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Canadian Employment Issues (Page 2)
DISCLAIMER - The information provided here is of a general nature and may not apply to any specific or particular situation. It is not to be considered as a legal advice nor presumed to be indefinitely up to date.
Canadian pay equity legislation is based on the assumption that the labour force is segregated in ways that once served to systematically undervalue women's work, and that neither the market nor employers would correct this inequity. It was designed to alter the value attached to such work by forcing employers, working with unions when they were present, to examine their pay practices and "to ensure the comparison system remedies the historical undervaluation of women's work." It is not intended to change what men and women do in the labour force, but rather to recognize and pay for the value of the work that was being done by women. While it addressed the systemic discrimination expressed in the wage rates women shared, it did nothing about the discrimination individual women faced in seeking other, usually more highly paid work. Employment equity, that is Canadian legislation requiring positive measures to ensure equality, is intended to do just that.
The Supreme Court of Canada, in interpreting human rights legislation, made a number of rulings that had a significant impact on the future of pay equity legislation. The first major ruling was that discrimination is primarily systemic and unintentional and includes employment policies and practices which may appear neutral, but which disproportionately impact on disadvantaged groups such as women. The Court also decided that human rights laws are special laws which are next in importance to the constitution and must be practically enforceable so that discrimination can be identified and eliminated. The Court also found that special measures or an employment equity plan which included hiring goals are reasonable and necessary positive measures to remedy systemic discrimination.
2. Terminating the Employment Relationship
The courts have expanded contract law in employment cases. They have consistently held that every contract of employment, whether in writing or not, includes an implied term to the effect that no employee will be dismissed without reasonable notice or compensation unless the employer can establish justifiable cause for termination. In the event of such dismissal without cause, the employer will be held liable for the inevitable economic consequences suffered by the employee over a reasonable period of notice. On the basis of certain established criteria, the court decides what period of notice is reasonable or the amount of compensation to be provided the employee in lieu of notice. The award will be reduced by any employment income the terminated employee may have earned during the period of reasonable notice. In the event of such dismissal without cause, the employer will be held liable for the inevitable economic consequences suffered by the employee over a reasonable period of notice. On the basis of certain established criteria, the court decides what period of notice is reasonable or the amount of compensation to be provided the employee in lieu of notice. The award will be reduced by any employment income the terminated employee may have earned during the period of reasonable notice.
Reasonable Notice
Mr. Justice McRuer, set out in Bardal v. Globe & Mail Ltd. certain criteria that he believed ought to determine reasonable notice in cases of wrongful dismissal ?“There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant, and the availability of similar employment, having regard to the experience, training, and qualifications of the servant.?This test leaves wide discretion with the individual judge, who may use these guidelines in a creative way, depending on his own impressions of the equities involved in the case.
Availability of Similar Employment
It is the last part of the criteria laid down by Mr. Justice McRuer - the "availability of similar employment" - that has caused certain problems. The courts have taken into account the narrow expertise of the terminated employee, the difficulty of finding similar or equivalent employment, and the limited economic circumstances into which the employee has been placed by the termination of employment. As one judge put it in Isaacs v. M. H. G., - “the fact that the defendant well knew that in discharging the plaintiff it was putting him into a depressed job market dictates a period of reasonable notice that must take into consideration the difficulty that the plaintiff would have in relocating.?/p>
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