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Chapter1

The HRM3103 module on Employment Law aims to equip HR professionals with essential knowledge of employment law, including the distinction between common law and statute law, and the significance of the Canadian Charter of Rights and Freedoms. The module emphasizes the importance of understanding employment law for credibility in the workplace and outlines the sources of employment law in Canada, including provincial and federal statutes. Additionally, it discusses the enforcement mechanisms for employment law and encourages student engagement through discussions and quizzes.

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5 views

Chapter1

The HRM3103 module on Employment Law aims to equip HR professionals with essential knowledge of employment law, including the distinction between common law and statute law, and the significance of the Canadian Charter of Rights and Freedoms. The module emphasizes the importance of understanding employment law for credibility in the workplace and outlines the sources of employment law in Canada, including provincial and federal statutes. Additionally, it discusses the enforcement mechanisms for employment law and encourages student engagement through discussions and quizzes.

Uploaded by

jennifer.mcconachie
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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HRM3103: Module 1 Notes

Welcome to HRM3103, Employment Law. There are a lot of interesting aspects of the law to
cover, so let’s get to it.

MODULE 1 OBJECTIVES
Upon completion of this module, you will be able to:
1. Describe the importance of practical knowledge of employment law to HR
professionals.
2. Distinguish between common law and statute law and between federal and provincial
statutes.
3. Describe the content of the charter of Rights and Freedoms.

To do in Module 1
1. Introduce yourself on the Discussion Board. Tell us a little about yourself - your
background, your interest in employment law, and your future plans.
2. Download the Workbook to your desktop - either the MS Word version or the editable PDF
version. As you read the module notes and textbook, input your notes directly into this
workbook to create a study guide of the main points of this course.
3. Read the Module 1 Notes (below). Take notes in the workbook.
4. Read the textbook, Chapter 1. Take notes in the workbook.
5. Read the Comprehensive Case Scenario to prepare for the assignments in this course.
6. Test your understanding with the practice quiz.
7. Explore your knowledge with the discussion board question (below).

Importance of employment law to HR


professionals
You may ask yourself why you are taking this course. The answer lies in your credibility on the
job. Line executives, directors, and managers from other departments will rely on you to know
the law and how to interpret it. If you know the law, you will gain significant credibility on the job
and add value to day to day decision making in your organization. If you don’t, your credibility
could be damaged forever, and your company could suffer severe financial and other losses,
including loss of company image.
So, take the knowledge that you gain from this topic seriously. You will use it almost every day
on the job. You may feel that it is always appropriate to refer employment law questions to legal
experts. The answer to that is no, unless your firm is blessed with unlimited resources. There
may be a point at which legal expertise is required; but for most employment law issues, answers
are readily available to you through what you gain from this course, as well as some common
sense and research.

What is employment law?


Employment law can be viewed as a set of rules that relate to a particular relationship - in this
case, the employer-employee relationship. Some examples of these rules are that employers
must give reasonable notice when terminating without cause an implicit contract of employment
or must abide by the "right to refuse' provisions of the Occupational Health and Safety Act
(OHSA).

Where do we find employment law in


Canada?
There are two sources of employment law in Canada: statute law and common law. Statute
Law is legislation passed by government. It includes such laws as the Ontario Human Rights
Code (OHRC), the Employment Standards Act (ESA), and the Occupational Health and Safety
Act (OHSA). Employment laws are passed by either the federal or the provincial government,
with the vast majority of employment law being provincially based - i.e., applying to provincially
regulated employers. A statute takes the form of a written bill and is usually introduced by the
cabinet minister responsible for that subject matter. It passes three readings and becomes law.
The statute contains the main requirements of the law; however, the detailed rules for
implementation or administration of the statute will be in the regulations. For example, while
the Employment Standards Act specifies a minimum wage in Ontario, for most occupations the
actual dollar amount can be found in the regulations.

