Employment Law Issues (9:V)

Use this section to identify any potential issues the employee might have. Note that this section is geared towards identifying the most common employment law issues for provincially regulated non-unionized employees (see Section III: Preliminary Matters to determine whether the worker in question is a provincially regulated non-unionized employee). However, many issues will apply in a similar fashion to federally regulated employees, and some issues will also apply to unionized employees.

Generally, employment issues arise as a breach of the Human Rights Code, the Employment Standards Act, or an employment contract. Take note of which of these legal protections applies for the issue that you identify, and then see Section V: Remedies to find out how to proceed.

A. Common Employment Law Issues

1. Discrimination in Employment

For provincially regulated employees, the Human Rights Code prohibits discrimination in employment on the basis of the following prohibited grounds (ss 13, 43):

• Race
• Colour
• Ancestry
• Place of Origin
• Political Belief
• Marital Status
• Family Status
• Physical or Mental Disability
• Sex (this includes sexual harassment, and discrimination based on pregnancy or transgendered status)
• Sexual Orientation
• Age (only those over 19 years of age are protected by this provision)
• The person was convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person
• The person complains or is named in a complaint, gives evidence, or otherwise assists in a complaint or other proceeding under the HRC

This prohibition against discrimination in employment includes discrimination in the hiring process, in the terms and conditions of employment, and in decisions to terminate employment. Employment agencies also must not refuse to refer a person for employment based on one of the prohibited grounds for discrimination. Trade unions, employer’s organizations, and occupational associations cannot discriminate against people by excluding, expelling or suspending them from membership (s 14).

There must be no discrimination in wages paid (s 12). Men and women must receive equal pay for similar or substantially similar work. Similarity is to be determined having regard to the skill, effort, and responsibility required by a job. Family status protection includes childcare and family obligations. See Johnstone v Canada Border Services (2010 CHRT 20).

For more information about each of the prohibited grounds, see Chapter 6: Human Rights, Section III.B: Prohibited Grounds of Discrimination. See also “Recent Human Rights Cases of Interest for Employment Lawyers”, Michael A. Watt, Employment Law Conference 2014, Paper 4.1, CLE BC.

Though generally employers are prohibited from discriminating against employees, it is permitted if the discrimination is required due to a bona fide occupational requirement (ss 11, 13).

Once it appears that the employee has been discriminated against based on a prohibited ground, see Section V.C: The B.C. Human Rights Tribunal of this chapter for basic information on remedies for discrimination, or see Chapter 6: Human Rights, Section III.C: The Complaint Process for more detailed information.

Federally regulated employees are covered by the Canadian Human Rights Act.

Similar protections are provided to that of the Human Rights Code, though they are not identical.

The federal act allows employers to have mandatory retirement, whereas in BC, the provincial code was amended in 2008 to prohibit mandatory retirement.

Federal equal pay provisions in the Canadian Human Rights Act are somewhat broader than those found in B.C.’s Human Rights Code. It is discriminatory under the Canadian Human Rights Act to pay male and female employees different wages where the work that they are doing is of comparatively equal value. This means that even if the work itself is not demonstrably similar, the pay equity provisions may still be enforced if the value of the work is similar. Factors that are considered in determining whether work is of equal value include: skill, efforts and responsibility required, and conditions under which the work is performed (Canadian Human Rights Act, s 11(2)).

2. Retaliation for Filing a Complaint

Generally, employers are not permitted to retaliate against an employee who files a statutory complaint.

A provincially regulated employee might file a complaint against an employer at the Employment Standards Branch, the Human Rights Tribunal, or with WorkSafe. The Employment Standards Act, the Human Rights Code, and the Workers Compensation Act each contain provisions which prohibit retaliation for filing complaints.

a) Employment Standards Act

An employer may not threaten, terminate, suspend, discipline, penalize, intimidate, or coerce an employee because the employee filed a complaint under the ESA (s 83). If this does happen, the Employment Standards Branch may order that the employer comply with the section, cease doing the act, pay reasonable expenses, hire or reinstate the employee and pay lost wages, or pay compensation (s 79). A complaint may be filed with the Employment Standards Branch

b) Human Rights Code

A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code (s 43). If a person is discriminated against in such a manner, they may file a complaint at the Human Rights Tribunal in the same way that they would complain about any other discriminatory practice; see Chapter 6: Human Rights, Section III.C: The Complaint Process.

c) Workers Compensation Act

Employers and unions must not take or threaten discriminatory action against a worker for taking various actions in regards to the Act, such as reporting unsafe working conditions to a WorkSafe officer (s 151). Remedies include the ability to reinstate the worker to their job (s 153). Additional details are set out in the Workers Compensation Act, Division 6 – Prohibition Against Discriminatory Action. To file acomplaint, see the WorkSafeBC website

d) Common Law Issues/Internal Complaints

An employee may face retaliation for bringing an internal complaint, possible through a formal complaint process outlined in an employment policy. If the employer retaliates against the employee in a significant manner, this could constitute a constructive dismissal. In addition, if the employer dismisses the employee following a legitimate complaint, this may form grounds for an aggravated damages claim.

