It is an outcome that is anchored in parliamentary intention, statutory language, arbitral jurisprudence, and labour relations practice. To decide otherwise would fundamentally undermine Parliament’s remedial purpose.

– Wilson v Atomic Energy of Canada Ltd., 2016 SCC 29 at para 69

Photo from Pixabay

Employment security is something every worker is concerned about, especially during a pandemic. It is generally accepted that unionized workers enjoy more security than their non-unionized counterparts do. And public sector workers are better protected than private sector workers are.

The federal government regulates only about 6% of all Canadian employees. They may be directly working for the federal government or in one of the federally regulated industries such as telecommunications, shipping, aeronautics, railroads, banking and atomic energy.

Most of these federally regulated employees are unionized. But some workers in banks, telecommunications companies, airlines, Crown corporations and other federally controlled employers are non-unionized. In 1978, Parliament amended Part III of the Canada Labour Code to add ss. 240 to 246 about “unjust dismissal.” These amendments granted unionized federal workers the right to written reasons for dismissal and to complain to an adjudicator if they believe they have been dismissed without just cause. This is an expansion of their collective agreement rights. An adjudicator finding the dismissal unjust can order the worker reinstated or compensated.

This article describes how the Supreme Court of Canada recently decided that these Canada Labour Code extended protections from 1978 apply to non-unionized workers as well. Federally regulated employees without unions and collective agreements share unionized employees’ statutory rights.

Wilson v Atomic Energy of Canada Ltd

In 2005, Joseph Wilson began work as a Senior Buyer/Order Administrator for Atomic Energy Canada Limited (AECL), a federally regulated Crown corporation. He was dismissed after more than four years of employment despite having a clean disciplinary record. He claimed he was dismissed because he blew the whistle on improper procurement practices at the company. Mr. Wilson’s employer dismissed him without cause and gave him a large severance package. The employer was of the view that it could terminate Wilson at any time without cause since he “was provided a generous severance package that well exceeded the statutory requirements” and was not protected by a collective agreement.

The unjust dismissal scheme in the Canada Labour Code ensures federal non-unionized employees cannot be dismissed without cause.The adjudicator ruled that AECL could not dismiss Wilson with severance payments alone.

In the Supreme Court of Canada

Six of the Supreme Court judges concluded that the adjudicator was reasonable (indeed, correct) in his interpretation of the 1978 Code amendments. They said the unfair dismissal process intended to provide these workers with a method of challenging their dismissals, because battling their employers in courts was very costly and burdensome.

They referred to the Parliamentary intent expressed by the then Minister of Labour Munro when he originally introduced the amendments. Munro said the provisions would provide unorganized workers with some of the “minimum standards” in collective agreements given to organized workers. He added:

The intent of this provision is to provide employees not represented by a union, including managers and professionals, with the right to appeal against arbitrary dismissal – protection the government believes to be a fundamental right of workers and already a part of all collective agreements.

The three dissenting judges noted: “a dismissal is not per se unjust, so long as adequate notice is provided.” They viewed the majority interpretation as an “absurdity,” ensuring “two identical classes” of employees [non-unionized public and private sector] will be handled differently “based on an arbitrary or irrational distinction.” They said Parliament did not mean to change the relationship between these employees and employers “simply by adding the unjust dismissal procedure to the Code.” There is no definition of an “unjust dismissal” in the Code.

In 1978, Parliament amended Part III of the Canada Labour Code to add ss. 240 to 246 about “unjust dismissal.”The dissenting judges referred to provincial schemes that answer this question and “they have done so expressly . . . had Parliament intended to prohibit without cause dismissals, it would have done so by using such clear and unambiguous language.”

Conclusion

The unjust dismissal scheme in the Canada Labour Code ensures federal non-unionized employees cannot be dismissed without cause. Severance payments are not an option for federally regulated employers to justify terminating employees without cause. Non-unionized workers – unprotected by collective agreements – enjoy recourse and protections comparable to unionized employees.

