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Forums For Adjudicating Employment Disputes

There are a number of fora for the adjudication of employment disputes, depending on the nature of the claim, the size of the claim, and the nature of the industry in question.

Generally speaking, the law of employment is the law of contract. Contractual disputes are generally litigated and resolved within the superior courts of the province. The Court of Queen’s Bench of Alberta is the superior court in which claims are litigated in the first instance. Claims of a value of CAD $50,000 or less may be decided by the Small Claims Division of the Provincial Court.

The Labour Relations Code with unionized employment including the granting of collective bargaining rights, negotiation of collective agreements, strikes, and lockouts. All applications concerning union certification and other disputes arising in the unionized setting are decided by the Alberta Labour Relations Board.

The Labour Relations Code provides that all collective agreements must contain an arbitration mechanism. Such provisions typically contemplate the appointment of a private arbitrator to adjudicate disputes in respect of the interpretation and enforcement of the collective agreement.

The Employment Standards Code sets out minimum employment standards and entitlements for provincially regulated employment in Alberta. Employees may have claims under the Employment Standards Code adjudicated by the Director of Employment Standards, whose decision is subject to an appeal to an Umpire appointed under the legislation.

In respect of those employers involved in undertakings that are federal in nature, the Canada Labour Code is engaged. Disputes in the unionized sector are considered by the Canada Industrial Relations Board. In non-unionized, federally regulated industries, unjust dismissal complaints may be heard by an adjudicator appointed under Part III of the Canada Labour Code.

This summary will focus on provincially regulated employment in the private sector in Alberta.

The Main Sources Of Employment Law

In Alberta, for provincially regulated employers, the law of labour and employment is essentially the law of contract, subject to a legislative overlay of minimum employment standards (the Employment Standards Code), human rights (the Alberta Human Rights Act, collective bargaining rights (the Labour Relations Code), privacy (the Personal Information Protection Act ) and occupational health and safety (the Occupational Health and Safety Act and the Workers’ Compensation Act).

The Employment Standards Code sets out a number of minimum employment standards in respect of hours of work, minimum wage, vacation and holidays, and leaves of absence. It also sets out minimum requirements which must be observed in the termination of the employment relationship. It applies in both the unionized and non-unionized context.

The Labour Relations Code applies in respect of the unionized sector. This legislation deals with the acquisition and enforcement of collective bargaining rights and the oversight of unionized labour relations in the province.

The Alberta Human Rights Act prohibits discrimination in hiring and employment on the basis of certain enumerated grounds.

The Workers’ Compensation Act sets out an insurance structure that compensates workers for industrial injuries and diseases. This program is funded by assessments on employers in the province.

The Occupational Health and Safety Act and associated code and regulations also contains provisions with respect to workplace health and safety.

Privacy rights of employees and obligations of employers are set out in the Personal Information Protection Act.

National Law And Employees Working For Foreign Companies

Alberta law will apply to all employees earning wages in the province of Alberta. Where an employee receives wages outside of Alberta and is only working in Alberta temporarily, the law of the jurisdiction in which the contract was made is likely to apply.

National Law And Employees Of National Companies Working In Another Jurisdiction

Typically, Alberta law will not apply to employees of companies working mainly outside of Alberta.

Data privacy

The Personal Information Protection Act (which applies to provincially regulated, private employers) contains rules for how employers can collect, use, and disclose personal employee information. Generally speaking, this information can be collected, used, or disclosed without the consent of the employee if required for reasonable purposes related to recruiting, managing, or terminating personnel (and with notice to the affected employee). Otherwise, with some exceptions, consent must be obtained.

Legal Requirements As To The Form Of Agreement

There are no legal requirements as to the form of an individual employment agreement. Often, employment contracts are oral and are of an indefinite duration. They may be in writing but are not required to be. In respect of all employment contracts, the common law has implied certain terms, including an obligation on the part of the employer to provide reasonable notice to the employee of termination (unless the contract is being terminated for just cause). Where the parties have specifically addressed the manner by which a contract may be terminated and the notice of termination to which an employee will be entitled, the implied term of reasonable notice will not be imposed.

