«Prepared by: The Labour & Employment Group SFU Engineering Science January 29, 2004 3000 Royal Centre • P.O. Box 11130 1055 West Georgia Street ...»
The employee is entitled to up to 17 consecutive weeks leave of absence without pay which may commence at any time up to 11 weeks prior to the delivery. Additionally, if, for reasons related to the birth of the child the employee is unable to return to work, further leaves of absence may be taken for up to an additional 6 consecutive weeks.
(ii) if required by the employer, she furnishes the employer with a certificate from a medical practitioner stating that she is able to resume work.
In cases where a pregnancy has terminated prior to actual birth or where birth was premature resulting in the employee being unable to make the normal written request for leave of absence, then upon the employee’s request, the employee may be granted a leave of absence without pay for up to 6 consecutive weeks.
A request for maternity leave must be made in writing at least 4 weeks before the employee proposes to begin his or her leave. An employer may require requests for maternity leave be accompanied by a medical practitioner’s certificate stating the expected or actual birth date or the date the pregnancy terminated.
The Employment Standards Act prohibits the employer from terminating an employee for reasons relating to the pregnancy. Additionally, an employer is prohibited from changing the conditions of employment for reasons related to the pregnancy unless it first obtained the employee’s written consent.
(h) Parental Leave In addition to the 17 weeks of maternity leave, a birth mother may take up to an additional 35 unpaid weeks as parental leave. A maternity leave and a parental leave must be taken consecutively for a maximum total leave of absence of 52 weeks. If no maternity leave is taken, a birth mother may take an unpaid parental leave of 37 weeks, to be completed within 52 weeks after the birth of the child.
Birth fathers and adoptive parents are entitled to a parental leave of absence, without pay, for a period of up to 37 weeks, to be completed within 52 weeks after the birth of the child or after the child is placed with the adoptive parent.
A birth father, birth mother, or an adoptive parent may take up to 5 additional weeks of unpaid leave, beginning immediately after a parental leave, if the child has a physical, psychological or emotional condition requiring an additional period of parental care.
A request for parental leave, with the exception of a request for parental leave made by a birth father or an adopting parent, must be made in writing at least 4 weeks before the employee proposes to begin his or her leave. An employer may require requests for parental leave be accompanied by a medical practitioner’s certificate or other evidence of the employee’s entitlement to leave.
(i) Effect of Maternity and Parental Leaves An employer is not required to pay an employee during maternity or parental leave. Employees can claim benefits for these leaves under the Employment Insurance Act.
The service of an employee who is absent from work due to pregnancy is considered continuous for the purposes of vacation entitlement, vacation pay, severance pay and notice of termination, and any pension, medical or other plan beneficial to the employee. The employer shall continue to make payments to such plans in the same manner as if the employee were not absent if the total cost of the plan is normally paid by the employer. The employee may elect to continue to pay his or her share of any plan that is paid jointly by the employer and the employee, in which case employer contributions must continue as well.
The employee is entitled to all increases in wages and benefits the employee would have been entitled to had the leave not been taken.
(j) Notice Periods and Termination
The following notice periods are required under the Act:
The notice periods required by the Act are lower than the notice periods required by common law. Accordingly, an employee may seek both common law notice and notice under the Act.
(k) Effect of Written Employment Contracts Written contracts may appear to offer a way to avoid some of the provisions of the Act.
However, Section 4 of the Act provides that any provision of an employment agreement which violates the Act is of no effect. Upon that basis, the Employment Standards Tribunal and the Court will only give effect to a contract which meets or exceeds the provisions of the Act.
Under Section 4, an employee cannot agree to waive the protections guaranteed by the Act.
Even if the employee agrees in writing to waive the protections under the Act, he can change his mind. Upon the basis of Section 4, the Employment Standards Tribunal has struck down
the following types of agreements:
An employer and an employee may enter into a contract which provides better terms than an employee would get under the Act alone. In such an instance, the employer would be bound by the contract.
(l) How are Complaints Made Under the Act?
Beginning in 2002, in an effort to encourage employees to try to solve problems in cooperation with their employer, the Branch implemented a new complaint resolution process.
The Branch now requires that, except under very unusual circumstances, a new Employment Standards Self-Help Kit be completed and given by the employee to his or her employer before a complaint can be made. The Kit attempts to help define the problem and provides materials to assist in resolving the problem prior to the formal complaint process. For example, in order to assist with wage problems, the Kit includes a letter to the employer, written by the Branch, along with a detailed Request for Payment form. If the use of the Self-Help Kit does not resolve the problem, the employee must make a written complaint to the Branch.
Complaints may be made at any time while an employee is still employed but must be made within six months of the last day on which the employee worked. Complaints can go back for a period of six months. For example, if an employee claims she is entitled to overtime, she can make a claim for overtime pay up to six months after she stops working and that claim would cover the previous six months of her employment.
After a complaint is made, the Director must accept and review the complaint and may conduct an investigation. Prior to making a determination, and in accordance with the complaint resolution process, the Director may arrange a mediation session between the parties. If the parties agree on a solution, the Director may draft a settlement agreement. Otherwise, the Director of Employment Standards will issue a Determination. A party may appeal a
Determination to the Employment Standards Tribunal. The Tribunal may:
If the Tribunal conducts a hearing, it will not hear evidence which was not made available to the investigator. Accordingly, the parties to a complaint should co-operate fully with the Director when an investigation is being carried out.