Federally regulated employers must show good cause to dismiss employees. These employees may also have the right to progressive discipline before being dismissed.

Under section 240(1), this protection is available only to those who have worked at least 12 consecutive months and if they are dismissed for reasons other than lack of work or restructuring.

The case represents a big win for employee rights in Canada and a challenge for federal employers who seek to reduce their workforces. It continues a recent trend of the Supreme Court strengthening labour rights of workers to unionize and strike.

Whitford was not given sufficiently clear and detailed warnings about his misconduct, was mislead [sic] by approvals granting him leave, and was not told that failure to prepare a return-to-work plan could result in his dismissal. Further, he was not caught drinking on the job, other than the one occasion when he made no attempt to hide his condition, and he did not jeopardize the safety of others.

– Whitford v Agrium Inc, 2006 ABQB 726 (at para 50)

Photo from Pexels

We scoured judicial and arbitral decisions across the country and found another instance of egregious employee behaviour that a Canadian court has excused. The employer fired the employee, but the judge disagreed and ordered the employer to pay damages for wrongful dismissal and court costs.

This is the latest installment of another head-scratching outcome in a dismissal-for-cause case. In reading this, one is left asking, “What was that judge thinking?”

The Absentee Alcoholic

Agrium hired Mr. Whitford out of high school, and he worked his way up to shift supervisor. In 2000, he began treatment for depression, likely induced by family issues including the death of his mother and separation from his wife. In 2002, he accepted a salaried position at Agrium, after which his supervisors began noticing an absentee problem. Later that year, Mr. Whitford accepted that he had a problem with alcohol and entered a rehabilitation program.

His supervisor supported his rehabilitation efforts. Agrium continued to pay his full salary while he attended the program and modified his responsibilities at work to reduce his stress upon return. Agrium expected Mr. Whitford to return to work in December, but instead he took another leave of absence to attend counselling. His employer expected his return to work the following February.

After completing the second program, Mr. Whitford began drinking again and exhibited “dismal attendance” at work. He would regularly check-in with his supervisor to inform him that he was not going to attend work because his doctor advised him to take more time off, he was dealing with divorce matters or he needed to fix his car. Throughout this process, a medical consultant from Agrium’s occupational health department tried to help him develop a back-to-work plan.

Employers must give express and clear warnings to employees about their behaviours and give opportunities to improve.On March 19, Agrium gave Mr. Whitford a letter stating it wanted to help him get back to work. However, if he was not able to improve this attendance, he would be dismissed. His absences continued.

On April 30, after Mr. Whitford had been absent without leave for up to six days, his supervisor called him to ask if he had a back-to-work plan. Mr. Whitford replied “no”. In the first four months of the year, he had attended work for only 21 days. Agrium terminated his employment on May 1 on the basis of absenteeism without leave and his failure to develop a back-to-work plan.

Mr. Whitford sued Agrium for wrongful dismissal.

Conclusion

The Alberta Court of Queen’s Bench took more than six months to decide this case. It ruled the dismissal of Mr. Whitford from his employment was unjustified. Even though Mr. Whitford had not reasonably mitigated his losses, the judge awarded him 12 months of pay in lieu of notice. The judge said Agrium did not prove Mr. Whitford’s alcoholism impaired his ability to fulfill his workplace duties when considered against his otherwise good 22½-year employment record. As well, the employer had only caught Mr. Whitford drinking on the job once.

The judge said Agrium should also have issued more specific warnings to Mr. Whitford. Employers must give express and clear warnings to employees about their behaviours and give opportunities to improve. The judge in Mr. Whitford’s case said that “a single warning is generally not sufficient to give an employee an opportunity to improve, or to inform an employee that he or she is failing to meet the standards expected.”

The judge said Agrium did not prove Mr. Whitford’s alcoholism impaired his ability to fulfill his workplace duties when considered against his otherwise good 22½-year employment record.On the other hand, it is unreasonable for any worker to assume they can be paid for full time employment without coming to work. Why must employers repeatedly issue “express and clear warnings” about the essence of a job?