3. Employees’ Privacy

a) Legislation

There are three statutes in BC that concern privacy.

The Privacy Act, RSBC 1996 c 373, creates a statutory tort for breach of privacy. Whether a person’s actions or conduct constitutes tortious conduct depends on what is reasonable in the circumstances. An action for breach of privacy can only be brought in BC Supreme Court.

The Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165, [FOIPPA] applies to public bodies such as governmental ministries, universities, health authorities, etc. It gives individuals a right to access information held about themselves and access to many documents held by the public bodies. It also governs the collection, use, and disclosure of personal information, including public bodies’ employees’ personal information.

The Personal Information Protection Act, SBC 2003, c 63, [PIPA] applies to almost all organizations that are not public bodies covered by FOIPPA. It governs the collection, use, and disclosure of personal information, including employees’ personal information.

b) Balancing Employer and Employee Interests

Generally, employers can collect information that is reasonably necessary in the circumstances. Some of the factors to be considered are whether the collection of the personal information is required to meet a specific need, whether the collection of information is likely to meet that need, whether the loss of privacy is proportional to the benefit gained, and whether there are less privacy-invasive methods of achieving the same end, per Eastmond v Canadian Pacific Railway, 2004 FC 852. In that case, surveillance of a rail yard was permitted after there were a number of incidents of theft, trespassing, and vandalism. GPS tracking of employees’ work vehicles has also been permitted (Schindler Elevator Corporation, Order P12-01, 2012 BCIPC 25), though it generally necessary for the employer to inform the employee of the GPS tracking.

Random drug and alcohol testing can run afoul of privacy legislation. If the workplace is hazardous, this is not sufficient to justify random testing. There must be an additional factor, such as a general substance abuse problem at the workplace. If this additional factor is not present, then the employer cannot randomly test everyone in the workplace, but can test individual employees if there is reasonable cause to believe the employee was impaired while at work, was involved in a workplace accident, or was returning to work following treatment for substance abuse (Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34). For more information about alcohol and drug testing, consult “Alcohol and Drug Tests in the Workplace”, Kenneth R. Curry and Kim G. Thorne, Employment Law Conference 2014, Paper 1.1, CLE BC.

Other issues involving employee privacy may arise if an employer requests an employee’s medical information, monitors computer usage, or wishes to conduct personal searches of employees. Privacy laws are constantly evolving, and research should be done to determine whether the employer may be breaching privacy legislation.

Complaints regarding a breach of FOIPPA or PIPA can be filed with the Office of the Information and Privacy Commissioner for British Columbia.

4. Termination

One of the most frequent issues students will have to address is to advise an employee of his entitlements following termination of employment. See IV.D: Termination of Employment below.

5. Failure to Comply with Statutory Requirements

Employees often have complaints that their employers is not providing them with their statutory entitlements under the Employment Standards Act, such as a failure to pay overtime wages or vacation pay. See IV.C. Employment Standards Entitlements for a discussion on this topic.

B. Employment Standards Act

For provincially regulated employees, the ESA sets the minimum standards for how an employer can act during the course of employment. The ESA addresses some of the most basic employee entitlements, such as wages, vacation pay, holiday pay, overtime, pregnancy and other leaves, and termination standards.

For federally regulated employees, the Canada Labour Code sets these minimum standards. This section primarily discusses the ESA, but the Canada Labour Code has many similar provisions.

Be aware that certain professions and employees are exempt from the ESA, or parts of the ESA. Review the Employment Standards Regulations to determine if the employee is covered by the ESA.

See IV.B.10: Exceptions to the General Rule (Specialty Professions) to determine whether the ESA applies to the employee in question. See IV.B.6: Hours of Work and Overtime Pay to determine if the employee is exempt from overtime.

1. Hiring Practices

An employer may not induce a person to become an employee or to make him or herself available for work by deceptive or false representations or advertising respecting the availability of a position, the nature of the work to be done, the wages to be paid for the work, or the conditions of employment. If this occurs, the employee could file a complaint at the Employment Standards Branch per section 8 of the ESA, or could potentially sue for the tort of misrepresentation. For more information about this tort, see Queen v Cognos Inc, [1993] 1 SCR 87.

2. Employment Agencies

An employment agency is any person or company that recruits employees for employers for a fee. All employment agencies must be licensed and they must keep records. An employment agency may not receive any payment from a person seeking employment either for obtaining employment or for providing information respecting prospective employers. Any payment wrongfully received can be recovered under the ESA, s 11.

3. Talent Agencies

A number of the more recent amendments to the ESA deal with talent agencies and impose minimum standards on what was previously an unregulated industry. A talent agency must be licensed annually under the Act. Once an agency is licensed, it may receive wages on behalf of clients who have done work in the film or television industry. Section 38.1 of the ES Regulation provides that wages received by a talent agency from an employer must be paid to the employee within a prescribed period: five business days from receipt of payment if payment is made within B.C. and 12 business days from receipt of payment if payment is made from outside B.C.

