- 2015 Federal Election
Smithson: Things your employer owes you
I previously wrote on the topic of things your employment doesn’t include and the feedback I received indicated that employers were relieved to see the boundaries of their legal obligations established.
However, as Blood, Sweat and Tears sang in one of their hits songs, “What goes up, must come down.” So, this week I’d like to identify some things employers do owe their employees.
First and foremost, all employers owe their employees compliance with statutory requirements. In B.C., the primary employment-related legislation includes the Employment Standards Act, the Human Rights Code, the Labour Relations Code and the Workers Compensation Act.
These statutes establish minimum standards which are, to a large extent, non-negotiable. The “golden rule” of employment legislation is that employees cannot contract out of their statutory rights so, with some exceptions (relating mostly to unionized work environments), the employer is not permitted to impose a lesser standard on its employees.
The B.C. Employment Standards Act sets out minimum standards for wages, vacation pay, hours of work and overtime, statutory holiday pay, notice of termination, unpaid leaves of absence and many other aspects of the day-to-day relationship between employer and employee.
The Human Rights Code establishes the obligation of non-discriminatory treatment of individuals in the employment setting.
The B.C. Labour Relations Code enshrines the right to organize for collective bargaining purposes and creates a structure for managing and resolving labour disputes and work stoppages.
The Workers Compensation Act seeks to ensure that every employee is provided with a safe workplace in which to be employed.
Employers also owe their employees compliance with so-called “implied” terms of employment established by judges in what is referred to as the “common law” of employment.
There are various terms which have been imposed on the employment relationship by our courts, the most important of which is the employer’s obligation to provide employees with reasonable working notice of termination (in a not-for-cause situation).
Employers can, using enforceable and properly-implemented employment agreements, contract out of these implied obligations but the reality is that the great majority of employers have not taken the required steps to do so. That being the case, they must do things like provide reasonable working notice or pay in lieu thereof.
Employers also must share in the cost of contributions to employment insurance and the Canada Pension Plan. These remittances are calculated according to published formulae and are in addition to employees’ contributions.
In the human rights setting, employers must accommodate the needs of employees in a wide range of scenarios, the most common of which is the existence of a disability. This obligation ends, however, when the impact on the employer reaches the point of undue hardship or when the employee refuses to facilitate the employer’s accommodation efforts.
When the employer has taken the wise step of utilizing an appropriately-worded employment agreement, it must comply with the obligations contained in that document.
Whether relating to the provision of benefits coverage, various compensation-related items, or terms of severance, an employer which fails to comply with its contractual obligations likely faces a date in court.
If the employer wishes to have the benefit of certain advantageous terms (relating, for instance, to an initial probation period or to the right to impose unpaid layoffs), it must state those terms in a contractually binding manner.
Many employers have paid the price for attempting to terminate an employee during a period of probation when, in fact, no such period has been properly established.
This list really just scratches the surface of the employer’s obligations towards its employees. Complying with these requirements will go a long way towards keeping the employer out of court and employment lawyers off its payroll.
Robert Smithson is a labour and employment lawyer and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.