Loss and breaks can’t be deducted from your paycheque.
loss and breakage, e.g. gas station attendants
Job-protected leaves
Everything you had before you took a leave of absence is protected.
e.g. maternity leave came into effect in the 60s.
Bereavement/illness/care/child/domestic violence/maternity/responsibility/reservist
Death of a child: employers were not required to provide leave for the death of a child or their kidnapping. Reflects expectations of society.
Domestic violence is a precursor to workplace violence.
e.g. Calgary Zoo stalking story.
Employer can be found criminally negligent
Termination & Layoffs
2 weeks resignation is required by law.
Layoff: temporary cessation of employment.
Termination without cause: money to go away.
Notice period based on service length.
Case law is that for every year worked is an additional week of pay.
Statutory notice & severance notice which waives the right to sue.
Hospitality Employment Standards
e.g. a 13 year old wants a job; the employer requires a permit.
Human Rights
Protects employees from discrimination and harassment in the workplace.
Based on “protected grounds” — cannot be adversely impacted by these.
In Alberta, they can discriminate based on criminal records. Falls solely on a protected ground.