UBC Phar400-employment law-19oct2012

retailSOS.ca | Gerry Spitzner

October 19, 2012

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One of the biggest issues facing Canadian

Businesses today is...

The Most Common Areas of Dispute

◦ Employment Contracts—interpretation and enforceability of

terms, conditions and clauses.

◦ Employment Dismissals / Terminations—wrongful,

constructive and for cause.

◦ Notice for Terminated Employees—disputes over severance

packages and terms of dismissal.

◦ Workplace Issues—harassment, violence, privacy, electronic

media use, disability, medical leaves and absenteeism.

4 retailSOS.ca | Gerry Spitzner

Overview of the main BC Employment and

Labour Laws that govern the workplace

Disclaimer: These items are intended for general informational purposes

only and should not be construed or relied upon as legal advice. The legal

issues addressed in these items are subject to changes in the applicable

law. You should always seek competent legal advice concerning any

specific issues affecting you or your business.


What’s the difference?

◦ EMPLOYMENT LAW in Canada generally refers to the law

governing the relationship of an individual employee to an

employer,

◦ as distinguished from LABOUR LAW, the law of unionized

COLLECTIVE BARGAINING relationships.

◦ Employment law is concerned mainly with wrongful

dismissal, and a complex mass of statute law dealing with

minimum labour standards, human rights, occupational

health & safety and workers' compensation.


Thoughtstarters

Human Rights Act and BC Human Rights Code

Employment Standards Act

Labour Relations

Workers Compensation Act

Personal Information Protection Act (PIPA)


Managing The HR Process

Human resources

management (HRM) is a

process that can be

effectively and productively

managed.


People Are An Investment in The Business

◦ Human resources (HR) are a substantial investment for

most companies.

◦ Employees are your internal customers.

◦ People are your most important resource.

◦ HRM is an on-going process that constantly needs

attention.

◦ Potential legal liability if HRM is not fair and consistent.

◦ Create a positive workplace


Managing human resources is 10% law and 90%

process – the fairness and consistency of your

methods will determine your results

Leadership, Communication and Systems are the key

to fairness and consistency


“The most important thing in communication

is hearing what isn't said” - Peter Drucker, management ‘guru’

The 3 Elements of Direct Face to Face Communication

◦ Words only account for 7% of any message

◦ Emphasis and Tone accounts for 38%.

◦ Body Language accounts for 55%.


“You don't manage people; you manage

things. You lead people.” – Grace Hopper

◦ Manage things including processes, tasks, jobs, numbers

and information; lead people and teams.

◦ People are primarily emotionally driven; appeal to both the

heart and the head.

◦ The quality of your employee's work experience has a

direct impact on the quality of your customer's experience.


Do positive employee relations and practices affect

customer experience?

◦ Obtaining a new customer costs 5 times more than

retaining a loyal customer, and replacing an employee will

cost 100% or more of that employee’s annual wages.

◦ Over 68% of customers leave a business relationship due

to attitude and indifference.

◦ Consider the cost to acquire a customer and the potential

Life Time Value ( L T V ) each one represents.

◦ Consider the cost of replacing & training a new employee.


There are currently four key

mechanisms in Canada to protect

human rights:

1. the Canadian Charter of Rights

and Freedoms,

2. the Canadian Human Rights Act,

3. Human Rights Commissions, and

4. provincial human rights laws

and legislation.


Human rights laws operate in two jurisdictions: the federal and the provincial

◦ Canadian Human Rights Act is administered and enforced by the Canadian Human Rights Commission and Tribunal

◦ British Columbia Human Rights Code is administered by the BC Human Rights Tribunal

◦ Both pieces of legislation are similar in the protections they provide

◦ Neither the federal nor provincial legislation trumps or supercedes the other. Rather, the appropriate legislation is determined according to which level of government regulates a specific area.


