The federal government has published the draft Workplace Harassment and Violence Prevention Regulations. The regulations will support the recently passed Bill C-65 and will replace the current workplace violence obligations in the Canada Occupational Health and Safety Regulations, as well as certain related provisions in the Maritime Occupational Health and Safety Regulations and the On Board Trains Occupational Safety and Health Regulations.
The Superior Court of Quebec has confirmed that the Public Service Commission of Canada has the power to order the hiring of a candidate who has been discriminated against. However, in order to do so, the commission must find that the plaintiff was reasonably the most capable candidate and would have certainly obtained the role had they not been discriminated against.
Budget 2019 proposes a number of employment-related changes focused on supporting and engaging the middle-class workforce. The most significant item in the budget is the announcement of a proposed new Canada Training Benefit, which proposes (among other things) a non-taxable training credit to help cover the cost of training fees for eligible workers aged between 25 and 64 years old.
The British Columbia government recently introduced Bill 8 – Employment Standards Amendment Act which, for the first time in more than 15 years, has introduced significant changes to the Employment Standards Act. For employers, the most significant amendments include the requirement that all of the main components of collective agreements 'meet or exceed' the corresponding parts of the act and the extension of the period for which employees can recover owed wages.
A recent Court of Appeal decision demonstrates the high cost of bad faith when terminating a senior employee for cause. The decision reads as a how-to guide in reverse (ie, what not to do when terminating an employee) and highlights that employers should not (among other things) refuse to inform a terminated employee as to why they are alleging cause or file baseless counterclaims.
The British Columbia Supreme Court recently considered how employers can properly address workplace conduct to minimise the risk of constructive dismissals. This case not only offers a useful summary of the law on poisoned workplaces, but also offers employers several practical suggestions on how to reduce this risk, including by implementing a respectful workplace policy and treating complaints seriously.
Canada has recently seen its lowest unemployment rate in nearly 40 years. However, despite this positive economic indicator, a majority of surveyed Canadians are experiencing a psychological recession. Such economic anxiety may be symptomatic of the uncertainty surrounding the modernisation of the Canadian economy and changes to the nature of work. The best way to respond to this economic anxiety is arguably to embrace the gig economy as part of the future of work.
A recent Ontario-based decision creates uncertainty for many Canadian and international employers operating in Canada that include mandatory arbitration clauses in employment or independent contractor agreements, because each province has a similar rule against contracting out of employment standards legislation. If the clauses could be interpreted as limiting the right to file a complaint with the Ministry of Labour or another employment standards regulator, they should be reviewed and revised by the company's lawyers.
How can an employer balance its obligation to maintain a safe workplace for its employees with its duty to accommodate an employee who has serious mental health issues? According to a recent arbitration award, an employer may inadvertently breach one statutory obligation by satisfying another. A single employee's rights – even human rights – cannot be considered in isolation and to the exclusion of the rights of all others.
The federal government has established an independent expert panel to provide advice and conduct consultations on the modernisation of labour standards in Part III of the Canada Labour Code. Among other things, the expert panel will study the federal minimum wage and whether it should be determined by the province in which an employee usually works or whether a freestanding federal minimum wage should be enacted.
In a recent case, the jail terms imposed on two directors following a workplace fatality were overturned on appeal and the C$250,000 fine imposed on the company was also reduced. While the results were good for the accused, the Court of Appeal's troubling comments will inevitably be used by prosecutors across Canada in an effort to obtain jail terms as appropriate sentences against directors.
The Federal Court recently clarified that employees may file an unjust dismissal complaint even if they have signed a release and any decisions by adjudicators to the contrary are bad law. This is an important decision for federally regulated employers that terminate without cause and offer a severance package conditional on signing a release as they must, among other things, adjust their settlement practices and releases to address the risk.
Employers should be mindful of a newly recognised form of discrimination that has captured the attention of legislators and the Canadian public: genetic discrimination. A bill is before the Ontario legislature that would prohibit employers from discriminating against employees based on their genetic characteristics. The courts have also started to weigh in on the issue in the context of the subjective component of discrimination or perceived disability.
The Police Record Checks Reform Act 2015, which recently came into force, standardises the types of police record check that can be performed and the types of information that can be disclosed. The new rules are important for employers that use police record checks to screen employees, applicants, volunteers or others. Employers must understand the differences between the three types of check to ensure that the correct check is requested in each situation.
Recreational cannabis was recently legalised in Canada. However, employers are confused as to whether recreational and medical cannabis should be handled differently under human rights laws. Among other things, employers can prohibit the possession of any recreational cannabis at work even though the possession of small amounts is now legal. Nevertheless, employers are obliged to accommodate – to the point of undue hardship – employees who are addicted to recreational cannabis.
In a recent case, an employer installed video surveillance in his office in order to catch employees rifling through his private filing cabinet. However, what was actually caught on tape was two employees doing something entirely different. This raised the question of whether the employer could use the footage as evidence to terminate the employees for just cause. A recent arbitration board's interim decision said yes.
Bill C-65 – which comprises an Act to Amend the Canada Labour Code (Harassment and Violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act 2017 – recently received royal assent. Among other things, the act will amend the Canada Labour Code and expand the obligations of federal employers, particularly in relation to workplace harassment and violence.
The new provincial government has been active in reshaping provincial employment and labour laws and responsibilities. In addition to passing Bill 47, the Making Ontario Open for Business Act 2018, the government has filed new regulations which will lower penalties for contravening the posting and record-keeping requirements of the Employment Standards Act. Further, the government's 2018 Fall Economic Statement outlines several initiatives and pledges which will be of interest to Ontario employers.
A recent British Columbia Supreme Court's decision is a cautionary tale for employers that terminate employment first and ask questions later. It is a reminder that failure to conduct a proper investigation into employee misconduct can undermine an employer's case for termination for cause. When considering the appropriate level of discipline, employers should consider all mitigating and aggravating factors before deciding on the appropriate discipline.
The requirement for employees to mitigate their damages following termination is generally helpful for employers during wrongful dismissal litigation, but this may not be the case when it comes to fixed-term employees. Employers that wish to use fixed-term employment agreements should ensure that they have airtight early termination provisions in their contracts and consider specifically obliging employees to mitigate.