Forums For Adjudicating Employment Disputes
There are several 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 Saskatchewan is the superior court in which claims are litigated in the first instance. Claims of a value of $30,000 or less may be decided by the Small Claims Division of the Provincial Court.
The Saskatchewan Employment Act deals with both unionized and non-unionized employment including the granting of collective bargaining rights, negotiation of collective agreements, strikes, and lockouts. All applications concerning union certification and some other disputes arising in the unionized setting are decided by the Saskatchewan Labour Relations Board.
The Saskatchewan Employment Act provides that all disputes between an employer and union respecting the meaning, application or alleged contravention of a collective agreement are to be determined by arbitration after exhausting any grievance procedure established in the collective agreement. Arbitration typically contemplates the appointment of a private arbitrator to adjudicate disputes.
In respect of those employees who are not unionized, The Saskatchewan Employment Act sets out minimum employment standards and entitlements. Employees may have claims under The Saskatchewan Employment Act adjudicated by the Director, whose decision is subject to an appeal to the Saskatchewan Labour Relations Board.
In respect of those employers involved in undertakings that are federal in nature, the Canada Labour Code is engaged. Disputes in federally regulated industries involving unionized workplaces are considered by the Canada Industrial Relations Board. In non-unionized, federally regulated industries, wrongful terminations may be heard by an adjudicator appointed under Part III of the Canada Labour Code .
The Main Sources Of Employment Law
In Saskatchewan, the law of labour and employment is essentially the law of contract, subject to a legislative overlay of minimum employment standards ( The Saskatchewan Employment Act), human rights ( The Saskatchewan Employment Human Rights Code, 2018 ), collective bargaining rights (The Saskatchewan Employment Act), and occupational health and safety (The Saskatchewan Employment Act and The Workers Compensation Act, 2013) .
The Saskatchewan Employment Act has application in the non-unionized sector. It sets out a number of minimum employment standards in respect of hours of work, minimum wage, vacation, and leaves. It also sets out minimum requirements which must be observed in the termination of the employment relationship.
The Saskatchewan Employment Act also applies in respect of the unionized sector. This legislation deals with the acquisition and enforcement by unions of collective bargaining rights and the oversight of unionized labour relations in the Province.
The Saskatchewan Human Rights Code, 2018 prohibits discrimination in hiring and employment on the basis of certain enumerated grounds.
The Workers Compensation Act, 2013 of Saskatchewan sets out an insurance structure which compensates workers for injuries and diseases. This program is funded by assessments on employers in the Province.
The Saskatchewan Employment Act also contains provisions with respect to workplace health and safety.
National Law And Employees Working For Foreign Companies
Saskatchewan law will apply to all employees earning wages in the Province of Saskatchewan. Where an employee receives wages outside of Saskatchewan and is only working in Saskatchewan 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, Saskatchewan law will not apply to employees of companies working outside of Saskatchewan.
Saskatchewan has provincial privacy legislation that applies to the collection and use by government employers of personal information from their employees, but Saskatchewan does not have legislation that is applicable to provincially regulated private sector employers’ collection and use of employee personal information. Federally regulated employers located in Saskatchewan are subject to the requirements of the Canadian Personal Information Protection and Electronics Documents Act. Nonetheless, all private sector Saskatchewan employers are obligated as basic requirements to inform employees of the reason for collecting the personal information they may ask employees to provide. Private sector employers may also only use personal information collected from employees for legitimate and lawful purposes and must take reasonable steps to ensure the personal information of employees that they collect is kept confidential.
Legal Requirements As To The Form Of Agreement
There are no legal requirements as to the form of an 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 how 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 Saskatchewan Employment Act, which includes a graduated notice entitlement of employees (from 1 week to 8 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 Saskatchewan Employment Act , 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 Saskatchewan Employment Act . 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 Saskatchewan Employment Act provides that an employer may terminate an employee’s employment in the first three months of employment without notice or pay in lieu of notice. This probationary period relieves the employer from providing the minimum notice under The Saskatchewan Employment Act . It 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 Saskatchewan Employment Act limits the number of consecutive hours that may be worked by an employee. Without the consent of the employee, no employer shall require an employee to work more than 44 hours in a week. An employer must pay an employee overtime wages if the employer requires or allows an employee to work more than eight hours per day in a five-day work-week, or more than ten hours per day in a four day work-week, or more than forty 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 enter into a modified work arrangement that effectively averages hours worked over a 1-to-4-week period without the obligation to pay overtime.
Certain employees are excluded from some or all of the minimum standards set out in The Saskatchewan Employment Act.
Special Rules For Part-time Work
If an employer has 10 or more full-time equivalent employees and provides certain employment benefits to those employees, then that employer will also be required to provide those benefits to “eligible” employees who work less than 30 hours per week (subject to certain qualifying criteria).
Employees must receive at least the minimum wage set by the Province.
Employees who work 20 hours or more per week are entitled to at least one day of rest in each work week.
