CANADA Law and Practice Contributed by: Christopher Pigott, Rachel Younan, Jacob Wagner and Felisha Jagiah, Fasken
able if the employer provides the employee with more than their minimum entitlement under employment standards legislation. As individuals cannot release their statutory rights, it is important that releases are carefully drafted. 7.5 Protected Categories of Employee Under the criminal laws applicable across all Canadi - an jurisdictions, it is a criminal offence for an employer to discipline, demote, terminate or adversely affect employment with the intent to: • compel an employee to abstain from providing information to law enforcement authorities con - cerning an offence that the employee believes has been or is being committed by the employer; or • retaliate against an employee for making such a disclosure. Other specific “whistle-blower” legislation has been introduced to protect public sector employees and those who report corporate breaches of securities laws. Reprisals Various laws prohibit employer “reprisals” against an employee for specific reasons, including: • employee requests for employer compliance with legal obligations; • the exercise of legal rights in connection with one’s employment; • the making of complaints to an employer about workplace issues; or • the reporting of unlawful conduct to law enforce - ment officials. By way of example, workplace health and safety leg - islation prohibits employers from dismissing or dis - ciplining, imposing a penalty upon, or intimidating or coercing an employee because the employee has raised a health and safety concern. Similarly, human rights legislation prohibits employ - ers from reprisals against an employee for mak - ing a human rights complaint, as discussed in 8.2 Anti-Discrimination . Many large employers in Can - ada have established confidential hotlines or similar
mechanisms that allow an employee to make internal complaints. Employees may also have the option of directing their complaint to a responsible government authority within the particular jurisdiction – many of which have online mechanisms in place to receive complaints. Furthermore, legislation governing the unionised employment relationship generally protects employ - ees against reprisals for exercising legal rights in con - nection with a union and collective bargaining. Union officers or representatives (union stewards) enjoy enhanced protections in this respect. When acting in their official capacity, such repre - sentatives are often provided more leeway to refuse to follow management instructions and more leeway to openly oppose management in the course of their duties. However, union representatives are not permit - ted to make false or malicious statements, or engage in harassing or violent behaviour towards manage - ment or other workplace parties. Workplace Harassment The Workplace Harassment and Violence Prevention Regulations under the Canada Labour Code require federally regulated employers to develop a preven - tion policy with regard to workplace violence and harassment, including sexual harassment and sexual violence. This includes an assessment of risk fac - tors, training that will be provided to employees, and resolution processes for employees who witness or experience workplace harassment or violence, among various other requirements. Many provinces require similar workplace policies in accordance with their respective occupational health and safety legislation. In Quebec, employers must protect employees from psychological harassment from “any person” and the legislation specifically outlines what is to be included in workplace policies to prevent and manage situa - tions of psychological harassment and sexual vio - lence. The legislation also grants regulatory power to determine measures to prevent or put a stop to sexual violence and requires mandatory training on sexual violence for arbitrators to whom grievances concern - ing psychological harassment are referred.
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