Early in the litigation, Mr. Whitford made a formal offer to settle the case for $94,000, payable by Agrium. At trial years later, the court awarded Mr. Whitford $81,834.78 plus interest and costs. The judge, finding Agrium should have accepted Mr. Whitford’s settlement offer, ordered Agrium to pay double the amount of costs to him.

The costs issue only – not the merits of the dismissal itself – was successfully appealed to the Alberta Court of Appeal. In the end, this case cost Agrium well over $100,000 in direct costs and major disruption.

This case illustrates the legal and practical complexities facing employers who seek to manage workers with addictions and persistent absenteeism from the workplace. Canadian judges will point to other appalling behaviours in which employees could possibly have (but did not indulge) as a straw man device to excuse the intolerable, discomfiting behaviours for which employees are actually responsible.

Photo from Pixabay

We hear a lot today about people following their conscience. Conscience is more than mere preferences and choices. It is about one’s values, spiritual worldview and visceral sense of right and wrong. Few employees want to compromise on their deepest conscientious beliefs for their jobs. These beliefs often arise from religious convictions but are technically independent of religion. How is one’s conscience protected at work?

Constitutional Freedom but Not a Regulatory Human Right

To follow one’s conscience is a fundamental freedom on par with equality and free speech in the Charter of Rights. That means that government employers at all levels throughout Canada must accommodate their employees’ consciences.

However, most people do not work for a government entity. They work in the private sector which is governed by provincial and territorial law. The human rights legislation at this level does not require employers to preserve employees’ freedoms of conscience. The only human right at this private sector level of employment is essentially equality and freedom from discrimination on enumerated grounds (such as race, gender, disability, age, etc.) unless there is a bona fide occupational requirement to discriminate on any of those grounds.

Even in the private sector, one also finds some inherent protection for conscience. If, for example, a worker is asked to do something illegal or unreasonably dangerous, the worker may refuse and will be protected by both regulation and the common law. No employer, when challenged in a legal proceeding, will get away with disciplining workers in such scenarios.

Conscientious Refusal to Perform Legal Acts

So how should we address this conscience issue? The correct approach is accommodation.The more complicated question is when one can refuse to do something that is legal but still against one’s deeply held convictions. A current example involves medical professionals such as nurses, physicians and pharmacists who may personally object to counselling or assisting in abortions, gender conversions or medically-assisted deaths. Since the government regulates these professions, the Charter freedom of conscience is in play.

Last year, in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, the Ontario Court of Appeal considered physicians’ policies in the province that allow doctors to refuse to perform services for conscientious reasons but state the doctor must provide all patients with an “effective referral”. The Court ruled the policy struck a proper constitutional balance and was enforceable. The policies define an effective referral as “a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency.” Obviously, those physicians and other medical professionals with similar directives think this duty is too great a violation of their consciences. They risk professional discipline if they do not obey. Or they could quit the profession.

Alberta’s Bill 207 would have given a small number of conscience-bound health care providers the right to decline work that genuinely conflicts with their deepest personal beliefs. The matter is controversial, and the private bill did not get enough support to pass. It died when the last legislative session ended.

The private sector equivalent has played out with cake decorators or wedding photographers who conscientiously refuse to participate in same sex weddings. Waxing salons have been recently added to the list of refusers after Jessica Yaniv famously targeted them. B.C.’s Human Rights Commission tossed out her complaints on the grounds that she attempted to use the equality provisions of B.C.’s Human Rights Code as a sword “for improper purposes.”

The Collision of Equality and Conscience Rights

What is solved by legally forcing competent conscience-bound medical practitioners to do something that they consider fundamentally wrong – to the point of driving them out of their profession? Or forcing some bakers and photographers out of business?