Talent agencies can charge a maximum 15 percent commission, and must ensure that the employee receives at least minimum wage after this deduction. The only other fee a talent agency may charge is for photography, and this charge must not exceed $25.00 per year. This fee may only be deducted from wages owed to the employee. When a talent agency is named in a determination or order, unpaid wages constitute a lien against the real and personal property of the agency. A 1999 amendment to section 127 of the Act gives the Lieutenant Governor in Council the power to regulate these agencies and, accordingly, the ES Regulation should be consulted for further information. A list of talent agencies currently licensed in B.C. is available on the Employment Standards Branch website.

4. Child Employment

Employing a child is an offence for which both the employee and the employer are liable. The ESA does not apply to certain types of employment such as babysitters and some students (ES Regulation, s 32).

Section 9 of the ESA states that children under the age of 15 cannot be employed unless the employer has obtained written permission from a parent or guardian. The employer must have this written consent on file indicating that the parent or guardian knows where the child is working, the hours of the work, and the type of work. No person shall employ a child under the age of 12 years unless the employer has obtained permission from the Director of Employment Standards. In cases where permission from the Director is required, the Director also has the ability to set conditions of employment for the child. For complete details of conditions, see www.labour.gov.bc.ca/esb or call 1-800-663-7867.

Common forms of allowable employment for those under 12 are found in the film and television industries. For more information on the employment of young people in the B.C. entertainment industry, consult the Employment Standards Branch fact sheet on this matter. For more information regarding the employment of young people generally, see the fact sheet on this matter.

If an employer is accused of illegally using child employment they will carry the onus in proving that it was either justified, or that the child was of legal age.

5. Wages

a) Minimum Wage and the Entry Level Wage

As of September 15, 2015, the general minimum wage is $10.45 per hour for all persons in BC as indicated in Part 4 of the ES Regulation. One exception to this is liquor servers, who are entitled to a minimum wage of $9.20. Since tips and gratuities are not wages, employees must be paid at least minimum wage in addition to any tips or gratuities they receive. Please note that there are other exceptions under Part 4 of the ES Regulation, which include live-in home support workers, resident caretakers, and farm workers. See ss 16–18 of the ES Regulation.

The BC government has announced its commitment to yearly minimum wage increases linked to the BC Consumer Price Index. For more information regarding up to date information on minimum wage in BC, see the Minimum Wage Factsheet.

Section 16 of the ESA deals with the issue of “claw-backs”. This term refers to an employer who gives an employee an advance on future wages or commissions. Section 16 states that when the employer re-claims such advances, they must not take back an amount that would leave the employee under the minimum wage rate for the hours worked. Commission workers’ claw-backs must equal with the minimum wage.

Federally regulated employees are entitled to the minimum wage of the province that they work in (Canada Labour Code, s 178). Thus, federal employees working in B.C. are entitled to $10.25 per hour.

b) Payment of Wages

Wages must be paid semi-monthly and no later than eight days after the end of the pay period (ESA, s 17). This section does not apply to public school teachers and professors (ES Regulation, s 40). Wages, as defined in Part 1, include salaries, commissions, work incentives, compensation for length of service (ESA, s 63), money by order of the tribunal, and money payable for employees’ benefit to a fund or insurer (in Parts 10 and 11 only). The definition does not include, for instance, expenses, penalties, gratuities, or travel allowance (however, travel time is considered time worked for which wages are payable, whereas commuting time is generally not). An employer cannot require an employee to pay any of the employer’s business costs. Every payday, employees must be given a statement showing hours worked, wage rate/overtime wage rate, deductions, method of wage calculation, gross/net wages, and time bank amounts (ESA, s 27). Electronic statements can be provided instead under certain conditions (s 27(2)).

If an employee quits, all wages and vacation pay owed must be paid within six days of the last day worked. When the employer terminates the employment, all wages (and vacation pay) must be paid within 48 hours of termination (ESA, s 18). Certain notice requirements dictated by the ESA are set out later in this chapter.

To enforce the payment of wages, the ESA provides that the Director can arrange payment of wages to the employee, or to the Director, if he or she is satisfied that wages are owed to the employee. Under the ESA, only the Canada Customs and Revenue Agency has priority over the Employment Standards Branch. Finally, the Section 87 of the ESA provides that unpaid wages in a determination, settlement agreement or an order constitute a lien on real property owned by the employer. The enforcement mechanisms available to the Employment Standards Branch are such that the lien often gets priority over other claims against the property (see also Helping Hands Agency Ltd v British Columbia (Director of Employment Standards), [1995] BCJ No 2524 (BCCA)).

If an employee has not been paid wages, and the limitation date under the ESA has passed, the employee may still be able to file a claim in Small Claims Court, as it is a term of any employment contract that the employee be paid for their labour.

Federally regulated employees must be paid their wages on the regular payday as established by the regular practice of the employer. Wages and any other entitlements must be paid no later than 30 days after the time when entitlement to wages arose (Canada Labour Code, s 247).

c) Allowable Deductions

Only certain deductions can be made from an employee’s wages (ESA, ss 21 and 22). There must be written assignment of wages.