(m) Remedies Under the Act Under the Act, the usual remedy is that an employees are paid compensation. However, if the employee is dismissed as a result of requiring leave under the Act or the employer misrepresents the nature of the position to a potential employee, that employee may be reinstated to the original position or paid compensation in lieu of reinstatement. The employer may also be required to pay the employee or other reasonable and actual expenses incurred because of the contravention.
In the Tribunal decisions thus far, reinstatement has not been awarded. In most cases,
compensation is awarded. The Tribunal has described the remedy as follows:
In our opinion, Section 79(4) is perhaps the most restorative remedial provision in the Act, giving the Director broad jurisdiction to place the terminated employee in the same position he or she would have been in but for the wrongful action of the employer. As a remedial provision, it calls for a liberal and broad interpretation: Machtinger v. Hoj Industries Ltd. (1992) 91 D.L.R. (4th) 491 (S.C.C.).
In our view, the remedies under the Act must be fair, compensatory and promote compliance. These principles are reflected in the purposes of the Act set out in Section 2 and the Act itself. With respect to compensation, the general principle of damages must be to put the individual in the same position the individual would have been in but for the breach of the statutory obligation. Section 79(4) permits a remedy not available at common law. We are not in any way limited to, for example, such damages as might have been awarded in an action for wrongful dismissal. In our view, the statutory remedy should not be narrowly constructed and we have the power to fashion a remedy that is fair, compensatory and promotes compliance with the Act. In short, the remedy depends on the extent of the injury suffered because of the breach. Some of the factors we have considered are those relied on by the Tribunal in a recent decision Afaga Beauty Service Ltd. (BCEST # D318/97): length of employment with the employer; the time needed to find alternative employment; mitigation efforts undertaken; other earnings during the period of unemployment; projected earnings from previous employment; etc. The Tribunal is not limited to considering only those factors as which factors are appropriate will depend on the specific circumstances of each appeal. We do not agree with the Director that Ms. Prickrell's entitlement to compensation extends to the date of the Determination (November 4, 1997). As noted above, there was an inordinate and unexplained delay between the date of Ms. Prickrell's complaint and the date of the Determination. We consider that compensation for "loss of employment" is included in the total amount of compensation to which Ms. Pickrell is entitled
when we adopt and apply the various factors enunciated above and in Afaga Beauty Service Ltd. (BCEST # D318/97).
In that decision, the pregnant employee was dismissed on September 20, 1995, ostensibly for cause. She gave birth to her child in October, 1995. The compensation she was awarded was in the Determination was lost wages from the date of her dismissal to the date of the Determination, some two years later.
There have been determinations where damages have been awarded for emotional pain and suffering - usually under the heading of “expenses”. However, the Tribunal has found that such damages are not provided under the Act but fall within the scope of the Act.
(n) Overlap Between the Court and the Act
The following actions are ones which can be pursued through the Court:
The above actions overlap with certain provisions of the Act: such as the right to severance pay, unpaid wages. There may also be overlap where there is a contract of employment which deals with vacation pay, overtime and statutory holiday pay.
(o) The Effect of Section 118 of the Act The Act itself contemplates that there will be an overlap of rights and avenues to pursue.
Section 118 of the Act provides:
Subject to Section 82, nothing in this Act or the regulations affects a person's right to commence and maintain an action that, but for this Act, the person would have had the right to commence and maintain.
Section 82 of the Act provides:
Once a determination is made requiring payment of wages, an employee may commence another proceeding to recover them only if (a) the director has consented in writing, or (b) the director or the tribunal has cancelled the determination.
Thus, Section 82 prohibits concurrent actions to recover wages which are the subject of a determination.
What claims may not be brought in the Courts?
• Claims in respect of which a determination is made: Section 82.
However, since the limitation period for unpaid wages extends back only
E. HUMAN RIGHTS CODEIn 1974, the Human Rights Code came into operation. This legislation has now been superseded in 1984 by the Human Rights Code.
(a) Discriminatory Publication The Human Rights Code prohibits any person (which includes an employer) from publishing or displaying before the public a notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against a person or class of persons in any manner prohibited by the Act.
(b) Discrimination in Employment Advertisements The Human Rights Code prohibits any person from publishing an advertisement in connection with employment or a prospective employment that expresses a limitation, specification or preference as to race, colour, ancestry, place of origin, political belief, religion, marital status, physical or mental disability, sex, sexual orientation or age unless a limitation, specification or preference is based on a bona fide occupational requirement.
(c) Discrimination in Wages The Human Rights Code provides that an employer shall not discriminate between his male and female employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work. The concept of skill, effort and responsibility is used to determine what is similar or substantially similar work.
The Human Rights Code provides that a difference in the rate of pay between employees of different sex based on a factor other than sex does not constitute a failure to comply with the Human Rights Code where the factor on which the difference is based would reasonably justify the difference. Examples might include a seniority system or an incentive program. The Human Rights Code also prohibits an employer from reducing the rate of pay of one employee in order to comply with this Section.