The more complicated question is when one can refuse to do something that is legal but still against one’s deeply held convictions.No same sex couple today will remain unwed due to a lack of bakers and photographers willing to serve them. With a quick internet search, one can find willing medical providers for abortion, gender transition and medically-assisted death. There are referral agencies to assist. Equality activists claim that people will be harmed or die because one doctor might refuse to refer a patient to an abortion, a gender conversion or a medically-assisted death. However, these procedures are conducted by specialists who are very easy to identify and locate today. There is not a single instance in Alberta history of anyone going without care as the result of the exercise of conscience by any health care provider. Every same sex couple can find a willing baker or photographer.

Opponents of Bill 207 framed the issue in terms of hypothetical harm to them and their equal outcomes. At the same time, they demand blanket suppression of the providers’ conscience, even if it is an equal constitutional right.

When we hasten to strengthen equality rights at all costs, we sacrifice other co-equal Charter rights in the process. Equality activists seek to effectively amend the constitution to subordinate and repeal freedom of conscience. In the recent debate on Bill 207, opponents did not seek to balance conscience rights. They preferred rather to assert their own rights and deny the rights of others.

The Solution: Accommodation

So how should we address this conscience issue? The correct approach is accommodation. Patients need or want the medical procedure but they do not need every medical professional to serve them. Both patient needs and professionals’ conscientious beliefs can be satisfied. Abortion providers will not object to performing abortions. Why force the conscience of another medical professional to make a referral if abortion providers are readily identifiable by an internet search or phone call? If a professional is reasonably available to perform the procedure – which is virtually always the case – patients should not compel other professionals to act against their conscience. Where service delivery is unaffected in practice, professions must not be closed to conscience-convicted Canadians.

To follow one’s conscience is a fundamental freedom on par with equality and free speech in the Charter of Rights.An example of sensible accommodation is the licensed marriage commissioner program in several provinces. A couple may choose a civil wedding or a religious wedding, or both. The two forms are equally legal. There are more than 250 licensed Marriage Commissioners in Alberta who advertise their services, and there are also many religious officiants. Everyone is accommodated and no religious or secular wedding officiant is required to act contrary to one’s conscience. This same accommodation of conscience and equality can easily be achieved in all professions.

Conclusion

We would never deny equality to anyone on the basis that it might offend another’s conscience. Likewise we should not destroy one’s conscience to achieve equality. Conscientious objection has long been widely recognized around the world. Yet our constitutional conscience rights are far too readily discarded.

Although Bill 207 is gone for now, the human conscience has not vanished. With no legislation to balance the rights of equality and conscience, cases will crowd Alberta courts for adjudication under the Charter. These equal, co-existent rights must be reconciled through accommodation.

While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or reinforce the disadvantage of certain groups and individuals by denying them the rights freely accorded to others.

– Andrews v Law Society of British Columbia, [1989] 1 SCR 143

Introduction

In the recent federal election, a party leader campaigning to be prime minister was criticized for holding dual citizenship. He was criticized, though not disqualified. The minimum requirements to run in a federal election under the Canada Elections Act are 18 years of age and Canadian citizenship (sections 3 and 65).

Andrews was the leading case during the first decade of Charter section 15 jurisprudence.Millions of people living and working in Canada are permanent residents, not citizens. Permanent residents enjoy virtually the same rights and responsibilities as Canadian citizens, including the right to live, work and study anywhere in the country. They are entitled to the same social benefits that citizens receive, including public pensions and universal health care, and they can sponsor relatives to Canada.

Permanent residents may apply for Canadian citizenship – which gives them the right to vote and run in elections – after living in Canada for three years out of the five years preceding their application. Many permanent residents choose to never become citizens.

Until 1989, provincial law societies required lawyers to be citizens. This article is about a permanent resident who challenged that requirement under the Canadian Charter of Rights and Freedoms.

Role of Lawyer

Lawyers are trained and qualified to do many things. They are experts in substantive and procedural law and skilled in legal procedures. They advise and represent others across the total spectrum of legal matters where financial, reputational and liberty stakes for the client are the highest. They occupy one of the most prominent esteemed socio-economic professional perches in society.

Lawyers are bound to exacting character, educational, professional and conduct standards. They must submit to continuing education and be insured for their errors. Being a lawyer is not a right, but a privilege.