Allowable deductions include EI, CPP, income tax, charitable donations, maintenance order payments (such as spousal or child support), union dues, pensions, insurance (medical and dental), and payments to meet credit obligations. Benefit packages often allow a whole range of deductions from employee wages. In the case of an employer who fails to remit these deductions, the Employment Standards Branch will collect from the employer the premiums the employee paid. However, the Branch is not able to collect costs incurred by an employee who believed he or she was insured, i.e. actual cost of dental work done. If an employee has suffered a loss such as this, they should consider whether they have a contractual agreement with the employer, and whether it has been breached; if so, they may be able to recover the loss in Small Claims Court.

Section 22(4) of the ESA allows the employer to deduct money from the employee’s paycheque to satisfy the employee’s credit obligation (for example, if the employer has loaned the employee money, or if the employee has agreed to pay the employer a monthly sum for personal use of the employer’s car). To do this, the employee must make a written assignment of wages to the employer.

d) Business expenses charged to an employee

An employer cannot require employees to pay any business costs – as either a deduction from their paycheque or out of their pockets or gratuities. Examples of business costs include loss due to theft, damage, breakage, or poor quality of work, damage to employer’s property, or failure to pay by a customer (e.g. dine-and-dash). If an employer deducts business costs from an mployee’s wages they can be required to reimburse the employee for the amount, and can be fined by the Employment Standards Branch for failing to follow the ESA.

6. Hours of Work and Overtime Pay

Under the ESA, employees are generally entitled to be paid at overtime rates if they work over 8 hours in a day, or over 40 hours in one week. See the ESA, Part 4 which sets out overtime rates and entitlements.

a) Regular Hours and Rest Periods

An employer must not require or permit an employee to work more than eight hours per day or 40 hours per week as a rule, unless the employer pays overtime wages (ESA, s 35). An exception to this overtime rule is made for workers who have written averaging agreements under s 37 (see the next section for more information on averaging agreements). An employer must ensure that no employee works more than five consecutive hours without a half-hour meal break (s 32). Such eating periods are not included in hours of work. There is no entitlement to coffee breaks.

Employees are also entitled to at least 32 consecutive hours free from work each week or 1.5 pay for the time worked during that period, and eight hours free from work between shifts, except in the case of an emergency (s 36).

Federally regulated employees cannot work more than eight hours per day or 40 hours per week as a rule, but unlike provincially regulated employees there is a 48 hours a week maximum, even with overtime rates being paid (Canada Labour Code, s 171). Averaging agreements are allowed under the federal legislation. There are no specifications for meal breaks. Employees are entitled to one day off from work each week (Sunday if possible). There is no requirement for time off between shifts.

b) Overtime

Daily Overtime: Unless he or she has an averaging agreement, an employee must be paid overtime wages if he or she works more than eight hours in any one day. Employees are to be paid one and a half times their regular wage rate for time worked beyond eight but less than 12 hours in one day, and two times their regular wage rate for any time worked beyond those 12 hours in one day (ESA, s 40(1)). Weekly Overtime: Unless part of an averaging agreement, overtime must also be calculated on a weekly basis. For any time over 40 hours per week, an employee will receive one and a half times his or her regular wage (s 40(2)). When determining the weekly overtime, employers must use only the first eight hours of each day worked (s 40(3)). Essentially, this means that if an employee works six days out of the week, eight hours each day, eight of those hours have to be paid at one and one half times the regular rate. However, if an employee works 10 hours a day for four days a week, it would be calculated under daily overtime as the weekly hours still add up to 40.

c) Overtime Banks

Section 42 of the ESA allows for the “banking” of overtime hours on a written request from the employee, if the employer agrees to such a system. Hours are banked at overtime rates. The employee may ask at any time to be paid the overtime hours as wages, or to take these hours as paid time off of work at on dates agreed to by the employer and employee (s 42(3)). The employer may close the employee’s time bank with one month’s notice to the employee at any time (s 42(3.1)), and within six months of doing so, must either pay the employee for the hours in the time bank, allow the employee to take time off with pay equivalent to the amount in the time bank, or some combination of the two (s 42(3.2)). If the employee requests the time bank be closed, or if the employment relationship is terminated, the employer must pay the employee for the hours in the time bank on the next payday.

Many of the problems encountered by the Employment Standards Branch involve conflicts between the records of employers and the claims of employees regarding regular and overtime hours worked. Employees should always keep consistent records of the hours they work.

Federally regulated employees cannot opt for time off in lieu of overtime pay. All overtime hours must be paid at one and a half times the regular rate of pay (Canada Labour Code, s 174).

d) Employees and Occupations Exempt from Overtime

Part 7 of the ES Regulation excludes certain groups of employees from the following rules under Part 4 of the ESA. They may be excluded from Part 4 of the Act as a whole, or excluded from certain sections only. Please check the Regulation for more details.

A common situation is where the employer attempts to exclude the employee from overtime eligibility by calling the employee a manager. The Employment Standards Branch uses the definition of manager as set forth in section (1) of the Regulation. It is the nature of the job, and not an employee’s title, that makes that person a manager.

Be aware that even though an employee is considered a manager (or falls within another overtime exemption), the employee is still entitled to be paid for all hours worked. If a manager or other exempt employee works more hours than set out in their employment contract, they may be entitled to additional pay for those hours at a straight time rate.

