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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.