Canadian Businesses Face Employment Law Disputes

retailSOS.ca | Gerry Spitzner
October 19, 2012

One of the biggest issues facing Canadian
Businesses today is...

 The Most Common Areas of Dispute
◦ Employment Contracts—interpretation and enforceability of
terms, conditions and clauses.
◦ Employment Dismissals / Terminations—wrongful,
constructive and for cause.
◦ Notice for Terminated Employees—disputes over severance
packages and terms of dismissal.
◦ Workplace Issues—harassment, violence, privacy, electronic
media use, disability, medical leaves and absenteeism.

retailSOS.ca | Gerry Spitzner 4

 Overview of the main BC Employment and
Labour Laws that govern the workplace

 Disclaimer: These items are intended for general informational purposes
only and should not be construed or relied upon as legal advice. The legal
issues addressed in these items are subject to changes in the applicable
law. You should always seek competent legal advice concerning any
specific issues affecting you or your business.


 What’s the difference?
◦ EMPLOYMENT LAW in Canada generally refers to the law
governing the relationship of an individual employee to an
employer,
◦ as distinguished from LABOUR LAW, the law of unionized
COLLECTIVE BARGAINING relationships.
◦ Employment law is concerned mainly with wrongful
dismissal, and a complex mass of statute law dealing with
minimum labour standards, human rights, occupational
health & safety and workers' compensation.


 Thoughtstarters
 Human Rights Act and BC Human Rights Code
 Employment Standards Act
 Labour Relations
 Workers Compensation Act
 Personal Information Protection Act (PIPA)


Managing The HR Process

Human resources
management (HRM) is a
process that can be
effectively and productively
managed.

 People Are An Investment in The Business
◦ Human resources (HR) are a substantial investment for
most companies.
◦ Employees are your internal customers.
◦ People are your most important resource.
◦ HRM is an on-going process that constantly needs
attention.
◦ Potential legal liability if HRM is not fair and consistent.
◦ Create a positive workplace


 Managing human resources is 10% law and 90%
process – the fairness and consistency of your
methods will determine your results

 Leadership, Communication and Systems are the key
to fairness and consistency


 “The most important thing in communication
is hearing what isn't said” - Peter Drucker, management ‘guru’

 The 3 Elements of Direct Face to Face Communication
◦ Words only account for 7% of any message
◦ Emphasis and Tone accounts for 38%.
◦ Body Language accounts for 55%.


 “You don't manage people; you manage
things. You lead people.” – Grace Hopper

◦ Manage things including processes, tasks, jobs, numbers
and information; lead people and teams.
◦ People are primarily emotionally driven; appeal to both the
heart and the head.
◦ The quality of your employee's work experience has a
direct impact on the quality of your customer's experience.


 Do positive employee relations and practices affect
customer experience?
◦ Obtaining a new customer costs 5 times more than
retaining a loyal customer, and replacing an employee will
cost 100% or more of that employee’s annual wages.
◦ Over 68% of customers leave a business relationship due
to attitude and indifference.
◦ Consider the cost to acquire a customer and the potential
Life Time Value ( L T V ) each one represents.
◦ Consider the cost of replacing & training a new employee.


There are currently four key
mechanisms in Canada to protect
human rights:
1. the Canadian Charter of Rights
and Freedoms,
2. the Canadian Human Rights Act,
3. Human Rights Commissions, and
4. provincial human rights laws
and legislation.

 Human rights laws operate in two jurisdictions: the
federal and the provincial
◦ Canadian Human Rights Act is administered and enforced by
the Canadian Human Rights Commission and Tribunal
◦ British Columbia Human Rights Code is administered by the
BC Human Rights Tribunal
◦ Both pieces of legislation are similar in the protections they
provide
◦ Neither the federal nor provincial legislation trumps or
supercedes the other. Rather, the appropriate legislation is
determined according to which level of government regulates
a specific area.