The ESA Interpretation Guidelines provides some helpful discussion on overtime, and can be found at http://www.labour.gov.bc.ca/esb/igm/esa-part-4/igm-esa-s-35.htm .

Entitlement to overtime pay may be affected by an employment contract. If the employment contract specifies that an annual salary is in exchange for a set amount of hours over 40, this may impact the employee’s entitlement to be paid at an overtime rate.

e) Minimum Daily Hours

When workers report for work as required by an employer, whether or not they start work, they are entitled to two hours of pay unless they are unfit for work or do not meet Occupational Health and Safety Regulations. Whether or not an employee starts work, if an employer had previously scheduled an employee to work for more than eight hours that day, he or she is entitled to a minimum of four hours pay, unless inclement weather or other factors beyond the employer’s control caused the employee to be unable to work, in which case the worker is entitled to just two hours’ pay (ESA, s 34).

f) Shift Work

An employee is entitled to at least eight hours free between shifts, unless there is an emergency. Split shifts must be completed within a 12-hour period (ESA, s 33).

g) Variance

It is possible for an employer to apply for a variance to exclude employees from certain provisions of the ESA. To apply for a variance, the employer must write a letter to the Director of Employment Standards, and must have the signatures of at least 50 percent of the employees who are to be affected. When reviewing the application, the Director must consider whether the variance is inconsistent with the purpose of the ESA and the Regulation, and whether any losses incurred by the employees are balanced by any gains.

For more information see http://www.labour.gov.bc.ca/esb/facshts/variances.htm.

h) Averaging Agreements

Under s 37 of the ESA, an employee and employer can agree to average an employee’s hours of work over a period of up to four weeks for the purposes of determining overtime. These agreements must be in writing and be signed by both parties before the start date of the agreement and must specify the number of weeks over which the agreement applies. It must also specify the work schedule of each day covered by the agreement and specify the number of times if any that the agreement can be repeated. The employee must receive a copy of this agreement before the agreement begins. The work schedule in such an agreement must still follow conditions outlined from ss 37(3) – (9). The employer and employee may agree at the employee’s written request to adjust the work schedule (s 37(10)). The Employment Standards Branch will not get involved unless a complaint is made.

7. Vacation and Vacation Pay

Employees are entitled to both a minimum amount of annual vacation and to vacation pay under Part 7 of the ESA. Note that vacation time and vacation pay are separate entitlements under the ESA. Employees are entitled to both vacation pay and actual time away from work.

Employment contracts must provide at least the minimums vacation and vacation pay entitlements as set out in the ESA.

Employees can be entitled to vacation and vacation pay entitlements above the ESA minimums if agreed to in an employment contract.

a) Annual Vacation

After each year worked, employees are entitled to an annual vacation of at least two weeks. After five years employment, this entitlement increases to three weeks. Employees must take vacation each year.

Annual vacation is without pay, but the employee should receive vacation pay either in advance of his vacation, or on each paycheck. See Vacation Pay explanation below.

b) Vacation Pay

After 5 days of work, the employer is required to pay the employee 4% of his wages as vacation pay. After 5 years of employment, this increases to 6%. Employers are required to bank vacation pay for an employee, and then pay the employee their banked vacation pay 7 days before the employee’s annual vacation.

Alternatively, with written consent the employer can pay the employee his vacation pay on each paycheck. If the employee is terminated, the employer is required to pay out any vacation pay owing to the employee.

See Part 7 of the ESA, and the ESA Interpretation Guidelines, for a detailed explanation of vacation and vacation pay entitlement.

8. Statutory Holidays and Statutory Holiday Pay

Employees are entitled to ten paid holidays a year: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, B.C. Day, Labour Day, Thanksgiving Day, Remembrance Day, and Christmas Day (ESA, Part 5). “Family Day” is a new holiday as of 2013, and is scheduled to occur on the third Monday of every February. Boxing Day, Easter Sunday, and Easter Monday are not statutory holidays in B.C. Federal employees are entitled to Boxing Day but not to B.C. Day.

To be entitled to a statutory holiday, an employee must have been employed by the employer for at least 30 calendar days before the statutory holiday and either have worked under an averaging agreement within this period or have worked or earned wages for 15 of these 30 calendar days.

Employees who work on a statutory holiday receive one and one-half times their regular rate of pay for the first 12 hours worked. Any further time worked should be paid at twice the regular amount of pay. Where a statutory holiday falls on a non-working day, the employer must give the employee a regular working day off with pay. An employee who is given a day off on a statutory holiday or a day off instead of one must be paid statutory holiday pay equal to at least an average day’s pay.

An average day’s pay is the employee’s gross earnings in the past 30 days, divided by days worked, where:

• Amount paid is the total amount paid or payable to the employee for the work done and wages earned during the 30 calendar day period preceding the statutory holiday including vacation pay for any days of vacation within that period, less any amounts paid or payable for overtime; and
• Days worked are the number of days the employee worked or earned wages within the 30 calendar day period.