A statute originally passed by the Parliament of Canada in 1977

◦ goal of extending the law to ensure equal opportunity to individuals

◦ based on a set prohibited grounds such as gender, disability, or religion

◦ applied throughout Canada, but only to federally regulated activities. (ie Fed Govt Dept’s, Crown Corps, private companies such as airlines, banks, telephone, radio and TV stations)

◦ each province and territory has its own anti-discrimination law that applies to activities that are not federally regulated


Most significant impact on HRM comes from human

rights legislation.

Human rights law entitles every Canadian to equal

opportunity to employment and the right to work each

day free of discrimination and harassment.

Specifically, the act falls under the jurisdiction of the

Federal Justice Department.

Comparable to Charter of Rights and Freedoms.


Examples of areas regulated by the federal government

and governed by the Canadian Human Rights Act would

include employment and services of:

◦ the federal government and all its ministries;

◦ all arms of the federal government such as the R.C.M.P. the

Employment Insurance Commission or Canada Post;

◦ telecommunications, which are regulated by the CRTC, all inter-

provincial transportation such as Air Canada and Via Rail;

◦ chartered banks, but not credit unions; and

◦ all unions attached to any of the above.


Prohibits discrimination in employment

advertisements, wages, employment standards,

and discrimination by unions and associations.

If another statute, such as the Worker's

Compensation Act, conflicts with it, the BC Human

Rights Code takes priority.


Discrimination and Harassment

◦ Discrimination and harassment is defined by it’s

effect, not the intention,

◦ does not have to be intentional to be illegal under

the Code.

◦ It is the employer's responsibility to maintain

working conditions free of discrimination and

harassment, regardless of whether the employer is

the cause of the discrimination or not.


Workplace & Sexual Harassment

◦ Serious issue in today's workplaces and can be

quite costly for organizations.

◦ Ensuring a clear policy to address concerns and

steps to try to resolve issues is a firm step to

creating and maintaining a healthy workplace and

avoiding legal turmoil.

◦ Employers are responsible for protecting their

employees.


Prohibited Grounds of Discrimination

◦ race, colour, ancestry, place of origin

◦ political belief, religion

◦ marital status, family status

◦ physical or mental disability

◦ sex, sexual orientation

◦ age

◦ conviction for a criminal or summary conviction offence

that is unrelated to the job in question


Recruitment and selection

◦ Interviewing, reference checking

◦ Job postings

◦ The interview

◦ Making the offer

◦ Reference checks (calls from other employers)

◦ Social Media


The BC Human Rights Code, applies to employers, service

providers and all provincially regulated businesses and agencies.

Examples of provincially regulated areas include:

◦ all provincial, local & municipal government departments, services/policies;

◦ schools and universities;

◦ hospitals and medical clinics;

◦ all private businesses & services such as stores, restaurants, movie theatres;

◦ credit unions;

◦ non-profit organizations and some of the services they provide;

◦ rental accommodations including hotels and rental property; and

◦ the purchase of either residential or commercial property.


ESA is legislation enacted by

the provincial government to

protect the rights of working

people.


If you are an employer in B.C., for most

occupations the applicable legislation is the

British Columbia Employment Standards Act.

The ESA--refers to the basic or minimum

employment conditions in any organization.


The purposes of this Act

◦ Sections within the act outline the employers

responsibility to their employees,

◦ Notably things such as minimum wage, meal

breaks, dispute resolution and parental leave.

◦ The act also works to protect residents of the

province by preventing employment

discrimination.


Scope of this Act

◦ Applies to all employees other than those excluded

by regulation.

◦ If a collective agreement contains no provision

respecting a matter, the specified provision of this

Act is deemed to be incorporated in the collective

agreement as part of its terms.


Wages and benefits

Pay administration and payroll records

Paydays

How wages are paid

Payroll records

Deductions

Assignments


Labour relations--governs the

relationship between a trade

union and an employer.


The BC Labour Relations Board is

◦ An independent, administrative tribunal with the

mandate to mediate and adjudicate employment

and labour relations matters related to unionized

workplaces.

◦ The role of the union is to be the voice of

employees, particularly during collective

bargaining.


The Labour Relations Code is primarily

concerned with collective bargaining and

labour management relations in BC.