All contracts of employment, however, must meet the minimum standards set out in the Employment Standards Code For example, the Code includes a graduated notice entitlement of employees (from zero to eight weeks depending on the length of the employee’s service). If the notice of termination provided under any employment contract falls below the minimum standards set out in the Employment Standards Code, the notice provision in the contract will be unenforceable. In such an event, the common law obligation on the part of the employer to provide reasonable notice of termination (the implied term) will apply, to the extent that it is greater than the statutory minimums set out in the Employment Standards Code.

There is a requirement that collective agreements must be in writing.

Mandatory Requirements
  • Trial Period
  • At common law, there is no implied term to the effect that an employee is subject to a “probationary” period, but the parties may agree to one if they wish.

    The Employment Standards Code provides that an employer may terminate an employee’s employment in the first 90 days of employment without notice or pay in lieu of notice. This statutory probationary period does not relieve the employer from providing the notice which may be required by the terms of the contract of employment (express or implied).

  • Hours Of Work
  • The Employment Standards Code limits the number of consecutive hours that may be worked by an employee. Generally speaking, work is confined to a period of 12 consecutive hours in any given day. An employer must pay an employee overtime wages if the employer requires or allows an employee to work more than eight hours per day, or 44 hours per week. An employer may enter into an overtime agreement with employees that provides for time off with pay instead of overtime pay. An employer may also require or permit an employee to work pursuant to an averaging arrangement, which allows longer hours of work per day paid at the employee’s regular wage rate.

    Certain employees are excluded from the minimum standards set out in the Employment Standards Code.

  • Special Rules For Part-time Work
  • There are no special rules for part-time employees in the Employment Standards Code.

  • Earnings
  • Employees must receive at least the minimum wage set by the government. Currently, the general minimum wage in Alberta is CAD $15.00 per hour for most employees.

  • Holidays/Rest Periods
  • Employees are entitled to one 30-minute paid or unpaid break after the first five hours of work for shifts that are between five and ten hours long pursuant to the Employment Standards Code. Employees are entitled to at least one day of rest in each work week, or two consecutive days of rest in each period of two consecutive work weeks, or three consecutive days in each period of three consecutive work weeks, or four consecutive days in each period of four consecutive work weeks. An employer must allow each employee at least four consecutive days of rest after each 24 consecutive workdays.

    The Employment Standards Code provides that employees have a vacation entitlement of two weeks after each of the first four years of employment and three weeks after five years of employment. There are a number of general holidays that are set out in the Employment Standards Code, for which the employee is entitled to take off work, or alternatively, be compensated additionally for if required to work.

  • Minimum/Maximum Age
  • The employment of a child under the age of 15 is only permitted under the Employment Standards Code if the child’s parent or guardian provides consent. There are a number of restrictions upon youth employment, for example, with respect to hours of work. There is no compulsory retirement age.

  • Illness/Disability
  • The Alberta Human Rights Act requires that an employer must not discriminate against an employee on the basis of disability. That is, an employee with a disability must be accommodated up to the point of “undue hardship”.

    The Employment Standards Code provides that employees are entitled to certain job-protected, unpaid leaves of absence. Some of these leaves may apply in the event that an employee is ill or disabled – for example, Personal and Family Responsibility Leave, or Long-Term Illness and Injury Leave.

    Employers may have policies that provide that employees who are away from work on account of illness may be paid on such days. From time to time, insurance coverage is obtained by an employer, or an employee, to ensure that an employee is paid during a period of illness which qualifies for coverage under such insurance policy. In the absence of an insurance policy or sick leave policy, an employee who is absent from work due to illness is not entitled to pay.

  • Location Of Work/Mobility
  • The ability of an employer to direct where an employee is to fulfil contractual duties depends upon the contract of employment or collective agreement. To the extent that the employment contract does not contemplate the ability of the employer to require the employee to move locations, an employee may contend that a unilateral directive on the part of the employer to change the place of work constitutes a breach of the employment contract giving rise to a claim. Where the directive is a reasonable one contemplated by the contract of employment (expressly or impliedly) the employee will be bound to comply.