9. Leaves of Absence

Part 6 of the ESA regulates leaves of absence. Again, Part 7 of the ES Regulation should be consulted to determine if a client is covered by this part of the Act. Those employees who are not protected by the ESA may have protection under the governing statutes of their specific profession.

An employee who is on leave under any of the following categories maintains several of the same protections he or she received while working. The employment is deemed to be continuous for the purposes of calculating annual vacation entitlement and any pension, medical, or other plan beneficial to the employee (ESA, s 56). At the time of reinstatement, employees on leave are entitled to return to their previous position or to a comparable one, and are also entitled to any wage and benefit increases that they would have received had they remained at work (s 54).

An employer may not terminate an employee for taking a leave he or she is entitled to take under the ESA. In the case of an alleged contravention of Part 6 by the employer, the burden is on the employer to prove that the reason for a termination was not a pregnancy, jury duty or other leave allowed by the Act (s 126(4)(c)). When there is an infraction of this section of the Act, the Director of Employment Standards can order that the employee be reinstated (s 79). However, this almost never occurs (see Section V: Remedies for more details). Section 79(2) is a very powerful “make whole remedy” which allows the Director to reinstate the employee and pay them any wages lost due to the contravention of the Act. Termination during a leave may also give rise to a cause of action before the Human Rights Tribunal.

If an employee was dismissed due to a leave of absence but the limitation date to file a claim with the Employment Standards Branch has passed, consider whether the employee may have a wrongful dismissal claim; see section IV.E: Termination of Employment.

NOTE: The protections offered under ss 54 and 56 of the ESA do not apply if the leave taken by the employee is greater than that allowed by the Act (s 54).

a) Pregnancy and Parental Leave

Pregnancy leave is protected under the Employment Standards Act and the Human Rights Code. An employee dismissed while on pregnancy leave may also be entitled to a larger common law severance.

Under ss 50 and 51 of the ESA, a birth mother is entitled to take up to 17 consecutive weeks of unpaid pregnancy leave if the leave starts before birth or termination of the pregnancy. In addition, the birth mother can take a further 35 weeks of parental leave where pregnancy leave was taken, or 37 consecutive weeks of parental leave where pregnancy leave was not taken. Although the employer does not have to pay wages during a pregnancy or parental leave, Employment Insurance may cover a portion of the wages during this period if the person qualifies. Please refer to Chapter 8: Employment Insurance for more information. The parental leave periods to which birth fathers and adoptive parents are entitled were also extended by the ESA from 12 to 37 consecutive weeks. Employees must give their employer four weeks written notice of pregnancy or parental leave, but even if they do not, they are still protected by the ESA.

The employer may request a medical certificate to verify an anticipated birth date or the date of pregnancy termination. Pregnancy leave may commence up to 11 weeks prior to the estimated date of birth, and no later than the actual birth date of the child; it ends between 6 and 17 weeks after the actual birth date. To request pregnancy leave for a period shorter than six weeks following the birth of the child or termination of the pregnancy, an employee must provide one week written notice to the employer and may have to supply a medical certificate confirming the employee’s ability to return to work. Parental leave can begin at any time within one year of the birth or adoption of the child and need not conclude within that year; however, it must all be taken in one block.

Pregnancy leave can be extended by six weeks with a doctor’s certificate outlining reasons related to the birth or termination. Parental leave can be extended by five weeks where the child has a psychological, physical, or emotional condition that requires such an extension.

An employer has a duty to allow the employee the leave he or she requests under the provisions of the ESA. Furthermore, upon the employee’s return from leave, the employer has a duty to place the employee in the same or comparable position to the position he or she held before the leave. The employer must not terminate employment because of leave taken, or change a condition of employment without the employee’s written consent.

Maternity rights are being quickly developed by the courts. Supreme Court decisions such as Brooks v.Canada Safeway Ltd., [1989] 1 SCR, 1219, should be reviewed before giving advice to clients with this type of grievance. This case says that pregnancy, while not considered a sickness or accident, is a valid health-related reason for absence from work.

If an employee has a dispute with their employer regarding pregnancy or parental leave, they may also be able to file a complaint for discrimination based on sex or family status with the Human Rights Tribunal. Additionally, where an employer offers compensation benefits for health conditions and then excludes pregnancy as a ground for claiming compensation, the employer may have acted in a discriminatory fashion.

If an employee has been terminated while on leave, in some cases they may be able to make a claim for wrongful dismissal in Small Claims Court. See Section V: Remedies for further details.

