Employment Law Jurisdictions

Employment law is specific to the jurisdiction that the employee is working within. For example, a company located in Alberta, but with offices in Ontario, is required to follow Ontario employment law for their employees located in Ontario (where they work, not where they live). Businesses should recognize that each jurisdiction applies rules and regulations regarding employee and employer’s rights and obligations that are specific to the region in question.

Employment law concepts are generally similar across all Canadian jurisdictions. There may, however, be differences within different Acts and statutes. For example, all provinces require a notice period when terminating an employee, but the notice period may be different across jurisdictions. Federally, the minimum notice period is two weeks and one week for each additional year of service, but Ontario has a higher notice period.

The Canada Labour Code

Although the majority of Canadian workers are covered under provincial labour laws there are some, including some First Nations bands and organizations, who are governed by federal labour law as set out in the Canada Labour Code (https://laws-lois.justice.gc.ca/eng/ACTS/L-2/index.html). As federal and provincial laws may be different it is important to know the regulations that apply to your business and workplace. The Canadian Labour Relations website provides a list and links to provincial and federal labour statutes here: https://www.canadianlabourrelations.com/canadian-labour-laws.html. Determining whether provincial or federal legislation is applicable to an employment circumstance can be particularly difficult where First Nations employers and employees are concerned. It is advisable to seek guidance from a legal professional to determine the employment and labour laws that apply if there is any uncertainty regarding jurisdiction.

Collective Bargaining Law in Canada

The Canada Labour Code (CLC) sets out the legal framework for collective bargaining in Canada, including the role of government in labour relations, the requirement for unions to be certified and for employers to recognize and bargain in good faith with unions, the right to collective workplace action (the right to strike) and procedures for resolving disputes. The CLC applies to federally regulated employers such as banks, airlines, telecommunications companies, and other businesses that operate across provincial or international borders.

Provincial Labour Relations:

Each province has its own labour relations act that governs unionization and collective bargaining in workplaces under provincial jurisdiction. These laws vary across provinces, but generally they provide for the certification of unions, collective bargaining rights, and dispute resolution procedures.

Freedom of Association:

Freedom of association is a fundamental human right that is guaranteed by the Canadian Charter of Rights and Freedoms. It is the right of individuals to join with others to form associations, such as trade unions, to collectively pursue goals of mutual interest. Trade unions are organizations of workers that are formed to protect the rights, interests, and benefits of their members. They work to ensure that workers receive fair wages and safe working conditions and promote the collective bargaining process.

Collective Agreements:

Collective agreements are formal, legally binding documents that are negotiated between a union and an employer, identifying the terms and conditions governing the employment for the workers in the bargaining unit, including wages, hours of work, and other benefits and conditions of employment.

Ontario Jurisdiction

The Ministry of Labour is mandated to advance safe and fair labour practices to support the social and economic well-being of workers in Ontario and is accountable for the administration of employment and labour legislation, compliance, enforcement, complaints investigation and settlement in the following areas of employment:

• Employment rights and responsibilities
• Occupational health and safety
• Labour relations

Employment Standards Act (ESA)

The Ministry of Labour is responsible for managing the Employment Standards Act (ESA) which outlines the rules and regulations regarding employment in the province of Ontario. At a high level, the ESA outlines the minimum requirements an employer must follow regarding the conditions of employment. The Act also outlines the legal rights and obligations which the employers and employees have to each other.

Most employees and employers in Ontario are covered by the ESA, but there are a few groups to which the Act does not apply including the following:

• Industries which are within Federal government jurisdiction like airlines, banks, the federal civil service, post offices, radio and television stations and inter-provincial railways.
• Individuals performing work under a program approved by a college of applied arts and technology or university.
• Secondary school students who perform work under a work experience program authorized by the school board that operates the school in which the student is enrolled.
• Inmates taking part in work or rehabilitation programs, or individuals who perform work as part of a sentence or order of a court.
• People who hold political, judicial, religious or elected trade union offices

 

Key areas of the ESA which all businesses should be aware of include:

• Minimum requirements for employee hours of work, meal breaks and rest period regulations
• Standards concerning payment of wages (including minimum wage), overtime pay calculation, and managing tips.
• Rights of employees to disconnect from work.
• Rules relating to electronically monitoring or employees
• Non-compete clause rules.
• Obligations regarding pregnancy and parental leave, sick leave, bereavement, family leave (caregiver, medical, child death, organ doner, reservists, infectious disease, emergency and related).
• Public holidays and vacation day requirements are outlined.
• Standards related to termination of employment, temporary layoffs, and severance.
• Equal pay for equal work requirements.