  • Pension Plans
  • Pension plans are not mandatory in Alberta. However, if an employer chooses to put such a plan in place, it will be governed by the Employment Pension Plans Act. As in other provincial jurisdictions, there are two mandatory federal plans which apply to all employees: the Canada Pension Plan and Old Age Security.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)
  • Under the Employment Standards Code , an employee who has been employed for at least 90 days is entitled to maternity leave of up to 16 weeks without pay starting anytime during the 13 weeks immediately before the estimated delivery date. Parents (including adoptive parents) who are employed for at least 90 days are entitled to up to 62 weeks of parental leave. This provides a combined total of 78 weeks of maternity and parental leave for birth mothers who take both maternity and parental leave. The Employment Standards Code provides protection for those employees who may be on maternity or parental leave. The employer must reinstate the employee in the same or comparable position with no less pay than the employee was receiving immediately prior to the leave.

    During the employee’s permitted leave period, employment is deemed to be continuous.

  • Compulsory Terms
  • Collective agreements must be for a minimum of one year and must contain a dispute resolution process failing which the parties will be subject to statutorily imposed terms and conditions.

    While there are no compulsory terms with respect to contracts of employment in the non-union context, all contracts of employment must provide for at least the minimum standards set out in the Employment Standards Code Parties may not contract out of the Employment Standards Code.

  • Non-Compulsory Terms
  • Parties to an employment contract are free to contract on such terms as they may agree provided that the statutory minimum provisions set out in the Employment Standards Code are met and that the terms do not breach other applicable laws (for example, human rights legislation).

Types Of Agreement

Employment arrangements can take many forms. Contracts of employment may be oral or in writing. They may be for an indefinite term (terminable on reasonable notice) or of a fixed term. Collective agreements under the Labour Relations Code, where employees are represented by a union as their exclusive bargaining agent, are typically more exhaustive than employment agreements in the non-unionized sector.


All employees owe their employers a duty of honesty, loyalty, and good faith. Employees have a duty not to disclose confidential information or trade secrets learned in the course of their employment. The duty of confidentiality may continue even after the employment relationship has ended. Certain senior employees may be considered fiduciaries and held to a higher standard than others.

The parties may choose to enhance an employee’s obligation by entering into a confidentiality agreement in respect of information acquired during employment. An employee who is not subject to a confidentiality or non-competition agreement may not take customer lists or confidential documents on departure from an employer but is otherwise at liberty to use information which has been acquired during employment.

Ownership of Inventions/Other Intellectual Property (IP) Rights

Typically, inventions or innovations conceived or created by employees during the course of their employment are the property of the employer. The parties, however, can contract with one another in respect of such matters. Federal legislation governs the protection of intellectual property rights.

Pre-Employment Considerations

The Alberta Human Rights Act applies to prospective employees, as well as current employees. Employers must comply with human rights laws with respect to job-postings and the interview process before an employee is hired. Pre-employment background checks, criminal record checks, and drug and alcohol tests may be permitted in certain situations, but employers must comply with privacy and human rights legislation at all times.

Hiring Non-Nationals

Federal immigration laws apply within the jurisdiction of Alberta and contain strict rules about hiring non-nationals


Hiring Specified Categories Of Individuals

The Alberta Human Rights Act provides that an employer may not refuse to employ, or refuse to continue to employ, or discriminate against any person with regard to employment or condition of employment, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation unless that refusal, limitation, specification, or preference is based on a bona fide occupational requirement.

The Employment Standards Code also contains provisions that restrict the hiring of employees under 18 years old.

Outsourcing And/Or Sub-Contracting

There are no specific rules about out-sourcing and/or sub-contracting. However, some collective agreements in the unionized sector may restrict the ability of an employer to contract out services which might otherwise be performed by employees who are covered by a collective agreement. Whether the individual to whom the work is “contracted out” becomes an employee will depend upon the intention of the parties and the nature of the relationship between the employer and that contracted party.

Changes To The Contract

Employers may make changes to the employment contract. However, unilateral changes of a fundamental nature may amount to a breach of the employment contract. The employer may then be found liable to the extent there has been non-compliance with the termination provisions of the contract, including the implied term to provide reasonable notice.