 A statute originally passed by the Parliament of
Canada in 1977
◦ goal of extending the law to ensure equal opportunity to
individuals
◦ based on a set prohibited grounds such as gender, disability,
or religion
◦ applied throughout Canada, but only to federally regulated
activities. (ie Fed Govt Dept’s, Crown Corps, private companies
such as airlines, banks, telephone, radio and TV stations)
◦ each province and territory has its own anti-discrimination
law that applies to activities that are not federally regulated


 Most significant impact on HRM comes from human
rights legislation.
 Human rights law entitles every Canadian to equal
opportunity to employment and the right to work each
day free of discrimination and harassment.
 Specifically, the act falls under the jurisdiction of the
Federal Justice Department.
 Comparable to Charter of Rights and Freedoms.


 Examples of areas regulated by the federal government
and governed by the Canadian Human Rights Act would
include employment and services of:
◦ the federal government and all its ministries;
◦ all arms of the federal government such as the R.C.M.P. the
Employment Insurance Commission or Canada Post;
◦ telecommunications, which are regulated by the CRTC, all inter-
provincial transportation such as Air Canada and Via Rail;
◦ chartered banks, but not credit unions; and
◦ all unions attached to any of the above.


 Prohibits discrimination in employment
advertisements, wages, employment standards,
and discrimination by unions and associations.

 If another statute, such as the Worker's
Compensation Act, conflicts with it, the BC Human
Rights Code takes priority.


 Discrimination and Harassment
◦ Discrimination and harassment is defined by it’s
effect, not the intention,
◦ does not have to be intentional to be illegal under
the Code.
◦ It is the employer's responsibility to maintain
working conditions free of discrimination and
harassment, regardless of whether the employer is
the cause of the discrimination or not.


 Workplace & Sexual Harassment
◦ Serious issue in today's workplaces and can be
quite costly for organizations.
◦ Ensuring a clear policy to address concerns and
steps to try to resolve issues is a firm step to
creating and maintaining a healthy workplace and
avoiding legal turmoil.
◦ Employers are responsible for protecting their
employees.


 Prohibited Grounds of Discrimination
◦ race, colour, ancestry, place of origin
◦ political belief, religion
◦ marital status, family status
◦ physical or mental disability
◦ sex, sexual orientation
◦ age
◦ conviction for a criminal or summary conviction offence
that is unrelated to the job in question


 Recruitment and selection
◦ Interviewing, reference checking
◦ Job postings
◦ The interview
◦ Making the offer
◦ Reference checks (calls from other employers)
◦ Social Media


 The BC Human Rights Code, applies to employers, service
providers and all provincially regulated businesses and agencies.
 Examples of provincially regulated areas include:
◦ all provincial, local & municipal government departments, services/policies;
◦ schools and universities;
◦ hospitals and medical clinics;
◦ all private businesses & services such as stores, restaurants, movie theatres;
◦ credit unions;
◦ non-profit organizations and some of the services they provide;
◦ rental accommodations including hotels and rental property; and
◦ the purchase of either residential or commercial property.


ESA is legislation enacted by
the provincial government to
protect the rights of working
people.


 If you are an employer in B.C., for most
occupations the applicable legislation is the
British Columbia Employment Standards Act.

 The ESA--refers to the basic or minimum
employment conditions in any organization.


 The purposes of this Act
◦ Sections within the act outline the employers
responsibility to their employees,
◦ Notably things such as minimum wage, meal
breaks, dispute resolution and parental leave.
◦ The act also works to protect residents of the
province by preventing employment
discrimination.


 Scope of this Act
◦ Applies to all employees other than those excluded
by regulation.
◦ If a collective agreement contains no provision
respecting a matter, the specified provision of this
Act is deemed to be incorporated in the collective
agreement as part of its terms.


 Wages and benefits
 Pay administration and payroll records
 Paydays
 How wages are paid
 Payroll records
 Deductions
 Assignments


Labour relations--governs the
relationship between a trade
union and an employer.


 The BC Labour Relations Board is
◦ An independent, administrative tribunal with the
mandate to mediate and adjudicate employment
and labour relations matters related to unionized
workplaces.
◦ The role of the union is to be the voice of
employees, particularly during collective
bargaining.


 The Labour Relations Code is primarily
concerned with collective bargaining and
labour management relations in BC.

 The Labour Relations Code governs all
aspects of collective bargaining amongst the
provincially-regulated employers and
employees.