Must they also be Canadian citizens?

Photo from Pixabay

Mark David Andrews

Andrews was a British citizen and a permanent resident in Canada. With a British law degree, he tried to become a lawyer in British Columbia. He met all requirements for admission to the British Columbia bar except one. Section 42 of B.C.’s Barristers and Solicitors Act limited membership to Canadian citizens.

Andrews sued the Law Society of British Columbia, arguing the citizenship requirement violated his equality right under the Charter:

15 (1)   Every individual is equal before and under the law and has the right to the 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.

The Court’s Decision

This was the first major Charter equality case and six judges of the Supreme Court of Canada took 16 months to decide it. A majority agreed with Andrews and struck out the citizenship requirement for lawyers.

1. Two-Step Approach

The Charter requires a court to determine whether a law created an inequality on one of the enumerated grounds – such as race, religion or disability – or on an analogous ground which is similar and related to an enumerated ground. The person alleging the inequality must prove actual differential treatment based on an enumerated or analogous prohibited ground which creates a disadvantage.

The second step of the analysis determines whether the infringement can be “demonstrably justified in a free and democratic society” under section 1 of the Charter. The state must justify the infringement.

2. Judicial Analysis

The judges disagreed about whether this discrimination was sufficiently justified. The B.C. government and the Law Society argued that the role of lawyers begets a special commitment to the community which citizenship embraces. They said practical familiarity with the country and its customs is needed. Citizenship evinces a real attachment and connection to Canada.

Andrews sued the Law Society of British Columbia, arguing the citizenship requirement violated his equality right under the Charter …Moreover, they said lawyers should be citizens as they play a role in Canadian governance since they are officers of the court and are entrusted with significant private and public powers. They are uniquely involved in the processes or structure of government. The government argued that certain state activities should be confined – for both symbolic and practical reasons – to those who are full members of our political society: citizens.

The majority four judges disagreed. They said citizenship itself does not make for better lawyers, and lawyers are not really part of public governance anyway. They found that there was no sufficiently reasonable connection between the citizenship requirement and working as a lawyer. Accordingly, the provincial government and Law Society failed to justify the discriminatory nature of the citizenship requirement and it was struck out.

Where is Andrews Now?

Andrews became a citizen before his case was even argued in the Supreme Court of Canada. He is a litigation partner now in a large national law firm in British Columbia. After judgment in his favour in the B.C. Court of Appeal, Andrews became a lawyer on June 13, 1986.

Conclusion

Foreign-trained professionals encounter tremendous obstacles to having their education and skills transferred to, and being accredited, in Canada. This case does not help them much because mere permanent residency is not their hurdle.

Until 1989, provincial law societies required lawyers to be citizens.Likewise, if citizenship is not required to become a lawyer or a judge in Canada on the basis that it does not ensure greater commitment or practical understanding of the society, should it be an issue for those running in elections, or even for voting? Why should it matter today if a politician holds dual citizenship?

Andrews was the leading case during the first decade of Charter section 15 jurisprudence. The Supreme Court of Canada has stated that section 15 equality rights are the most expansive and challenging rights in the Charter. The next Employment column will offer a critique of this Andrews decision.

Photo from Pixabay

In Canada, every non-unionized employee has a contractual relationship with their employer. What does that contract look like?

Employment contracts may be written or oral, or both. When you sign and return a letter offering you a job, the terms of the letter are the written elements of the contract. That letter usually “incorporates by reference” employer manuals and policies into the contract.

Other people are hired – and agree to terms – on the telephone or orally in an in-person interview. You can agree to your job title and responsibilities, rate of pay, benefits, supervision and starting date in a conversation with your employer.

Characteristic of written and oral employment terms is that these matters are expressed. These terms are identified, highlighted and communicated. The attention of both parties is specifically drawn to them.

As it turns out, there are many things the parties do not express, or even think about. Still, the law will imply these unspoken and unwritten terms into an employment contract. These matters may be so obvious that both the employer and employee just assume they are part of the job (“implied in fact”). Alternatively, they are imposed by legislation and are not negotiable in any event (“implied in law”).

