Doing business in Canada requires understanding how Canadian employment law differs from US. For example: Are hourly employees in Canada required to be paid overtime after 40 hours of work in a week, just like in the US? Is there paternity leave in Canada? What notice must an employer give an employee before terminating them? In a recent BLR webinar, a team of three Canadian lawyers tackled these questions and more.
Brian P. Smeenk, Emilie Paquin-Holmested, and Bruce Grist lent their expertise to answer participant questions. Here are some of the questions and answers from that session.
Questions on Taking a Leave of Absence
Q. Is paternity leave in Canada paid or unpaid?
A.This would fall under employment insurance (like maternity leave or parental leave), but it wouldn’t be paid. It would require employer and employee contributions to employment insurance (like any other related item), but it wouldn’t be directly paid by the employer unless there’s a specific supplemental benefit plan in place.
Q. Is a pregnancy leave a mandatory paid leave by the company?
A.Allowing a pregnancy leave is mandatory to the extent allowed under the legislation, but it is only paid under employment insurance, not by the employer. Unless there’s been a specific provision in a collective agreement or in an individual contract, the payment for maternity leave or pregnancy leave comes from the government, which of course taxes the employers and others to get that money.
Questions on Termination Pay and Notice Periods
Q. Is final pay for resignations due on the last day of work or does it depend on the province? Or can we pay final wages on the next regularly-scheduled pay period?
A.Under the British Columbia Employment Standards Act, it depends whether the person has quit or has been terminated. If they have been terminated, the obligation is to pay all wages due within 48 hours. If the person has quit, the obligation is to pay all wages due within 7 days.
Having said that, so long as the employer acts reasonably in providing any amounts owed, the practical fact is that if you don’t do it in time not much will happen as long as you do it in a reasonable amount of time. The mandatory time frame differs from province to province and at the federal level. However, they’re all relatively short.
Q. Can you elaborate on what you mean in terms of termination notice and 1 to 8 weeks of service?
A.Each provincial employment standards act will provide for a minimum termination notice required. The length of notice required depends on how many years of service the employee has, and this length will vary between 1 and 8 weeks. However, the minimum standard might not be sufficient when you apply common-law principles. Courts will establish what they consider to be reasonable termination notice, taking into account the age of the employee, their position, years of service, and salary, for example.
Q. How does reasonable notice of termination apply to the restaurant industry?
A.Generally it’s the same as any other occupational classification except some positions are recognized as requiring less notice in common law than others. So, if you are a server in the restaurant industry, you’re not going to get much more notice than what the employment standards minimum provides unless you’ve been with that employer for 25 to 30 years, which is not typically the circumstance for people who work in the restaurant industry.
An exception might be if you’re in a significant role, such as a head chef. That role might get more notice. Courts will look at the nature of the position that you hold and if you’re an unskilled laborer you get very little notice. In a highly-skilled area with few jobs, you’ll get more notice for the same length of service.
A rule of thumb is to remember that tribunals will often try to see how much time it would take for someone in that position, with that salary, who’s that age, and who has those responsibilities to find a similar position. The higher your position and the higher salary and the older you are, the more time it will take, therefore you’ll get closer to the 24-month period. If you’re a young, unskilled laborer you can find a similar job quite quickly, and that’s when the minimum noted in the employment standards will apply.
For more information on Canadian employment laws, order the webinar recording of “Operating in Canada in 2013: What You Must Know Now Regarding Employment Laws North of the Border.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Brian P. Smeenk is a Toronto partner in Fasken Martineau‘s Labour, Employment & Human Rights Group. He is also editor-in-chief of HR Hero’s Northern Exposure: Employment Law for U.S. Companies with Operations in Canada blog and a member of the Employers Counsel Network.
Emilie Paquin-Holmested is a member of Fasken Martineau‘s Labour, Employment & Human Rights Group in Montreal. Her practice focuses mainly on labour relations, employment law, human rights law and administrative law.
Bruce R. Grist is a partner in the Vancouver office of Fasken Martineau‘s Labour, Employment & Human Rights Group. He provides legal advice on all matters related to employment in both the private and public sectors including federally and provincially regulated employers.