Change In Ownership Of The Business

The sale of all or part of a business or a substantial part of the assets of a business gives employees certain rights. The vendor of the business will be liable to employees if their employment should come to an end as a result of the sale. The employees will be entitled to notice or pay in lieu as contemplated by their contracts of employment with the vendor. If the business carries on and the employees remain employed with the purchaser, any claim for wrongful dismissal (the failure on the part of the employer to give notice) will have been completely mitigated. Although an employee is not obliged to accept employment with the purchaser/employer, a failure to take such employment could be construed as failure on the part of the employee to take reasonable steps to mitigate damages flowing from the termination. The employee’s claim for damages against the dismissing employer may be limited accordingly. The Employment Standards Code provides that where the employees of the vendor serve the purchaser, the employment will be treated as being continuous insofar as the Employment Standards Code entitlements are concerned.

In the unionized context, the Labour Relations Code allows collective bargaining rights to flow through changes in ownership so long as there is a continuation of the same business. If a union seeks to bind a successor employer to collective bargaining rights, the union must make application to the Labour Relations Board.

Social Security Contributions

Employers are required to remit Canadian Pension Plan and Employment Insurance contributions on behalf of employees. Employers are also obliged to participate in the workers’ compensation scheme set out in the Workers’ Compensation Act.

Accidents At Work

The Workers’ Compensation Act and regulations contain rules relating to accidents at work. The Act governs no-fault insurance for injuries sustained at the worksite. The Occupational Health and Safety Act and related code and regulations sets guidelines for and enforcement of occupational health and safety rules. Significant penalties may be imposed upon an employer if the employer has created an environment which has contributed to a workplace accident or injury.

Discipline And Grievance

The ability of an employer to discipline employees in the non-unionized sector depends on the nature of the contract of employment. At common law, the ability to discipline has constraints. To the extent that any imposed discipline is inconsistent with the contract of employment, it may be seen as effecting a dismissal of the employee. In practice, progressive discipline is administered in the non-union context.

In the unionized sector, the ability of the employer to discipline for misconduct is set out in the collective agreement. Collective agreements typically call for progressive discipline to be applied before termination of an employee will be justified.

If an employee in the unionized context considers discipline to have been unjustly applied, access to a grievance procedure is mandated. The grievance process usually ends with a decision of an arbitrator appointed by the parties who will decide whether discipline has been justified and fairly applied.

There is no grievance process at common law. An employee who has been unjustly disciplined may treat the contract of employment as having come to an end and seek damages for the failure of the employer to terminate in accordance with the terms of the agreement.

Harassment/Discrimination/Equal pay

The Alberta Human Rights Act prohibits discrimination in employment on certain enumerated grounds. To the extent that there is any harassment or discrimination rooted in those enumerated grounds, an employer may be found liable for breach of the Act, unless appropriate steps have been taken to prevent such acts or properly deal with such complaints.

Harassment may also engage the Occupational Health and Safety Act to the extent that the employer can be said to have failed to provide a safe workplace.

Under the Alberta Human Rights Act, employees performing the same or substantially similar work for an employer must be paid at the same rate of pay, regardless of their gender, gender identity, or any other enumerated ground.

Compulsory Training Obligations

Pursuant to occupational health and safety legislation, employers in Alberta must provide employees with the training needed to perform their jobs in a healthy and safe manner.

Offsetting Earnings

An employer must not deduct, set off against, or claim from the earnings of an employee any sum of money, unless allowed to do so pursuant to the Employment Standards Code. Deducting from earnings is permitted when required by law, when authorized by a collective agreement, when personally authorized in writing by the employee, when made to recover an overpayment due to a payroll calculation error, or when made to recover vacation pay that was paid to an employee before they earned it. An employer may not deduct from earnings a sum for uniforms, faulty workmanship, or cash shortages or loss of property if an individual other than the employee had access to the cash or property.

Payments For Maternity And Disability Leave

Maternity leave and disability leave are not typically paid leaves unless the parties agree.

Compulsory Insurance

Aside from Employment Insurance and workers’ compensation insurance, there is no compulsory insurance in Alberta.