The Labour Relations Code governs all

aspects of collective bargaining amongst the

provincially-regulated employers and

employees.


Collective Bargaining Agreements

◦ Collective bargaining produces a collective agreement which is a legal document outlining the terms and conditions of employment.

◦ Frequently referred to by the acronym of CBA.

◦ The labour contract sets down the relationship between the employer and the employees and among the employees themselves.

◦ The resolution of contract disputes is through a grievance procedure.


This Act applies to all

employers, and all workers in

British Columbia except

employers or workers exempted

by order of the Board.


Workplace policies and practices must

comply with applicable Occupational Health

and Safety laws and regulations.

And with Workers' Compensation laws and

regulations, which deal with compensation

for accidents and disease.


Occupational Health and Safety (OHS)

◦ The OHS Regulation contains legal requirements that must be met by all workplaces under the inspection jurisdiction of WorkSafeBC.

◦ Many sections of the Regulation have associated guidelines and policies.

◦ Applies to all organizations and recent changes have placed more responsibility on employees for the creation and maintenance of a healthy and safe work environment.


OHS policy needs to be specific and deal with any unique workplace issues.

Here is a sample list of issues:

◦ Smoking and scents

◦ Workplace violence

◦ Working alone

◦ Blood borne pathogens

◦ Substance abuse


Consider this list for Pharmacy...

◦ immunization, safe sharps disposal, returned

medication disposal, compounding labs,

hazardous materials, robbery prevention, ladders,

box cutters, deliveries, lifting, repetitive motion,

anti-fatigue flooring, height of the counter, lighting,

air conditioning, air quality, ventilation, first aid,

repairs and maintenance of broken drawers,

flooring, counter tops, staff washrooms, staff room.


Health and Safety Committee

◦ An employer must establish and maintain a joint

health and safety committee.

◦ (a) in each workplace where 20 or more workers of

the employer are regularly employed, and

◦ (b) in any other workplace for which a joint

committee is required by order.


Work Safe BC

◦ Dedicated to promoting workplace health and

safety for the workers and employers of BC.

◦ Consult with and educate employers and workers

and monitor compliance with the Occupational

Health and Safety Regulation.

◦ Assessments are a % of payroll and are based on

classification.


The Office of the Information and

Privacy Commissioner (OIPC) is

independent from government and

monitors and enforces British

Columbia's Freedom of Information

and Protection of Privacy Act

(FIPPA) and Personal Information

Protection Act (PIPA).


The federal government brought the Personal

Information Protection and Electronic

Documents Act (PIPEDA) into force in January /04.

BC chose to introduce its own legislation, namely

the Personal Information Protection Act (PIPA),

Which regulates the collection, use and

disclosure of personal information by private

organizations.


Legal requirements

◦ To be in compliance with the Act, every

organization in B.C. must have appointed a person

to oversee their personal information policy.

◦ Provincial employment standards mandate the

collection and retention of some specific

employee information, particularly with respect to

payroll.


Employee files and confidentiality

◦ ESA requires employers to keep certain

employment records

Security of personnel files

◦ Set up secure location to store employee records

Employee access

Company website

◦ Privacy policy


Defined Employment Law and Labour Law

HRM is 10% Law/90% process; fairness & consistency

Communication is key leadership characteristic

Manage things; lead people

Four key areas of law as it applies to BC

Human rights, Employments Standards Act, Labour

Code and Workers Compensation Act

How Personal Info Protection Act applies to employees


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retailSOS.ca is a Vancouver-based retail consultancy guiding

Pharmacy owners to create, engage and retain great customers

which results in increased sales and profit.

Gerry Spitzner works as a management consultant supporting

community Pharmacy owners to achieve results by aligning

their vision and implementing marketing strategy with

operational execution.

Drawing on 35+ years experience in drug store multi-site retail

operations, Pharmacy ownership and Pharmaceutical

wholesale supply-chain; Gerry brings the leadership, knowledge

and market awareness of ownership and business development

to Pharmacy owners to achieve growth objectives.