The second source of employment law is Common Law. This type of law is based on British
common law and is the most interesting and dynamic aspect of employment law because it
evolves and changes over time. The law is established by judges in court cases or decisions.
Judges make these decisions based on the precedent of previous cases; and of course, they can
set new precedent for future cases as well. Common Law is applied when there is no statute law
covering a particular area of the employer-employee relationship. It is interesting to note that
cases are first heard at lower level trial courts; and in each province a decision at the highest
court - the Court of Appeal - would bind all other courts in the province to that particular decision.
If the case proceeds to the Supreme Court of Canada, then its decision would bind all courts in
the country. In a later module, we will cover ways in which you can ensure you are up to date
with the latest information regarding changes to either Statute Law regulations or Common Law
decisions.

Statute law jurisdiction


Whenever lawyers and courts seek a point of law on a particular issue from a statute, they have
to determine how the division of authority between jurisdictions affects it. In Canada, this means
the division of authority between the federal and provincial governments, as detailed in
the Constitution Act. Because of the division of powers, the provinces have jurisdiction over most
matters related to employment, including labour relations and human rights. As a result, the
provinces have jurisdiction over 90% of the labour force with its boundaries including
manufacturing, retail, service, and construction. The federal government has jurisdiction over
the remaining 10% of the labour force, including those employed in nationally-oriented work such
as interprovincial transport, banking, and broadcasting. We will study a number of Ontario
employment statutes in this course, including the Employment Standards Act (ESA), the Ontario
Human Rights Code (OHRC), the Occupational Health and Safety Act (OHSA), the Workplace
Safety and Insurance Act (WSIA), and the Pay Equity Act (PE). The two main federal employment
statutes, similar in nature to their provincial counterparts, are the Canada Labour Act and
the Canadian Human Rights Act. But only 10% of workers are covered by these two acts.

The Canadian Charter of Rights and


Freedoms
A special statute in the Constitution Act that affects employment law in Canada is the Canadian
Charter of Rights and Freedoms, which sets out guaranteed rights and freedoms that can affect
the workplace, including the freedom of religion, association, and expression, and equality rights.
Other statutes must accord with the Charter's principles because it is a constitutional document.
That said, the Charter's rights apply only to government actions and conduct. For example, it
applies to government workers and organizations, the creation and passing legislation, and the
public sector. The Charter's rights don’t apply to individuals or private sector employers or
employees. Moreover, the Charter's rights are not absolute; there are options for limiting those
rights in section 1 and section 33 (the notwithstanding clause) of the Charter.
Of the rights in the Charter, the most important for employment law is the guarantee of equality.
Section 15 reads: ‘Every individual is equal before the law and has the right to equal protection
and equal benefit of the law without discrimination and in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’
Consider the issue of mandatory retirement at age 65. A Charter challenge ruled that this is age
discrimination. As a result of this ruling, retirement at 65 is no longer mandatory.

Another important part of the constitution is the ‘notwithstanding clause’ which allows provinces
to enact certain legislation that might violate the Charter. This hasn’t happened often as most
provinces follow the Charter as the ‘supreme law of the land’. However, Quebec has invoked the
notwithstanding clause to support French-language laws.

Have a look at the Charter, and review sections 1 and 33 in particular: Canadian Charter of Rights
and Freedoms

Enforcement of employment law


Employment law can be enforced through the following types of action:

1. a civil action or suit in the court system


2. a complaint to the appropriate administrative tribunal or commission, such as the Ontario
Human Rights Tribunal
3. various officers/officials appointed through a statute: for example, employment standards
officers who take complaints from employees and issue orders to employers to pay
money or provide other appropriate remedies.

PRACTICE

PRACTICE QUIZ FOR MODULE 1

After you have completed the assigned readings answer questions in Practice Quiz 1.

PRACTICE DISCUSSION QUESTION FOR MODULE 1

Review the statement below and post your response to the Discussion Board. Make sure you
provide constructive feedback to at least two other students’ postings.

Module 1 Discussion: As long as I have a good handle on the statutes that affect my
organization, then I know everything that's important in employment law. Discuss.

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