Absence For Military Or Public Service Duties

An employee who has completed at least 26 consecutive weeks of employment and is a “reservist”, as defined by the Employment Standards Code, is entitled to reservist leave without pay. Such an employee is entitled to be reinstated to the position occupied before the reservist leave began or be offered alternative work of a comparable nature.

The Jury Act provides that an employer must allow an employee a sufficient leave of absence to serve as a juror when that person is summoned.

The Canada Elections Act and Election Act provide that employees who are allowed to vote are entitled to three consecutive hours to do so.

Works Councils or Trade Unions

In Alberta, workers are entitled to unionize for the purpose of collective bargaining.

The Labour Relations Code governs the formation of trade unions and the process by which they may become certified bargaining agents for employees.

Employees’ Right To Strike

Unionized employees have the right to strike under the Labour Relations Code, subject to certain conditions. Where an impasse arises in the negotiation of employment terms after good faith collective bargaining, a strike vote may be taken. After a successful vote, employees may strike after notifying the employer of their intention to strike. Likewise, an employer may lockout employees where such an impasse occurs, on appropriate notice.

Some employees are considered to provide essential services and may be restricted from striking.

Employees On Strike

An employer may not fire employees who are on legal strike unless their actions during the strike amount to just cause for dismissal. Illegal strikes may give rise to the ability on the part of the employer to discipline and dismiss employees.

Employers’ Responsibility For Actions Of Their Employees

Employers are vicariously responsible for the actions of their employees where the employees are acting in the course of their employment.

Procedures For Terminating the Agreement

The contract of employment must be terminated in accordance with its terms. Where a contract expressly provides for the manner in which termination may occur, the provisions of the contract must be observed.

Where a contract is not specific about the manner by which it may be terminated, the employer will be expected to comply with any terms implied by law, including an implied term to the effect that reasonable notice of termination must be given to an employee.

The termination must also comply with the Employment Standards Code and the Alberta Human Rights Act. There is no requirement for approval by the Courts or any regulatory body before termination is effective.

Instant Dismissal

Subject to the terms of the employment agreement, an employer may dismiss an employee at any time, for any reason other than those prohibited under the Alberta Human Rights Act or other legislation. When the termination is “without cause”, reasonable notice of the termination must be given. Reasonable notice is not required to be provided when an employer has “just cause” for dismissal. “Just cause” is conduct on the part of the employee which is so inconsistent with the continuation of the employment relationship that the employer is entitled to accept the conduct of the employee as bringing an end to the contractual relationship. Employees terminated for “just cause” may be dismissed without notice or payment in lieu thereof.

Employee's Resignation

An agreement may be terminated by the employee’s resignation. The resignation must occur in accordance with the terms of the employment agreement. The Employment Standards Code provides that an employee must give one week of notice of resignation if the employee has been employed for less than two years, and two weeks’ notice if the employee has been employed for longer than that. At common law, an employee is obliged to provide an employer with reasonable notice of the employee’s intention to terminate the employment agreement unless the manner by which the employee may resign is expressly set out in the employment contract.

Termination On Notice

Either party may terminate the employment agreement by giving notice to the other party. Notice cannot be less than the minimum standards set out in the Employment Standards Code, which varies according to the length of employment. At common law, however, there is an implied term that the notice of termination may exceed the statutory minimum. The employment agreement (including any implied term) must be observed in this respect. Reasonable notice at common law is determined having regard for the employee’s age, the length of service, the nature of the position held, and the availability of similar work.

Termination By Reason Of The Employee's Age

The Alberta Human Rights Act prohibits an employer from discriminating against an employee on the basis of age.

Automatic Termination In Cases Of Force Majeure

An agreement may be terminated automatically in those cases where its performance by the parties is rendered impossible. No notice or compensation is required to be given or paid if work is impossible to perform because of unforeseen circumstances. In such circumstances, the contract is considered to be “frustrated”. The parties are discharged from further performance. Bankruptcy, receivership, insolvency, or other adverse economic conditions do not constitute “frustration” of the contract.

Collective Dismissals

Where an employer seeks to terminate 50 or more employees, there is an obligation under the Employment Standards Code to advise the Director of Employment Standards.

Termination By Parties’ Agreement

Employment may be terminated by the parties by mutual agreement at any time.

