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«Prepared by: The Labour & Employment Group SFU Engineering Science January 29, 2004 3000 Royal Centre • P.O. Box 11130 1055 West Georgia Street ...»

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In situations where an employee is paid less than the rate of pay to which he is entitled under this Section, he is entitled to recover from his employer the difference between the amount paid and the amount to which he is entitled, together with the costs, but no action can be commenced later than 12 months from the termination of the employee’s services and the action applies only to wages of an employee during the 12 month period immediately preceding the date of the termination of his services or the date of the commencement of his action, whichever date occurs first.

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(d) Discrimination in Employment The Human Rights Code prohibits a person from refusing to employ or refusing to continue to employ a person or discriminating against a person with respect to employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because of his conviction for a criminal conviction charge that is unrelated to the employment or to the intended employment of that person. Age discrimination is prohibited only in respect of persons between the ages of 19 and 65.

This provision does not apply as it relates to age, to any bona fide scheme based on seniority, or as it relates to marital status, physical or mental disability, sex or age, to the operation of any bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan. Also the provision does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

(e) The Question of Intention The prohibitions in the Human Rights Code apply to practices whether or not there was an intention to discriminate.

(f) What is a Bona Fide Occupational Qualification?

The Human Rights Code provides for discrimination in employment decisions if it is based on a bona fide occupational qualification or requirement.

Bona fide occupational qualifications or requirements, depending on the legislation in use, have been dealt with extensively in human rights cases. It is the employer’s obligation to show that a bona fide occupational requirement exists. This was addressed in Ontario Human Rights Commission et al. v. The Borough of Etobicoke (1982) 40 N.R. 159 (S.C.C.), where Mr. Justice

McIntyre stated at pp. 165-66:

To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code.

In addition, it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

The answer to the second question will depend in this, as in all cases, upon a consideration of the evidence and of the nature of the employment concerned.

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British Columbia employers are required to register with the Workers Compensation Board (“WCB”) and abide by its scheme.

The scheme set up under the Workers’ Compensation Act allows workers to be compensated for lost wages and expenses as a result of work place injuries and illnesses. The employer pays for this scheme through assessments as a percentage of payroll. The amount of assessments are based on the inherent danger of the employer’s industry and on the employer’s experience rating.

The more accident prone the employer’s work place is, the higher its assessments will be.

The benefit of the scheme to the employer is that the Act bars employees from suing their employers or other employers for additional monies as a result of a work place injury or illness.

Occupational health and safety is also governed by this Act. The WCB has many inspectors responsible for enforcing safety standards and the WCB is given extensive powers to compel employers to provide a safe work environment.

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