An employer can terminate the employment of a pregnant person if the termination is part of legitimate downsizing (s 54).

b) Family Responsibility Leave

An employee is entitled to up to five days of unpaid leave each year to meet responsibilities related to the health of an immediate family member or the educational needs of a child in the employee’s care (ESA, s 52). These days need not be consecutive, and their use is not restricted to emergencies. They may be used for meetings about a child’s schooling, meetings with a social worker, or other similar commitments.

c) Bereavement Leave

An employee is entitled to up to three days of unpaid leave on the death of a member of the employee’s immediate family (ESA, s 53). “Immediate family” is defined in the ESA as “the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee’s family.”

d) Compassionate Leave

As of April 27, 2006 the ESA was amended to allow an employee to take up to eight weeks of unpaid leave to care for a family member who is gravely ill and faces a significant risk of death within 26 weeks (s 52.1). The employee must provide a certificate from a medical practitioner stating that the family member faces significant risk of death. The eight weeks do not have to be taken consecutively, but they must be used within the 26-week period. If the family member is still alive after 26 weeks but still gravely ill, a further eight weeks can be taken; however, a new medical certificate must be provided by a medical practitioner. While on compassionate leave the employment is considered to be continuous. An employer must not terminate the employee, or change the conditions of employment while an employee is on compassionate leave, unless they obtain their written consent to do so. An employee may also qualify for a maximum of six weeks of pay through Employment Insurance for compassionate leave. For more information please refer to Chapter 8: Employment Insurance.

e) Jury Duty

An employee is entitled to unpaid leave to meet the requirements of being selected for jury duty (ESA, s 55).

f) Reservists’ Leave

Under certain circumstances the ESA now allows unpaid leave for reservists in the Canadian Armed Forces (ESA, s 52.2).

10. Exceptions to the General Rule (Specialty Professions)

Some professions remain excluded from the requirements of the ESA. However, this does not always mean an employer is fully excluded; they may only be exempted from parts of the legislation. Also, employers not commonly covered can apply to the Employment Standards Branch for a variance, making them fully exempt from the requested parts of the ESA. Students should check the legislation directly, and any appropriate case law on the matter.

a) Independent Contractors

See Section III.D: Employees vs. Independent Contractors to determine whether the worker in question is an employee or an independent contractor. The ESA applies only to employees.

b) Commissioned Salespeople

Commissioned salespeople are entitled to most of the protection the ESA has to offer. Look carefully at ES Regulation s 37.14. They are entitled to receive at least minimum wage, unless they sell heavy industrial/agricultural equipment, or sailing/motor vessels. If a salesperson is entitled to minimum wage and the total commission falls short of that, the employer must make up the difference.

The first issue to examine in the case of a commissioned salesperson is the terms of the employment contract. These will tell you when the commissions are to be paid. Employers are not bound to bi-weekly payment of commissions. However, even if the employee must wait for sales to be reconciled before being paid their commission, they must still be paid wages bi-weekly.

c) Farm Labourers and Domestic Workers

The ESA has special provisions for farm and domestic labourers. See the Act and Regulation for more details. A domestic worker must have a written employment contract and be registered with the Employment Standards Branch (ESA, ss 14 and 15). The Employment Standards Branch is working in cooperation with federal immigration officials to curb abuses of the program. The federal agency will ensure that the employer is registered with the Branch before entry of a new immigrant is authorized. In 2002, under the banner of creating a more flexible workforce, the ESA was changed to exclude domestic and farm workers from certain overtime laws. Essentially domestic and farm workers can have their hours averaged without the need for consent (see above at Section IV.B.6(h): Averaging Agreements).

Most migrant farm labourers will be paid in accordance with the amount of work produced, e.g. payment per weight of crop picked. While this is legal, it should be noted that hours must still be recorded, and payments made for the purpose of Employment Insurance. Abuses by employers in this area have been significant, and workers should be aware that the government may try to collect EI from their paycheques if it is not reported.

NOTE: The federal government via Citizenship and Immigration Canada administers the Live-in Caregiver Program. The Program came into effect on April 27, 1992. The purpose of the program is to prevent abuse and exploitation of domestic workers. The program was to clarify the employer-employee relationship by providing information on the terms and conditions of employment and on the rights of workers under Canadian law. The program also sets out educational requirements for live-in caregivers which are designed to aid a worker’s ability to get a job after gaining permanent residency status and leaving domestic employment. While the first-year assessment interview and in-Canada skills upgrading have been eliminated, the remaining requirements are very high, thereby forming a serious barrier for these women to enter Canada. The program requires the equivalent of a Grade 12 education (equivalent to second-year university in many countries) and six months of formal training in the caregiving field or one year of full-time paid work experience, and good knowledge of English or French. Further information is available from the West Coast Domestic Workers’ Association (see Appendix B.C: Referrals).

d) High Technology Professionals

The ES Regulation makes special provision for workers in the high technology sector. Most importantly, these professionals are exempt from the ESA provisions relating to hours of work, overtime, and Statutory Holidays (Parts 4 and 5). It is not easy, however, for an employee to qualify as a high technology professional – the criteria are very specific. See s 37.8 of the ES Regulation for a more detailed description, and especially if the employee deals with computers, information service, and scientific or technological endeavours.

e) Silviculture (Reforestation) Workers

Special rules apply to workers in the reforestation and related industries. A silviculture worker is paid on a piece rate basis. This is defined as a rate of pay based on a measurable amount of work completed (e.g., payment by the tree). Whatever the rate, it must exceed the minimum wage rate. The ES Regulation lays out specific requirements that employers in these industries must meet relating to shift scheduling, holiday pay, and overtime. The special regulations are intended to address the remote job sites and special piece rate payment schemes that are popular in this industry.

