What is Employment Law? Why should Employers care about Employment Law?
Canadian laws recognize that there is a power imbalance between employees and employers. What this means is our laws include legal protections for employees and legal obligations for employers. As an employer, you might wonder, what is at stake for not following the rules?
The following fictious examples are what we typically deal with in our practice as employment lawyers (please note that any actual resemblances are purely coincidental):
Mr. Wong has purchased a resort in Vancouver Island. Awestruck by the local beauty, Mr. Wong hopes to attract more Mandarin-speaking tourists and he replaces his head of concierge (a Caucasian) with a Chinese one. Mr. Wong later receives a letter threatening a human rights complaint from his former head of concierge, demanding tens of thousands.
The Legal Problem: Mr. Wong may have discriminated against his former head of concierge by firing him because of his race or place of origin.
黄先生面对的风险： 黄先生可能会被裁定违反Human Rights Code。结果，他可能不得不支付多种赔偿，包括补偿损失的工资（wage loss)和“损害尊严”赔偿(injury to dignity damages)。除了这些以外，黄先生可能还需要聘用律师来面对人权投诉。
What is at stake for Mr. Wong: Mr. Wong may be found to have breached the Human Rights Code and an award of financial damages could be made including wage losses and injury to dignity damages. Mr. Wong may also need to spend a lot of money to either fight or settle the human rights complaint.
- 餐馆老板彭女士的一名女员工被其餐馆的另一名男员工受到欺凌和性骚扰。事后，那位女员工向WorkSafeBC举报。 当WorkSafeBC在调查过程中提出要查看餐馆职业健康和安全条例，餐馆无法提供。
A female employee of Ms. Peng, a restaurant owner, made a complaint to WorkSafeBC that she was being bullied and sexually harassed by a male colleague. During its investigation of the complaint, WorkSafeBC asks for the restaurant’s bullying and harassment policy and procedure but Ms. Peng is unable to do so as the restaurant does not have one.
涉及法律的问题： Workers Compensation Act要求彭女士制定餐馆职业健康安全条例，并对所有雇员必须进行该政策和程序培训。
The Legal Problem: The Workers Compensation Act requires every employer to have a bullying and harassment policy and procedure and to train all of their employees on that policy and procedure.
What is at stake for Ms. Peng: A finding of non-compliance and order to comply will likely be made. Companies can also be subjected to fines under the Workers Compensation Act, which can exceed $100,000 for the most extreme safety violations.
- 董女士开办了一个课余学习中心。董女士对申请职位的老师以2小时的无薪代课作为她聘用评估。目前已被聘用老师有20 位。最近，董女士收到了Employment Standards投诉。
Ms. Tong runs an after-school learning centre. She interviewed 20 prospective instructors and had them as a part of their interview, each teach a 2-hour class without pay. Recently, Ms. Tong received an Employment Standards complaint.
涉及法律的问题： Employment Standards Act 要求雇主支付代课或曾代课老师时薪，哪怕是试用但未被录用。
The Legal Problem: Under the Employment Standards Act, Ms. Tong must pay all her job applicants for their 2 hours of teaching because it is considered to be “work”.
董女士面对的风险： 赔偿代课或曾代课老师时薪，并罚款至少1万加币（500 元 为一位老师）。
What is at stake for Ms. Tong: On top of paying wages for the 2 hours of work for all 20 of her prospective instructors, Ms. Tong may be fined a minimum of $10,000.00 ($500 fine for each affected prospective instructor).
Mr. Chang hires his newest employee without a written contract. A year later, Mr. Chang fires that employee and offers him some severance. The employee rejects Mr. Chang’s offer and hires a lawyer and sues him.
The Legal Problem: Mr. Chang does not have a written employment contract.
What Mr. Chang potentially faces: A court order to pay severance pay, as well as spending lots of money to either fight or settle the lawsuit.
In summary, employers face serious liabilities. Whether it is hiring, firing, or anything in between, even the most cautious employer can run afoul of employment laws. There are proactive steps you can take to avoid these risks. To minimize liability, we recommend you get advice from an employment lawyer.
This blog is not intended to serve as legal advice, and only provides general information.
Every situation must be considered on its own facts. Need legal advice in Mandarin or Shanghaiese Dialect? Contact Jim Wu [email protected].