Directors Or Other Senior Officers

There are no separate rules for terminating directors or other senior officers. Directors and officers may be removed in accordance with the Business Corporations Act. Only to the extent that they are “employees” as opposed to directors and officers does a claim for wrongful dismissal arise.

Special Rules For Categories Of Employee

In general, there are no special rules regarding termination that apply to different classes of employees within an organization. There are a few limited exceptions to this general rule – for example, casual employees who are employed under an arrangement where they may choose to work or not when asked to do so may not be entitled to notice of termination under the Employment Standards Code.

Different rules may apply in respect of those employees who are in a unionized environment as compared to those whose employment is covered by an individual contract of employment. In the unionized context, dismissal is typically governed by the terms of the collective agreement, which will include an arbitration process and will typically contemplate the possibility of an employee’s reinstatement. At common law, reinstatement is not a recognized remedy for non-unionized employees.

Whistleblower Laws

In the provincially regulated private sector, there is no specific whistleblower protection legislation. However, employment legislation including the Alberta Human Rights Act and the Occupational Health and Safety Act contain anti-retaliation provisions.

Specific Rules For Companies in Financial Difficulties

Terminated employees are entitled to the notice contemplated in their contract of employment, express or implied, even when the employer is in financial difficulty.

Under the Business Corporation Act, directors of a corporation are jointly and severally liable to employees of the corporation for all debts not exceeding six months wages payable to each employee for services performed. Additionally, the federal wage earner protection program provides timely payment of eligible wages owing to workers who have lost their job because their employer has gone bankrupt or became subject to receivership. Eligible wages under the program include salaries, commissions, vacation pay, termination pay and severance pay.

Special Rules For Garden Leave

There are no special rules for garden leave in the Employment Standards Code. At common law, garden leave could result in a claim by the employee that their employment has been constructively dismissed, as it is a fundamental term of a contract of employment that an employee be provided with work.

Restricting Future Activities

There are no statutory rules that encumber a departing employee’s ability to work. However, the parties are free to enter into contractual non-competition and non-solicitation clauses. Such restrictive covenants may be enforced if they are reasonably required to protect the proprietary interests of the employer. The employer must establish that the covenants are reasonable in scope, as well as from both a temporal and geographical perspective. To the extent that such clauses are considered to be injurious to the public interest, they will not be enforced. In the absence of restrictive covenants, employees are free to work for other employers, even those who may be in competition with the dismissing employer. All employees are restricted from removing confidential information, including customer lists. There are certain employees who, by virtue of their senior positions, are considered to be “fiduciaries” who may be restrained, for a reasonable period, from soliciting customers of a former employer.

Severance Payments

Other than the contractual (express or implied) terms, or statutory notice or pay in lieu of notice to which an employee is entitled, there are no other “severance” entitlements payable to an employee upon termination.

Special Tax Provisions And Severance Payments

Severance payments are taxable.

Allowances Payable To Employees After Termination

Where an employee is dismissed, there is no obligation on the employer to provide any further allowances to the employee after the termination. However, to the extent that the employee maintains a damage claim for the failure on the part of the employer to provide the employee reasonable notice of termination, the value of the employer’s contribution to any benefit plans which would have accrued during the period of reasonable notice will form part of the damage claim of the employee. Where the employee continues employment under reasonable working notice, the obligations of the employer to make contributions to the benefit plans of the employee continue.

Time Limits For Claims Following Termination

The time limit for commencing a Court action in Alberta for breach of an employment contract is two years from the date of the wrongful termination. An Employment Standards Code complaint for failure to provide statutory notice or pay in lieu of notice can be made up to six months after employment ends.

Specific Matters Which Are Important Or Unique To This Jurisdiction

Alcohol and drug dependencies are considered to be disabilities under the Alberta Human Rights Act and employers are obliged to accommodate all disabled employees, including those with dependency illnesses, to the point of undue hardship. Random drug and alcohol testing are not generally permitted in Alberta. Alcohol and drug tests may be administered by employers in those cases where an employer has reasonable grounds to suspect that an employee is affected by drug and alcohol, or where there has been a workplace incident to which alcohol and drug consumption may have contributed.

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The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021