 Collective Bargaining Agreements
◦ Collective bargaining produces a collective
agreement which is a legal document outlining the
terms and conditions of employment.
◦ Frequently referred to by the acronym of CBA.
◦ The labour contract sets down the relationship
between the employer and the employees and among
the employees themselves.
◦ The resolution of contract disputes is through a
grievance procedure.


This Act applies to all
employers, and all workers in
British Columbia except
employers or workers exempted
by order of the Board.


 Workplace policies and practices must
comply with applicable Occupational Health
and Safety laws and regulations.
 And with Workers' Compensation laws and
regulations, which deal with compensation
for accidents and disease.


 Occupational Health and Safety (OHS)
◦ The OHS Regulation contains legal requirements
that must be met by all workplaces under the
inspection jurisdiction of WorkSafeBC.
◦ Many sections of the Regulation have associated
guidelines and policies.
◦ Applies to all organizations and recent changes
have placed more responsibility on employees for
the creation and maintenance of a healthy and
safe work environment.


 OHS policy needs to be specific and deal with
any unique workplace issues.
 Here is a sample list of issues:
◦ Smoking and scents
◦ Workplace violence
◦ Working alone
◦ Blood borne pathogens
◦ Substance abuse


 Consider this list for Pharmacy...
◦ immunization, safe sharps disposal, returned
medication disposal, compounding labs,
hazardous materials, robbery prevention, ladders,
box cutters, deliveries, lifting, repetitive motion,
anti-fatigue flooring, height of the counter, lighting,
air conditioning, air quality, ventilation, first aid,
repairs and maintenance of broken drawers,
flooring, counter tops, staff washrooms, staff room.


 Health and Safety Committee
◦ An employer must establish and maintain a joint
health and safety committee.
◦ (a) in each workplace where 20 or more workers of
the employer are regularly employed, and
◦ (b) in any other workplace for which a joint
committee is required by order.


 Work Safe BC
◦ Dedicated to promoting workplace health and
safety for the workers and employers of BC.
◦ Consult with and educate employers and workers
and monitor compliance with the Occupational
Health and Safety Regulation.
◦ Assessments are a % of payroll and are based on
classification.


The Office of the Information and
Privacy Commissioner (OIPC) is
independent from government and
monitors and enforces British
Columbia's Freedom of Information
and Protection of Privacy Act
(FIPPA) and Personal Information
Protection Act (PIPA).


 The federal government brought the Personal
Information Protection and Electronic
Documents Act (PIPEDA) into force in January /04.
 BC chose to introduce its own legislation, namely
the Personal Information Protection Act (PIPA),
 Which regulates the collection, use and
disclosure of personal information by private
organizations.


 Legal requirements
◦ To be in compliance with the Act, every
organization in B.C. must have appointed a person
to oversee their personal information policy.
◦ Provincial employment standards mandate the
collection and retention of some specific
employee information, particularly with respect to
payroll.


 Employee files and confidentiality
◦ ESA requires employers to keep certain
employment records
 Security of personnel files
◦ Set up secure location to store employee records
 Employee access
 Company website
◦ Privacy policy


 Defined Employment Law and Labour Law
 HRM is 10% Law/90% process; fairness & consistency
 Communication is key leadership characteristic
 Manage things; lead people
 Four key areas of law as it applies to BC
 Human rights, Employments Standards Act, Labour
Code and Workers Compensation Act
 How Personal Info Protection Act applies to employees


 Follow Twitter: @passion4retail
 Connect LinkedIn: Gerry Spitzner
 Web: retailSOS.ca
 Blog: gerryspitzner.com
 Email: gerry@retailsos.ca
 Online Biz Card: gerryspitzner.tel
 Online Biz Card: retailSOS.tel


 retailSOS.ca is a Vancouver-based retail consultancy guiding
Pharmacy owners to create, engage and retain great customers
which results in increased sales and profit.
 Gerry Spitzner works as a management consultant supporting
community Pharmacy owners to achieve results by aligning
their vision and implementing marketing strategy with
operational execution.
 Drawing on 35+ years experience in drug store multi-site retail
operations, Pharmacy ownership and Pharmaceutical
wholesale supply-chain; Gerry brings the leadership, knowledge
and market awareness of ownership and business development
to Pharmacy owners to achieve growth objectives.


Canadian Businesses Face Employment Law Disputes

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