Given these issues, most employers will limit their pre-employment checks to basic reference checks until a conditional offer of employment has been made. Each Canadian jurisdiction has employment standards enforcement laws that set minimum standards with respect to issues such as minimum wage, hours of work or work, overtime pay, vacation pay, vacation and other leave (pregnancy, parenthood, sick leave, etc.). Parties to an employment contract (or collective agreement) may remain outside these public policy norms only if they provide for more favourable conditions for employees. Employees are also entitled to reasonable dismissal under customary law (or the Civil Code of Quebec), which includes the minimum rights set out above. This right depends, among other things, on the position, age and seniority of the employee, and a notice period of up to 24 months may be granted. Although parties to an employment contract have the right to enter into a contract outside the general/civil notice period, they may only do so as long as the contract provides at least the minimum legal requirements and is otherwise reasonable, valid and enforceable. Osler`s Employment and Work team can help. For more information, see osler.com/employment In the Sagaz case, the Supreme Court of Canada set out some of the conditions for determining whether an employee is an employee or an independent contractor. In the decision, the Supreme Court of Canada emphasized that the overall relationship of the parties must be sought: As a general rule, an employment complaint must be initiated by the formal filing of an employee`s complaint with a board of directors or court, or by filing a lawsuit in court. The procedure following this first step depends on the forum and jurisdiction in which the complaint was lodged, but often involves voluntary mediation or conciliation, followed by the exchange of pleadings and evidence, as the case may be, and finally a hearing of the appeal before the court, chamber or tribunal dealing with.dem of the complaint. As mentioned earlier, there is no “all-you-can-eat” employment in Canada. Employers` legal obligations to dismiss depend in part on whether the employee is dismissed with or without cause. Once sufficient information has been gathered about the relationship, the inspector/health and safety officer must organize, assess and weigh these facts to determine whether there is an employment relationship or an independent contractor relationship.
The continuum between employees and independent contractors has been presented in Appendix A to graphically represent the points that distinguish an employee and an independent contractor. The above points are not exhaustive. Permanent employment vs permanent employment: Permanent employment is permanent with no end date, and permanent employment is a position with a fixed end date. Labour relations in Canada are generally governed by employment contracts governed by labour and labour law and customary law or, in Quebec, by the Civil Code. Under Canada`s constitutional law, labour and employment fall primarily under provincial jurisdiction, and each province has its own employment standards and laws. However, the federal government is responsible for a number of industries such as banking, telecommunications, freight transportation and railways, as well as Indigenous territories. Although the employment contract is usually signed at the beginning of the relationship, it is not necessarily frozen in time. Instead, it often develops after the first setting. New and modified contractual terms may arise if an employee has worked for an employer for an extended period of time and there have been changes such as promotions, organizational restructurings, compensation increases and other factors that have been expressly or mutually agreed upon through the conduct of the parties. In the event of dismissal of an employee without reason, the employer is required to give reasonable notice or pay in his place before dismissing an employee without giving reasons.
Minimum notice periods are set by labour legislation and generally entitle employees to a notice period of approximately one to two weeks per year of service, depending on the seniority of the employee and the employer`s payroll. However, it is extremely important to note that, unless otherwise stated in their employment contract, employees are entitled to adequate dismissal under customary law. The reasonable period of notice to which an employee is entitled under the common law usually exceeds the statutory rights, sometimes drastically. What constitutes a “reasonable period of notice” at common law depends not only on an employee`s seniority in the business, but also on their age, the nature of their employment, and the likelihood that they will have difficulty finding comparable employment in a timely manner. In order to avoid unforeseen and prolonged dismissal obligations or liability for unintentional unlawful dismissal, employers should seek legal advice to ensure that their employment contracts effectively limit the notice period to which employees are entitled. A probationary period is not implicit in an employment contract. If an employer wishes to hire an employee on probation to determine their suitability for the position, this should be clearly stated in a written employment contract. As with other commercial contracts, the validity of an employment contract is not determined solely by the written or oral consensus of both parties. For the contract to be valid and enforceable, it must meet certain basic conditions. At the most basic level: Finally, some legal exceptions can also be made to defend against complaints of discrimination. For example, educational or social institutions or organizations that primarily serve the interests of persons identified by a particular characteristic may, in the context of employment, give preference to candidates who also identify with that particular characteristic, without this being considered discriminatory.
Similarly, in some jurisdictions, questions related to a prohibited ground of discrimination may lawfully be asked of workers as part of a programme to prevent social inequality or disadvantage. A non-unionized worker may file a complaint under the Labour Standards Act or take legal action if he or she believes that his or her rights and rights related to his or her dismissal have not been respected. All employees must be dismissed or paid in their place in accordance with applicable employment standards legislation. Unless the parties have expressly agreed otherwise, there is a legal presumption that an employee is also entitled, under customary law, to a reasonable period of notice corresponding to the period that an employee would likely need to obtain similar employment. The range of notice periods that can usually be granted by a court can range from two or three months to twenty-four months. In exceptional cases, a notice period of more than twenty-four months may be granted. 3.7 Have “atypical” employees (p.B. Part-time workers, fixed-term contracts or temporary agency workers) additional protection? To consider who is an employee or an independent contractor, it may be useful to imagine a continuum. At one end of the continuum, a worker who is clearly an employee would fall. For example, a person who is hired as a mechanic, who is paid by the hour and who is closely supervised by a foreman would be classified as an employee. At the other end of that continuum is a worker who will obviously be an independent contractor.
It would be a worker who has his own business and works for a variety of companies. This worker is hired for a specific task of updating a company`s computer software and receives a certain amount for the work, signs a contract for a certain period of time and is not monitored, but reports on his progress to the department head. However, most provincial labour standards also require that an employee`s previous work with the vendor be recognized in order to determine the employee`s minimum statutory dismissal rights in the event of dismissal (an employee`s right to dismissal under applicable provincial labour standards is likely to be significantly less than the employee`s right to establish dismissal under the common law). If the sale is a unionized business, the buyer is considered a successor employer and is bound by the seller`s collective agreements. The collective agreements in force at the time of sale therefore continue to regulate all terms and conditions of employment and to bind the buyer to the corresponding association. Nevertheless, many employers require potential employees to enter into formal written employment contracts. Such contracts provide a degree of certainty about the terms of the employer-employee relationship and are useful when disputes arise about employment. These implicit terms of the employment contract may be modified by clear, unambiguous and legally sound written wording, provided that such amendments do not violate the minimum standards prescribed by law. A common area for such changes is termination provisions that are intended to restrict an employee`s right to dismissal under the common law. For such changes to come into effect, they must be very clear and must not violate applicable employment standards legislation. Harassment for a protected reason, including sexual harassment, is not only prohibited by labour standards in a number of jurisdictions, but is also prohibited by human rights laws across Canada. .
