Canadian laws governing employment issues exist on both a federal and provincial level. Two key pieces of legislation are Ontario’s Employment Standards Act, 2000 (“ESA, 2000″) and the Canadian Labour Code (“CLC”). Not only do the actual laws differ in each, but also the classification of employers and employees who qualify under each of the legislation’s jurisdiction.
Employees Protected Under the ESA, 2000
The ESA, 2000 is provincial legislation which is only applicable to employees who are not working for a federally regulated company, and who are working within Ontario’s jurisdiction, or perform work outside of the province’s jurisdiction which is a continuation of their employment within the province. Such employees must, at the same time, not belong to any of the following groups:
- unionized employees;
- secondary school students who are working through the school board in a work experience program;
- university or college students who have been approved by their institution to work in a program that is provided by the institution;
- inmates working in a work program;
- employees of rehabilitation work;
- employees involved in work done under the Ontario Works Act, 1997 for participating in a community;
- employees of a political, religious, trade or judicial office;
- police officers;
- employees working for either an embassy or a foreign nations consulate; or
- employees working within a federal jurisdiction.
Employees Protected Under the CLC
Conversely, the CLC applies to employees who are employed with a federally regulated company, with the exception of superintendents, managers, employees who exercise management functions, and employees who are part of a collective bargaining agreement.
A Prime Difference: Employee Terminations
A key distinction between the ESA, 2000 and CLC is the difference in possible remedies that employees may seek for wrongful dismissal. Terminated employees who fall under the jurisdiction of the ESA, 2000 are given six months from termination to make a complaint to the Ministry of Labour. Such an application has the effect of waiving any entitlements they might otherwise have won under common law. If, however, the complaint to the Ministry of Labour is withdrawn within two weeks of the date the claim was filed, employees can pursue a claim of wrongful dismissal through the Canadian court system.
Employees protected under the CLC are allowed ninety days from the date of dismissal to make a complaint for unjust dismissal. Employees can also pursue a claim of unjust dismissal through the Canadian Court system. However, claims for unjust dismissal are only available if the employee has been employed for twelve consecutive and continuous months. Employees are unable to allege unjust dismissal if they were terminated for lack of work, discontinuance of a function, or if a procedure for redress has been supplied elsewhere either in or under the CLC or any other Act of Parliament.
Determining when an unjust dismissal has occurred is not a straightforward process because there is no single definition for this term. Instead, multiple interpretations and definitions have been applied. It cannot be assumed that a dismissal is just if the employee is terminated for cause because an unjust dismissal is not solely determined on the cause of the dismissal, but more commonly by focusing on the process of dismissal.
In making a complaint of unjust dismissal under the CLC, the employee seeks more than mere compensation for severance pay which an employee is entitled to receive. The compensation that may be awarded is a reimbursement for any damages actually suffered as a result of the dismissal and may include monetary compensation equivalent to the amount that the employee would have received but for the dismissal. Other remedies include reinstatement, and/or equitable arrangements.
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