f) Professionals

The ESA does not apply to architects, accountants, lawyers, chiropractors, dentists, engineers, insurance agents and adjusters, land surveyors, doctors, optometrists, real estate agents, securities advisers, veterinarians, or professional foresters (ES Regulation, s 31).

g) Other exceptions to the ESA

There are additional exceptions and variances to the ESA set out in the ES Regulation, Part 7. Some of the professions for which there are exceptions or variances to the ESA include:

• Election workers
• Fishers
• Taxi drivers
• Logging truck drivers
• Newspaper carriers
• Oil and gas field workers
• Loggers working in the Interior
• Municipal police recruits
• Aquaculture – fin fish workers
• Miners
• Foster care providers

C. Breach of contractual terms of employment

The most common breach of an employee’s contract (whether the terms of that contract are oral or in writing or a combination of the two) is when an employee is fired without being provided with reasonable notice of that dismissal or being paid money in lieu of reasonable notice (i.e. severance). The failure to provide reasonable notice is also referred to as a wrongful dismissal. See the section on Termination below.

There are also situations during the employment relationship where an employer can breach other terms of an employment contract (other than the notice requirement). For example, an employer might fail to pay a previously agreed upon bonus to an employee.

Claims for breach of contract are addressed through civil court claims, either at Provincial Court or Supreme Court depending on the potential value of the case.

Suing an employer while still on working notice is a risky move, as a court can find that the act of suing an employer can amount to just cause.

While there is conflicting case law on whether an employer would have just cause to dismiss an employee who sues the employer while still employed, students should research this point further prior to advising an employee to sue their employer while still employed or during a period of working notice.

If an employer has significantly changed the type of work done by an employee, the employee’s rate of pay, or other working conditions, the employee may have been “constructively dismissed” and may be entitled to damages; see Section IV.D.1(d): Dismissal for further information.

Sometimes, a written contract, or certain provisions within it, will be invalid. See Section IV.D.1(a) to determine whether the contract or any of its provisions are invalid.

D. Harassment in the workplace

Bullying and harassment in the workplace are developing areas of the law. There are several possible avenues for addressing a complaint in this area if the issue cannot be resolved within the workplace.

Recently, the Workers Compensation Act was amended to cover mental disorders caused by workplace bullying and harassment (Workers Compensation Act, RSBC 1996 c 492, s 5.1); Chapter 7: Workers’ Compensation provides additional information on how to make a claim.

If the bullying or harassment is related to discrimination based on one of prohibited grounds listed in the Human Rights Code, the employee may be able to file a complaint with the Human Rights Tribunal; see Chapter 6: Human Rights for additional information.

Finally, the bullying or harassment could potentially constitute a constructive dismissal for which the employee could claim damages in court; see IV.D.2(d): Dismissal.

E. Termination of Employment

Employers can generally dismiss an employee at any time without cause and on provision of reasonable notice. In rare circumstances, employers can dismiss an employee for just cause, if the employee is guilty of serious misconduct.

Generally, dismissals are without cause. In without cause dismissal scenarios, employees are entitled to notice of dismissal, or pay in lieu of such notice, under both statute (ESA) and common law.

The ESA (or the Canada Labour Code for federally regulated employees) provides statutory minimums for notice, or pay in lieu, if an employee is dismissed from their employment. The maximum an employee would receive under the ESA is 8 weeks of notice or pay.

In addition, employees are entitled to a reasonable notice of dismissal at common law, or pay in lieu of such reasonable notice. The amount of reasonable notice, or pay in lieu, should be sufficient to allow the employee to find comparable employment, based on the employee’s age, length of service, and the nature of the employee’s position.

The entitlement to notice at common law is a contractual entitlement. All employees have a contract. It may contain written, oral, or implied terms, or some combination of those.

By default, there is an implied term in indefinite hire employment contracts that employers will provide employees with a reasonable notice of termination if they dismiss the employee without cause.

Employment contracts may contain a termination provision that sets out how much notice the employee will receive if the employer terminates him without cause.

If the employer fails to give the employee reasonable notice or pay in lieu, this would constitute a breach of the employment contract by the employer, and the employee could sue the employer in Small Claims Court or BC Supreme Court. This is commonly called a wrongful dismissal claim.

Generally, common law notice is much higher than the statutory minimum.

There are many potential issues involved if an employee is terminated. The below checklist and the information in this section of the chapter merely provide a starting point for further legal research.

1. Termination of Employment Checklist

☑ This section applies to both provincially and federally regulated non-unionized employees, dependent contractors, and independent contractors. It is necessary to determine which category the worker falls under. See Section III: Preliminary Matters to determine this.

☑ Determine whether the worker has an indefinite or fixed term contract of employment. See SectionIV.D.2(a): Indefinite vs. Fixed Term Employment for details, as some contracts that appear to be for a fixed term may be deemed to be of indefinite duration by the courts, particularly when the fixed term contract is renewed year after year.

• If the contract is for an indefinite term, or if the worker was dismissed part way through a fixed-term contract, go to the next step of the checklist.
• If the worker was dismissed at the end of a fixed-term contract of employment, then their contract has simply been completed and there is generally no further entitlement to severance pay (unless their contract specifies otherwise).

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