Reprisals are prohibited

Employees may be reluctant to identify issues regarding fair employment practices and related rights due to a fear of reprisal from the employer. Therefore, it is important for employees and employers to understand that under the ESA any form of reprisal against employees who raise employment questions or concerns is prohibited.

Imagine a situation in which a server is scheduled to work an 8-hour shift with no breaks. The employee is aware that under the ESA the employer is obligated to include break periods and explains the requirement to the employer. In response, the employer reduces the employee’s weekly shifts. This reprisal is not permitted under the ESA and Ministry of Labour officials may direct employers to compensate and/or reinstate the employee, pay a penalty, or, in some cases, be subject to prosecution.

A guide to the Employment Standards Act provided by the Government of Ontario is available here:

https://www.ontario.ca/document/your-guide-employment-standards-act-0

It is a useful resource to help you navigate your rights and obligations.

Greater right or benefit

There may be cases in which employees agree to an employment contract or are governed by a collective agreement which provides employees with greater rights or benefits than the minimum standards under the ESA. In such cases, employees will receive the greater right or benefit.

No waiving of rights

If an employee enters an employment contract with terms and conditions that are less substantial than the ESA provisions, minimum ESA standards prevail and must be applied. Employees cannot waive or give up their rights under the ESA.

ESA Related Laws

The Employment Standards Act in Ontario is not the only statute addressing employee and employer rights and obligations. The ESA references and works in conjunction with several other acts including:

• Occupational Health and Safety Act
• Workplace Safety and Insurance Act, 1997
• Labour Relations Act, 1995
• Pay Equity Act
• Human Rights Code

Occupational Health and Safety Act (OHSA)

All employers have an obligation to create a safe work environment for their employees including protection from harassment and violence in the same way as employers protect workers from harmful chemicals or dangerous machinery.

The OHSA (https://www.ontario.ca/laws/statute/90o01) contains the regulations that employers must follow. A guide to the OHSA is available here: https://www.ontario.ca/document/guide-occupational-health-and-safety-act

Some key definitions provided within the OHSA include the following:

Workplace Harassment

Workplace harassment is defined in the OHSA as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome” and includes workplace sexual harassment.

The comments or conduct typically happen more than once. They could occur over a relatively short period of time (for example, during the course of one day) or over a longer period of time (weeks, months or years). However, there may be a situation where the conduct happens only once, such as an unwelcome sexual solicitation from a manager or employer.

Workplace harassment can include unwelcome and/or repeated words or actions that are known or should be known to be offensive, embarrassing, humiliating or demeaning to a worker or group of workers. It can also include behaviour that intimidates, isolates or even discriminates against a worker or group of workers in the workplace that are unwelcome.

This definition of workplace harassment is broad enough to include harassment prohibited under Ontario’s Human Rights Code, as well as what is often called “psychological harassment” or “personal harassment.”

Workplace sexual harassment

The OHSA defines workplace sexual harassment as:

engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

making a sexual solicitation or advance where the person making it is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

This definition of workplace sexual harassment is similar to the prohibitions on sexual harassment and sexual solicitation found in Ontario’s Human Rights Code.

Workplace violence

Workplace violence is defined in the OHSA as:

the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,

an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,

a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

This definition of workplace violence is broad enough to include acts that would constitute offences under Canada’s Criminal Code.

Employer Policies

All employers who are subject to the OHSA, must prepare policies with respect to workplace violence and workplace harassment and review them at least once a year.

In a workplace where there are six or more regularly employed workers, the policies are required to be in writing and posted in the workplace where workers are likely to see them.

Employer Programs

Employers must set up and maintain programs to implement workplace violence and workplace harassment policies. A workplace violence program must include the following:

• measures and procedures to control risks identified in an assessment of risks as likely to expose a worker to physical injury
• measures and procedures for workers to report incidents of workplace violence
• measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur, and
• how the employer will investigate and deal with incidents or complaints of workplace violence.

 

A workplace harassment program must include the following:

• measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor, and to another person if the employer or supervisor is the alleged harasser
• how incidents or complaints of workplace harassment will be investigated and dealt with
• how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless necessary for the purposes of investigating the incident or complaint, or for taking corrective action, or is otherwise required by law
• how certain workers will be informed of the results of the investigation and of any corrective action.

 

Under the OHSA, an employer must provide appropriate information and instruction to workers on the contents of the workplace violence and harassment policies and programs.

All workers should be aware of the employer’s workplace violence and harassment policies and programs. For workplace violence, workers should:

• know how to summon immediate assistance when workplace violence occurs or is likely to occur
• know how to report incidents of workplace violence to the employer or supervisor
• know how the employer will investigate and deal with incidents, threats or complaints of workplace violence
• know, understand and be able to carry out the measures and procedures that are in place to protect them from workplace violence, and
• be able to carry out any other procedures that are part of the program.

