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MHR 523 (321)
Chapter 2

Chapter 2 – The Changing Legal Emphasis.docx
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Department
Human Resources
Course
MHR 523
Professor
Pat Sniderman
Semester
Winter

Description
Chapter 2 – The Changing Legal Emphasis The Legal Framework for Employment Law in Canada - In Canada, primary responsibility for employment-related laws resides with the provinces and territories - Provincial/territorial employment laws govern approx. 90% of Canadian workers, 10% employed in the federal civil service - Crown corporations (ex. CBC, Canada Post), agencies, businesses engaged in transportation, banking, communications is governed by federal employment legislation - 14 jurisdictions (10 provinces, 3 territories, and Canada as a whole – for employment law) - Federal and provincial/territorial legislation is common and some differences - Common  vacations, statutory holidays, minimum wage standards provided by all jurisdictions, court decisions regarding allegations of wrongful dismissal of an employee by an employer - Different  entitlements - The legal framework for employment also includes constitutional law  charter of rights and freedoms, acts of parliament, common law (the accumulation of judicial precedents that do not derive from specific pieces of legislation), contract law (governs collective agreements and individual employment contracts) - Government in each jurisdiction creates special regulatory bodies to enforce compliance with the law and aid in its interpretation -  Regulations: legally binding rules established by the special regulatory bodies created to enforce compliance with the law and aid in its interpretation - HRM laws  occupational health and safety acts, union relations, pensions, and compensation - Many organizations have moved beyond legal compliance with human rights and employment equity requirements and have begun to initiate and promote workplace diversity Employment/Labour Standards Legislation - Laws present in every Canadian jurisdiction that establish minimum employee entitlements and set a limit on the maximum number of hours of work permitted per day or week -  Wages, paid holidays, vacations, maternity, parenting, adoption, bereavement leave, compassionate care leave, termination notice, overtime pay - Every jurisdiction in Canada has legislation incorporating the principle of equal pay for equal work, in the employment standards legislation otherwise, human rights legislation - ^ Specifies that an employer cannot pay male and female employees differently if they are doing the same thing Legislation Protecting Human Rights - Makes it illegal to discriminate, even unintentionally, against various groups - The focus of such legislation is on the types of acts in which employers should not engage 1. The charter of rights and freedoms, federal legislation that is the cornerstone of human rights, and 2. Human rights legislation, which is present in every jurisdiction - The Charter of Rights and Freedoms o First governed by the British North America Act before 1982 o Federal law enacted in 1982 that guarantees fundamental freedoms to all Canadians o Applies to all levels of gov’t (federal, provincial, territorial, municipal) o All legislation must meet charter standards o Allows laws to infringe on charter rights if they can be demonstrably justified as reasonable limits in a “free and democratic society” o Second exception occurs when a legislative body invokes the “notwithstanding” provisions, which allows the legislation to be exempted from challenge under the charter o Multicultural heritage rights, first people’s rights, minority language education rights, equality rights, live and work, right to due process in criminal proceedings, right to democracy o Equity rights: section 15 of the charter of rights and freedoms, which guarantees the right to equal protection and equal benefit of the law without discrimination  race, national, ethnic origin, colour, religion, sex, age or mental or physical disability 1. Freedom of conscience and religion 2. Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication 3. Freedom of peaceful assembly 4. Freedom of association - Human Rights Legislation o Prohibits intentional and unintentional discrimination in its policies pertaining to all aspects, terms, and conditions of employment o Broad in scope o An important feature is that is supersedes the terms of any employment contract or collective agreement o  Supervisors and managers must be thoroughly familiar with the human rights legislation and their legal obligations and responsibilities specified therein - Discrimination Defined o A distinction, exclusion, or preference, based on one of the prohibited grounds, that has the effect of nullifying or impairing the right of a person to full and equal recognition and exercise of his or her human rights and freedoms o Intentional discrimination  Prohibited  Employer cannot discriminate directly by deliberately refusing to hire, train, or promote an individual on any prohibited grounds  Ouvert (blatant) discrimination is rare today  Employer is prohibited from intentional discrimination in the form of differential or unequal treatment  Cannot engage in intentional discrimination indirectly, through another party  Cannot discriminate because of association o Unintentional/constructive/systemic discrimination  Discrimination that is embedded in policies and practices that appear neutral on the surface and are implemented impartially but have an adverse impact on specific groups of people for reasons that are not job related or required for the safe and efficient operation of the business - Requirement for Reasonable Accommodation o The adjustment of employment policies and practices that an employer may be expected to make so that no individual is denied benefits, disadvantaged in employment, or prevented form carrying out the essential components of a job b/c of grounds prohibited in human rights legislation o May involve scheduling adjustments to accommodate religious beliefs or workstation redesign to enable an individual with a physical disability to perform a particular task o Undue hardship: the point to which employers are expected to accommodate under human rights legislative requirements  Failure to make every reasonable effort to accommodate employees is a violation of human rights legislation in all Canadian jurisdictions o Accommodation of employees with “invisible” disabilities such as chronic fatigue syndrome, fibromyalgia, and mental illnesses is becoming more common - Permissible Discrimination o Bona fide occupational requirement (BFOR) a justifiable reason for discrimination based on business necessity (that is, required for the safe and efficient operation of the organization) or a requirement that can be clearly defended as intrinsically required by the tasks an employee is expected to perform o Ex) blind people cannot drive, auditions for theatre have to follow sex, age, etc - Human Rights Case Examples pg 34 - Harassment includes unwelcome behavior that demeans, humiliates, or embarrasses a person and that a reasonable person should have known would be unwelcome. - Employer Responsibility: protecting employees from harassment is part of an employer’s responsibility to provide a safe and healthy working environment - Sexual harassment: offensive or humiliating behavior that is related to a person’s sex, as well as behavior of a sexual nature that creates an intimidating, unwelcome, hostile, or offensive work environment or that could reasonably be thought to put sexual conditions on a person’s job employment opportunities - Sexual coercion: harassment of a sexual nature that results in some direct consequence to the worker’s employment status or some gain in or loss of tangible job benefits - Sexual annoyance: sexually related conduct that
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