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Chapter 2

HR Chapter 2.doc

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Wilfrid Laurier University
Steve Risavy

Chapter 2: The Changing Legal Emphasis – from compliance to valuing diversity Canada’s Employment Law Framework • A company with employees in different provinces/territories must monitor the legislation in each of those jurisdictions and remain current as legislation changes • constitutional law o Charter of Rights and Freedoms • legislated Acts of Parliament o Income Tax Act….. • regulations (for legislated Acts) o rules to aid interpretation of laws o also to enforce the law o these bodies will include human rights commission and ministries of labour, developing legally binding rules called regulations and evaluate complaints • common law o judicial precedents that do not derive from specific pieces of legislation • contract law o collective agreements/employment contracts Multiple Legal Jurisdictions for Employment/Labour Law • provincial/territorial laws govern 90% of workers • federal laws govern 10% of workers in federal civil service, Crown corporations and agencies, transportation, banking, communications… • there are different standards and norms in different provinces – therefore when working or setting up business in different areas you have to know these norms Employment/Labour Standards Legislation • all employers and employees, including unionized employees, are covered by employment (labour) standards legislation • provides minimum entitlements for employees o minimum wage o holidays and vacation o maternity/parental leave • these laws establish minimum employee entitlements pertaining to such issues as wages, paid holidays, vacations, leave for some mix of maternity, parenting, adoption, bereavement leave, compassionate care leave, termination notice and overtime pay • provides maximum obligations e.g. hours of work o set a limit on the maximum number of hours of work per day/week • requires equal pay for equal work (male and female workers) o specifies that an employer cannot pay male and female employees differently if they are performing the same or substantially similar work Human Rights Legislation • based on Charter of Rights and Freedoms (1982), which provides fundamental freedoms: o conscience and religion o thought, belief, opinion and expression o peaceful assembly o association • Section 15 provides equality rights • The charter takes precedence over all other laws, which means that all legislation must meet the Charters standards • Two exceptions (1) the Charter allows laws to infringe on Charter rights if they can be demonstrably justified as reasonable limits in a “free and democratic society” and (2) when a legislative body invokes the “notwithstanding” provision it allows the legislation to be exempted from challenge under the Charter • It prohibits intentional and unintentional discrimination in its policies pertaining to all aspects, terms, and conditions of employment • Also outlines the ways in which employees should be treated on the job and the working climate Discrimination • distinction, exclusion or preference based on a prohibited ground nullifies or impairs an employee’s rights to: o full and equal recognition o exercise of human rights and freedoms • Discrimination and harassment are linked together by power – they are also motivated by fear Prohibited Grounds of Discrimination -Race/colour/age/sex/marital-family status/religion-creed/physical and mental handicap/ethnic/national origin -grounds vary across jurisdiction Types of Discrimination Prohibited • Intentional o Direct  Can be by deliberately refusing to hire, train, or promote an individual on any of the prohibited grounds  Its not overt – can be difficult to prove o Indirect  Through another party – employer may ask someone else to discriminate on his/her behalf o Different/unequal treatment  No individuals or groups may be created differently in any aspects or terms and conditions of employment based on any of the prohibited grounds o Based on association  Denial of rights because of friendship or other relationships with a protected group member • Unintentional (constructive/systematic) o Apparently neutral policies have adverse impact on protected groups o Ex. Only 4% of firefighters are women o It’s the most difficult to detect and combat Reasonable Accommodation of Differences • adjustment of employment policies/practices so that no individual is: o denied benefits o disadvantaged in employment o prevented from carrying out a job • based on prohibited grounds • e.g. work station redesign for wheelchair Undue Hardship • employers must accommodate to the point of ‘undue hardship’ • = point where cost or health and safety risks make accommodation impossible • failure to make every reasonable effort to accommodate employees is a violation of human rights legislation in all Canadian jurisdictions Bona Fide Occupational Requirement (BFOR) • a justifiable reason for discrimination • defined as a justifiable reason for discrimination based on business necessity for safe and efficient operations • intrinsically required by job tasks eg. must have to do the task • e.g. sight to drive a truck • reasonable and fair to not be hired because of these traits – they are LOGICAL • BFORs gets more complicated in situations in which the occupational requirement is less obvious; the onus of proof is then placed on the employer Harassment (not necessarily sexual) Definition: includes unwelcome behaviour that demeans, humiliates, or embarrasses a person, and that a reasonable person should have known would be unwelcome • physical assault • unnecessary physical contact • verbal abuse/threats • unwelcome invitation/requests • unwelcome remarks, jokes, innuendo • leering • displaying pornographic/racist pictures • practical jokes causing embarrassment • condescension/paternalism undermining • self-respect • one type of intentional harassment that is receiving increasing attention is bullying • Quebec law prohibiting “workplace psychological harassment” came into effect with the intent of ending bullying in the workplace • Employer responsibility  protecting employees from harassment is part of an employer’s responsibility to provide a safe and healthy work environment. If harassment is occurring and the employers are aware or ought to be aware of it, they can be charged as well as the alleged harasser Sexual Harassment – has attracted the most attention in the workplace (2 types) • Its offensive or humiliating behaviour that is related to a person’s sex, as well as behaviour of a sexual nature that creates an intimidating, unwelcome, hostile, or offensive working environment or that could reasonable be thought to put sexual conditions on a persons job or employment opportunities • sexual annoyance o harassment of a sexual related conduct that is hostile, intimidating or offensive to the employee with no direct link to job benefits  Comments about ones body or looks • sexual coercion o harassment of a sexual nature with direct consequences to job benefits  “lets go on a date and we can talk about your promotion”  Using power to control an employee because you control their job Harassment Policies • to reduce liability, employers should establish sound harassment policies, communicate such policies to all employees, enforce the policies in a fair and consistent manner, and take an active role in maintaining a working environment that is free of harassment 1. Have a clear workplace harassment policy 2. Provide company-wide harassment training 3
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