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Difference between revisions of "Employment Law Issues (9:V)"
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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. | 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 [[Legislation, Resources, and Referrals for Employment Law (9:App B)#C. Referrals | 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. | |||
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