Workplace law is the legislation, common law, contracts and policies governing an employee and an employer. In other words, workplace law is the set of employment laws that apply specifically to employees and employers.
Note that Employment Law is different than Labour Law. Employment Law is the law of non-unionized workplaces. Labour law is the law of unionized workplaces. Workplaces governed by labour law are generally regulated by a collective bargaining agreement. On the other hand, non-unionized workplaces are governed by employment laws consisting of the following:
In Ontario, several different government statutes govern the workplace. The most important workplace statutes are the:
- Employment Standards Act. This law provides minimum standards for most employees working in Ontario. It sets out the rights and responsibilities of employees and employers in most Ontario workplaces.
- Human Rights Code. This law prohibits actions that discriminate against workers based on a protected ground in employment.
- Occupational Health and Safety Act. This law provides the rights and duties of all parties in the workplace concerning workplace safety.
In Ontario, a small percentage of workers in specific industries that are regulated by the federal government like banks and airlines are subject to different federal-based workplace law statutes, not the Ontario-based statutes listed above. These most important federal workplace statutes are:
- Canada Labour Code. This law provides minimum standards for employees working for federally regulated employers. The Canada Labour Code also provides the rights and duties of all federally regulated parties in the workplace concerning workplace safety.
- Canadian Human Rights Act. This law prohibits actions that discriminate against workers based on a protected ground in employment at a federally regulated workplace.
The government, through various bodies and tribunals, enforces employment legislation. For instance, employees can call the Ministry of Labour to make a complaint about unpaid overtime, and the Ministry of Labour can prosecute employers for violations.
Workplace Common Law
Common law means judge made law. It the law that is passed down from the courts in case law. So, when a lawyer cites a past case, not a statute, the lawyer is referring to common law. The common law is like a tree – it is always growing and expanding different branches. For example, “social media” is a new concept in the workplace in the last decade or so, but the common law has already started to develop “precedents” flushing out the rights, duties and obligations concerning social media at work.
Common law rights are implied into the employment relationship by default. For example, it is common law that an employee can be terminated for just cause. To that end, the common law will have a test for what is just cause for all circumstances.
Importantly, the common law is what gives employees in Ontario “reasonable notice” of termination. The entitlements to notice of termination and severance pay established by legislation are just minimums. The common law imposes greater obligations for notice and severance. Read more about common law notice here.
The common law also helps shape what happens when there is no legislation in place for a specific issue at work. For example, there is no legislation about a senior employee’s duty of confidentiality at work. Therefore, over time the common law developed to impose various duties on senior employees to keep confident secret company information. There are hundreds of other examples of the common law growing and expanding workplace laws over time. For instance, the common law developed the definition of “sexual harassment” at work recently.
The only way to learn the common law is by reading cases (or by reading law blogs like this one for a summary of new cases). Interestingly, it is possible to make new common law just by arguing in court there should be a law based on how you describe it. For example, in 2013, the Ontario Court of Appeal recognized a new common law tort called intrusion upon seclusion. Likewise, concepts like “class actions” were created by the common law and then refined by legislation. Monkhouse Law, which is Dutton Employment Law’s parent law firm, has now started to pioneer employment law class actions.
It is important to note that private employment lawyers like Dutton Employment Law enforce the common law, not the government. In this regard, the common law concept of “wrongful dismissal” is not something the government can enforce, prosecute or regulate; generally only a lawyer can sue for wrongful dismissal.
Employers give their employees a contract to define their duties, rates of pay and other obligations. More importantly, employers use employment contracts to contract out of the common law. For example, as described above, the common law gives employees by default the right to reasonable notice of termination. However, an employment contract can remove the right to reasonable notice and put in place some other formula for severance. Other times, instead of relying on the common law definition for some issue at work, for example the common law test for just cause, an employment contract can define just cause and list specific reasons for just cause termination rather than relying on the common law definition.
In summary, employment contracts are used to exchange common law rights with rights prescribed specifically by the employer. In this regard, there are countless ways to draft a contract to ensure the employer gets exactly what it wants and not have to rely on the common law.
Workplace policies are the codes of conduct an employer imposes on an employee. Workplace policies are not-binding like a contract, but they shape obligations an employee owes an employer and vice versa. For example, all employees are prohibited from harassing their colleagues under the common law and legislation, but anti-workplace harassment policies can provide clarity, definition and direction about the specifics regarding harassment at work.
An employer is free to impose an endless amount of policies on an employee at work. However, employers must ensure they follow their own policies. If an employee ever sues for some issue and cites the fact the employer failed to follow its own policy, the employee will have a better chance at success.
Jeff is an employment lawyer in Toronto. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.