Since an employer and employee do not discuss or agree upon implied terms, it is important to be aware of them. Implied terms can form the basis of wrongful dismissal lawsuits. This article describes the two different sources and some examples of implied terms in employment contracts.

Terms Implied-in-Fact

Terms will only be implied if they are necessary to make sense of the employment contract (business efficacy test). The origin of this test can be traced back to the 1889 English contract case called The Moorcock which established that judges can read in terms that give business efficacy to the contract. For example, an employer and employee usually agree on a salary but they usually do not say it is in Canadian dollars. The local currency would be implied.

No one can contract out of minimum employment standards.These terms are the details that were not expressed between employer and employee but something they both likely intended to agree to. To imply an employment term by fact, a judge must be satisfied the employee and employer would have agreed to the same terms if they had discussed these using context (officious bystander test). The test asks: if an uninvolved third party had suggested including the particular term in the employment contract while it was still being negotiated, how would the employer and employee have responded? If their answer was “why, of course … that goes without saying!”, then the court will imply the term into the contract. It is clear that both the employer and employee assumed the term already existed.

Examples of employers’ implied obligations:

• Permit employees to report to work
• Treat employees with decency, respect and dignity
• Provide a reasonably safe work environment
• Compensate employees for work performed
• Reimburse employees for reasonable and authorized expenses incurred on behalf of the employer
• Provide reasonable notice of termination of work
• Make sure employees are properly trained and equipped

Examples of employees’ implied obligations:

• Obey lawful orders of the employer
• Cooperate in advancing the employer’s commercial interests
• Protect the employer’s confidential information
• Do not be late or absent from work without an excuse
• Do not compete against the employer
• Perform duties completely, competently and safely
• Do not harass others
• No drinking or using drugs at work
• Give reasonable notice of resignation

Well-established historical practices in the workplace may also be implied in new employment contracts. For example, if it is well known that a job requires frequent travelling, location transfers or work outside of regular business hours, these obligations may be implied in the employment contract.

Implied terms, as “default terms”, can be changed or excluded by inserting clear express terms. Implied terms only fill in gaps where necessary to give effect to the employment contract.

Terms Implied-in-Law

Terms implied-in-law are legal rights and obligations that are set out in legislation. The primary source of these terms is minimum employment standards legislation which says that these minimum terms form part of every individual employment contract.

The context does not matter nor does what the parties intended. The employer and employee may actually express other terms, but these statutory terms will override them. No one can contract out of minimum employment standards. That is because the government imposes these implied terms as a matter of public policy.

Employment contracts may be written or oral, or both.These terms implied by law assume employees occupy a weaker position in the employment relationship. The law sets minimum thresholds that employers must meet, such as minimum wage, notice of termination, overtime pay, employment of children, work breaks, leaves, maximum hours of work, etc. Everyone working in a human resources role must know the minimum standards that are implied into each employment contract.

Conclusion

Unionized employees are governed by comprehensive written collective agreements that set out the rights and obligations of the employer and employee. On the other hand, non-unionized workers, which make up about 70% of Canada’s workforce, are subject to individual employment contracts. These individual employment contacts can have many different forms and attract more legal protection.

Most people incorrectly assume the oral or written agreement is the complete employment contract. However, rights and obligations are usually both expressed and implied. The individual employment contract has more implied terms than any other type of contract. Employees and employers should know the unexpressed and un-negotiated rights and obligations that apply to them.

Introduction

In 1981, when I was a student working for the summer in London, England, every two weeks I would walk over to another building and join a queue to collect my pay packet. In the little cardboard pouch, I found a very narrow strip of paper of numbers that explained how my earnings and deductions were calculated. My employer paid the net salary in bills and coins, all in the packet. There were no direct deposits in those days or cheques to take to the bank, much less payday cheque-cashing shops.

I figured that employers paid wages in cash because that was the most liquid form of money. I also figured there must have been a legal obligation on employers to do so because workers, at that time, could not easily access earnings that were not in cash.

