Are you concerned about employment law and how it will affect your business? Or maybe you are an employee and you are looking to book a consultation with an employment lawyer.
There are a few things to talk about in terms of the obligations of the employer. There are accommodation issues under the human rights code.
Wrongful Dismissal Employment Law Help
The worker’s compensation act doesn’t always say what a company act should do in every situation. IT does however layout what a company should do in general.
It says that a company must be able to provide a safe environment for their staff. During COVID-19, the BC government announced a state of emergency.
Suddenly, companies had to comply with orders made by the health authority of the province.
If you need an employment lawyer in British Columbia or Ontario, contact us below. We will connect you to an employment law lawyer for a free consultation. Also, you can book a time and the lawyer will call you directly.
Employment Standards Act
Employers were required to create and publish COVID safety plans. There was an interesting element in BC. They also set out a limitation of a liability order.
This limited a companies liability should a person claim that they were exposed to COVID-19 at a companies worksite.
However, that limitation of liability applied as long as the company adhered to the safety plan outlines. During COVID- 19, BC did not order many businesses to close.
In Ontario, the government forced most businesses to close.
It is easy to say that company is going to provide a safe workplace. However, how do they balance that with other obligations that the company has? An example of this would be privacy rules that the company must follow.
Employees And Employers and Employment Law
There are some companies that started taking temperature checks. This was to protect staff and clients during the Coronavirus breakout. Many people agreed that these were good steps to take.
However, some people thought that this might violate privacy rights. Many employment lawyers are saying that if a client or staff consent, then there is no privacy issue.
Therefore, many employers are working towards getting consent to get that sort of information. The reason that the company is asking for this information is that they can continue to flatten the curve. This allows them to create a safe and healthy workplace for all to attend.
Human Resources and Employment Law
The human rights code doesn’t allow companies to discriminate against people because of their status. They also cannot discriminate based on disability.
An inability to provide child care can fall under family status. If someone cannot go to work because they cannot afford child care, that would trigger family status accommodation.
This can lead to claims against the company. There needs to be a balance between the business and the employee. This comes down to a test of undue hardship.
If an employee is put in a situation where they could be exposed to a virus, and they live with someone who is vulnerable, there can be complications there. This should trigger a discussion with the company and the employee.
Employment Law and Employment Contracts
There was a result amendment to the employment standards act that set out conditions that allow the employee to go on an unpaid leave of absence. One is an inability to provide child care.
And the other is possible exposure to a virus or bacteria.
After COVID-19, there were many people were laid off. When people started to come back, the question was “are the employees coming back on the same terms of conditions?”
If they used to work 40 hours per week, and they now come back to 30 hours a week. Was the employment contract violates? Is this now a new employment contract?
Was there constructive dismissal? The terms of employment have been changed in a big way. If this happened, the employee can claim that they were terminated.
They likely will be asking for a severance package or notice. They also might want to pay in lieu of notice.
Employment Law And Employment Equity
The employment standards act says if an employee was laid off for 16 years, the employee’s employment was terminated. That raised the question during COVID if the employees were fired instead of laid off.
Sick pay is often outlined in the employment contract. Many employment agreements will explain sick leave eligibility. If an employee meets those criteria, they should get it. If you want to learn more about law, see our videos.
Can I pay my employees less if I make fewer profits?
Usually not. You are required to pay your employees in accordance with the terms of the employment agreement unless the employee is on a permitted temporary layoff or leave of absence under the Employment Standards Act.
Of course, you are always free to enter into a new agreement with different terms of compensation if your employee is willing to do so (but adequate legal consideration should be given for that arrangement to ensure that this is a legal contract).
If you propose to pay your employees less than they ordinarily earn, this may constitute a constructive dismissal (which results in the same type of damages as if the employee had been terminated on a without cause basis).
I want to get fired, how do I go about it?
If you are in fact “fired” this typically refers to a termination for the cause which will result in no notice, or pay in lieu of notice, owing to the employee. If you are looking to be “packaged out” you may want to gently approach your employer, or have a lawyer approach your employer.
That can be risky, however, because it may signal that you are in trouble should the employer want to keep you on after you make your request (and the employer may look for ways to get rid of you that do not benefit you).
Also, keep in mind that terminations without cause may be very costly to the employer which may cause reluctance on the part of the employer to offer you a package. Further, you may have a termination clause in your employment contract which results in little notice to you if you are packaged out.
What are typically grounds for termination of employment?
Frequent grounds for a termination for cause include persistent absenteeism or chronic lateness, incompetence (this is a hard one to establish), theft, breach of company policy, and harassment and bullying (and other breaches of the Occupational Health and Safety Act).
One very serious act may justify a for-cause termination or, in other instances, it may take multiple breaches to rise to the threshold of a proper termination for cause. It is a very fact-specific analysis to decide whether this appears to be a proper termination for cause.
Further, an employer can terminate on a without cause basis for almost any reason except those prohibited by law such as that which would constitute a breach of the Human Rights Code.
Can I terminate an employee due to a lack of work?
Yes, you can. In fact, an employer is not even required to give a reason for the termination unless it is a termination for cause.
Although employers often wish to do so in an effort to be forthright or to try to change any perception that the employment was terminated on a prohibited ground such as a breach of the Human Rights Code.
If an employee is terminated because of a lack of work, that employee is typically entitled to notice or pay in lieu of notice, and other statutory requirements under the Employment Standards Act.
An alternative to termination would be a temporary layoff if this is permitted at law.
This would mean that the employer is not required to pay the employee for the period of time that s/he does not work but must bring them back within the time period set out by the Employment Standards Act.
What is a checklist to avoid wrongful termination?
If you are the employer, here are the things you need to know. Do not terminate the employee on any prohibited grounds.
In other words, you should not terminate an employee who has protections under the Human Rights Code or the Employment Standards Act.
Provide the proper amount of notice, or pay in lieu of notice, as required by the Employment Standards Act and the common law (if applicable).
In addition to notice, provide the other entitlements required at law such as severance pay, if applicable.
Can you re-employ an employee after paying them termination?
Yes, you can. An employer may choose to offer a new employment contract to the employee but if the notice or pay in lieu of notice has been given, the new contract likely won’t reflect the prior years of service.
Author: Alistair Vigier is the CEO of ClearWay Law