The Saskatchewan Employment Act provides that employees have a vacation entitlement of three weeks after each of the first nine years of employment and four weeks after ten years of employment. There are a number of statutory holidays that are set out in The Saskatchewan Employment Act which the employee is entitled to take off work, or alternatively, be paid additional amounts if required to work.
The employment of a child under the age of 16 is only permitted under The Saskatchewan Employment Act if the child’s parents or guardian provide consent and the young person has obtained a Young Worker Readiness Certificate. There is no compulsory retirement age.
The Saskatchewan Human Rights Act, 2018 requires that an employer may 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 Saskatchewan Employment Act also prohibits the termination or discipline of an employee who is absent from work due to illness provided the absence does not exceed 12 days in a calendar year in the case of an illness or injury that is not serious, or 12 weeks in a period of 52 weeks in the case of a serious illness for injury.
Employers frequently have policies which 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.
An employee who has completed at least 13 consecutive weeks of employment is entitled to unpaid leave of up to 26 weeks to provide time to donate and recover from an organ donation.
An employee who has completed at least 13 consecutive weeks of employment and is a victim (or a dependent of the employee is a victim) of family violence or any sexual violence is entitled to unpaid leave of up to 10 days in a period of 52 weeks to seek medical or other attention.
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 Saskatchewan. However, if an employer chooses to put such a plan in place, it will be governed by The Pension Benefits Act, 1992. 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 Saskatchewan Employment Act, an employee who has been employed for at least 13 consecutive weeks is entitled to maternity or adoption leave of 19 weeks without pay. Parents (including adoptive parents who are employed for at least 13 consecutive weeks are entitled to 71 weeks of parental leave (59 weeks if the employee has taken maternity/adoption leave). The Saskatchewan Employment Act provides protection for those employees who may be on maternity/adoption or parental leave. The employer must reinstate the employee in the same or comparable position with no less pay, seniority and benefits than the employee was receiving immediately prior to the leave.
An employee who has completed at least 13 consecutive weeks of employment is entitled to unpaid compassionate care leave of up to 28 weeks to provide care or support to a seriously ill family member.
If the employee’s family member is critically ill, the employee is entitled to unpaid leave for up to 37 weeks in the case of a critically ill child or up to 17 weeks in the case of a critically ill adult family member, to provide care and support for the family member. As with most other leaves, an employee is only entitled to this leave after they have completed at least 13 consecutive weeks of employment.
An employee who has completed at least 13 consecutive weeks of employment is entitled to unpaid leave of up to 104 weeks if the employee’s child dies as a result of a crime, or up to 52 weeks if the employee’s child disappears as a result of crime.
During the employee’s permitted leave, 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 Saskatchewan Employment Act. Parties may not contract out of the minimum standards set out in The Saskatchewan Employment Act.
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 Saskatchewan Employment Act. are met.
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 Saskatchewan Employment Act, 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 noncompetition agreement or who owes a fiduciary duty to the employer may not take customer lists or confidential documents on departure from an employer but are generally otherwise at liberty to use information that is in their head that 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.
Except in some very limited circumstances, The Saskatchewan Human Rights Act, 2018 prohibits discrimination in hiring, or the use of an employment agency that discriminates in hiring, on the basis of religion, creed, marital status, family status, sex, sexual orientation, disability, age, colour, ancestry, nationality, place of origin, race or perceived race, receipt of public assistance, or gender identity unless the limitation, specification or preference is based on a bona fide occupational requirement. Because of these laws, an employer should not publish an advertisement nor ask for information about or express a limitation, specification or preference about any of the prohibited grounds unless the limitation, specification or preference is based on a bona fide occupational requirement.
Employers are allowed to conduct criminal record searches of prospective employees, provided there is a bona fide business reason for obtaining such information and the prospective employees consent.
Federal immigration laws apply within the jurisdiction of Saskatchewan and contain strict rules about hiring non-nationals.
However, Saskatchewan employers from all types of business can hire foreign workers through the Saskatchewan Immigrant Nominee Program. Before employers can hire foreign workers in Saskatchewan, they must register with the Ministry of Labour Relations and Workplace Safety and obtain a Certificate of Registration, as outlined under The Foreign Worker Recruitment and Immigration Services Act.
Hiring Specified Categories Of Individuals
As previously noted, except in very limited circumstances, The Saskatchewan Human Rights Act, 2018 prohibits discrimination in hiring, or the use of an employment agency that discriminates in hiring, on the basis of religion, creed, marital status, family status, sex, sexual orientation, disability, age, colour, ancestry, nationality, place of origin, race or perceived race, receipt of public assistance, or gender identity unless the limitation, specification or preference is based on a bona fide occupational requirement.
The Saskatchewan Employment Act also contains provisions which restrict the hiring of employees under 16 years old.
Outsourcing And/Or Sub-Contracting/Temporary Agency Work
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.