 

For workplace harassment, workers should:

• know how to report incidents of workplace harassment to the employer or supervisor
• know how to report incidents of workplace harassment where the employer or supervisor is the alleged harasser
• know how the employer will investigate and deal with incidents or complaints of workplace harassment
• know how information about an incident or complaint of workplace harassment will be kept confidential unless disclosure is necessary for investigating or taking corrective action, or is otherwise required by law
• know that the results of an investigation and any corrective actions will be provided to the worker who alleged workplace harassment and to the alleged harasser (if the alleged harasser is a worker of the same employer).

 

Practically speaking, workers may need other information and instruction on workplace violence and harassment, depending on their jobs. For example, supervisors may need additional information or instruction, especially if they are going to follow up on reported incidents or complaints of workplace violence or workplace harassment.

In order to protect a worker from workplace harassment, the OHSA requires that employers ensure that:

• an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
• the worker who was allegedly harassed, and the alleged harasser (if he or she is also a worker of the employer), are informed in writing of the results of a workplace harassment investigation and of any corrective action that has been or that will be taken as a result of the investigation; and
• they review the workplace harassment program as often as necessary, but at least annually, to ensure that it adequately implements the workplace harassment policy.

Assessment of risks for workplace violence

The employer must assess the risks of workplace violence that may arise from the nature of the workplace, type of work or conditions of work, ensure the assessment takes the circumstances into account that are specific to the workplace and circumstances common to similar workplaces, and include in the workplace violence program measures and procedures to control identified risks identified in the assessment as likely to expose a worker to physical injury.

Employers must repeat the assessment as often as necessary to ensure the workplace violence policy and related program continue to protect workers from workplace violence.

Note that an assessment of the risks of workplace violence should be specific to the workplace.

The OHSA does not require an employer to proactively assess the risks of violence between individual workers. It could be difficult for the employer to predict when violence may occur between individual workers. However, a review of incidents or threats of violence from all sources may indicate the origins of workplace violence and likelihood of violence between workers at a particular workplace.

The OHSA requires employers and supervisors to provide a worker with information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour.

Domestic violence

Employers who are aware of, or who ought reasonably to be aware of, domestic violence that would likely expose a worker to physical injury in the workplace must take every precaution reasonable in the circumstances to protect the worker.

Some indicators that domestic violence may occur in the workplace include reported concerns from the targeted worker or other workers, threatening calls or unwelcome visits at the workplace.

Measures and procedures in the workplace violence program can help protect workers from domestic violence in the workplace. For example, measures for the summoning of immediate assistance or for reporting of violent incidents could help protect workers from domestic violence when it may occur in the workplace.

Workers should be told that they can report their concerns to their employer if they fear that domestic violence may enter the workplace.

Employers must be prepared to investigate and deal with these concerns on a case-by-case basis. In addition to evaluating a worker’s specific circumstances, employers should determine how measures and procedures in the existing workplace violence program could be used to support the development of reasonable precautions for the worker.

Ontario Labour Relations Board (OLRB)

The Ontario Labour Relations Board is an independent, adjudicative tribunal that can issue decisions based on evidence presented and submitted by opposing parties. The OLRB function is to resolve disputes between employee and employers in a more efficient and specialized way than the traditional court system. More information on the role of the OLRB is available here: http://www.olrb.gov.on.ca/

Ontario Human Rights Commission (OHRC)

The Canadian constitution identifies specific human rights that must be protected, and such rights extend to employment contexts. To align with and support national and provincial regulations, the Ontario government created the following three agencies: the Ontario Human Rights Commission, the Human Rights Legal Support Centre, and the Human Rights Tribunal:

The Ontario Human Rights Commission works to promote, protect, and advance human rights through research, education, targeted legal action and policy development.

The Human Rights Legal Support Centre provides legal help to people who have experienced discrimination under the Human Rights Code, including those who may not have the resources to access the help they need regarding their human rights.

The Human Rights Tribunal is where human rights applications are filed and decided. The Tribunal hears cases submitted by people who feel their rights have been violated without the need to file suit through the courts directly.

The three agencies that form the Ontario human rights system operate together to ensure that the rights of employees and employers are observed and protected. For more information and education, the OHRC provides a “Human Rights 101” eLearning course which can be accessed here:

https://www.ohrc.on.ca/en/learning/elearning/hr101-3rd-edition

The Ontario Human Rights Commission website is here: https://www.ohrc.on.ca/en