This sort of rule is one example of workers’ rights in a universe of “employment standards” under provincial laws (such as the Employment Standards Code in Alberta). I cannot remember the basic cash pouch being a legal requirement in Alberta, although they are permitted. Nevertheless, we have several other rules in effect today around the payment of wages.

The topic of this column is the requirements on Alberta employers when paying earnings to workers. Other provinces and territories in Canada have very similar rules. Workers should review the employment standards legislation in effect where they work to learn the details of how their earnings must be paid.

General Provisions

It is important to remember that the workers’ accrued earnings belong to the workers and not to the employer.Employers must set out pay periods for calculating wages, which cannot be longer than one month. Wages, overtime and holiday pay earned must be paid within 10 days after the end of each pay period.

An employer must pay at least the minimum wage – currently $15 per hour ($13 for workers under 18 who are in school). Workers paid by commission or other incentive must also be paid the minimum wage in each pay period.

Employers must pay workers for a minimum of 3 hours of work. Meal periods are not counted in this. There are a few exceptions to the minimum 3 hour work period, including:

• school bus drivers;
• young workers teaching swimming lessons or lifeguarding part-time at municipal recreation facilities;
• workers on a movie set or other “artistic endeavour”;
• jobs up to 2 hours on school days.

These employees must be paid minimum wage for at least 2 hours each work period.

When either party terminates the employment with notice, employers must pay the employees’ earnings no later than 3 days after the last day of work. If the termination by either party is for cause, or if the worker quit without giving the required notice, Alberta employers have 10 days to pay the earnings.

Employers must pay earnings in Canadian currency. Payment can be made in cash or by cheque, bill of exchange or order to pay (payable on demand from an authorized financial institution). Alternatively, employers and employees may agree to direct deposits in an authorized financial institution at the employees’ direction.

When reducing an employee’s wages, employers must give the employee notice of the reduction before the start of the pay period in which the reduction is to take effect. If this notice is not given, the reduction is not valid.

Employer May Not Make Some Deductions From Pay

Employers cannot deduct, set off against or claim from the earnings of an employee any sum of money unless the law permits. Deductions allowed by law include:

• anything deductible under legislation, such as garnishees, judgments or court orders (e.g., child support payments);
• withholdings for income taxes, Canada Pension Plan and Employment Insurance;
• union dues set out in a collective agreement binding on the employee; or
• anything the employee has personally approved, such as the repayment of a loan or wage advance from the employer.

However, a collective agreement or a written approval by an employee can never permit deductions from earnings for:

• faulty work, including any act or omission by the employee that results in a loss to the employer;
• damage or breakage caused by the employee;
• innocent mistakes;
• cash shortages or other loss of property if, as is very common, someone other than the employee also had access to the cash or property. For example, if more than one person has access to the cash register, an employer cannot hold only one employee responsible for shortages;
• cash shortages due to a failure to collect all or any part of the price paid by a purchaser. Simply, workers cannot be used as guarantors of the business’ receivables; or
• any costs associated with providing, using, repairing or cleaning uniforms or other apparel that the employer requires the employee to wear at work.

Employers cannot deduct, set off against or claim from the earnings of an employee any sum of money unless the law permits.If an employer provides board or lodging, or both, to a minimum wage employee, the deductions cannot exceed $3.35 for a single meal and $4.41 per day for lodging. Employers cannot deduct a meal not consumed by an employee from the minimum wage.

Advances on wages and inadvertent over-payments of wages can be recovered by employers from employees’ earnings.

Conclusion

It is important to remember that the workers’ accrued earnings belong to the workers and not to the employer. Employers might be tempted to take advantage of their superior positional and economic power over the workers and help themselves to some of the workers’ earnings. Employment standards legislation prohibits that. Employers who try to do this may be slapped with administrative penalties or subject to prosecution and fines.

The cash pay period pouch may be gone but other detailed rules remain in place to prevent employers from ‘playing with’ or taking workers’ earnings.