A Brief Overview of Canadian Employment and Labour Law

Transcription

1 Financial institutions Energy Infrastructure, mining and commodities Transport Technology and innovation Life sciences and healthcare A Brief Overview of Canadian Employment and Labour Law

2 A Brief Overview of Canadian Employment and Labour Law 1 1. Overview of Canada The Canadian Federal System and Sources of Employment and Labour Law Labour Standards Individual Contracts of Employment (non-unionized employees) Dismissal Labour Relations (unionized employees) Health and Safety and Workers Compensation... 7 a) Health and safety... 7 b) Workers compensation Human Rights... 8 a) Discrimination... 8 b) Drug and alcohol testing... 9 c) Remedies Quebec Privacy Legislation Special thanks to Ms. Lady Africa Sheppard, Articling student at Norton Rose Fulbright Canada who made significant contributions in the preparation of this paper. 1

3 1. Overview of Canada Some basic statistics: Population: 35,540,400 (2014) Source: Statistics Canada GDP: billion USD at current prices (Q1 2015) Source: Statistics Canada Inflation: Bank of Canada estimates the underlying trend in inflation is about 1.5% to 1.7% Source: Bank of Canada Monetary Policy Report July 2015) Labour Force: 19,251,300 (June 2015) Source: Statistics Canada (out of a population 15 years old and over of 29,266,500) Employment Rate: 61.3% (June 2015) Source: Statistics Canada Unemployment Rate: 6.8% (June 2015) Source: Statistics Canada Employment by industry (2013): 1) Trade (2,729,300); 2) Health care and social assistance (2,219,700); 3) Manufacturing (1,711,000); 4) Construction, (1,371,500); 5) Professional, scientific and technical services (1,333,300); 6) Educational services (1,236,900); 7) Accommodation and food services (1,207,500); 8) Finance, insurance, real estate and leasing (1,083,800); 9) Public administration (910,000); 10) Transportation and warehousing (896,800); 11) Information, culture and recreation (757,200); 12) Other services (795,100); 13) Business, building and other support services (734,800); 14) forestry, fishing, mining, quarrying, oil and gas, (372,600); 15) Agriculture (305,100); 16) Utilities (136,900) Source: Statistics Canada Public Sector Employees: 3,608,700 (June 2015) Source: Statistics Canada Private Sector Employees: 11,611,000 (June 2015) Source: Statistics Canada Unionization Rates Canada-wide: 29.9% (2012) a decline from 37.6% in 1981; Newfoundland (38%) and Québec (37%) have the highest rates while Alberta (22%) has the lowest. Source: Statistics Canada Unionization Rate Public Sector: 71.4% (2012) Source: Statistics Canada Unionization Rate Private Sector: 16.4% (2012) Source: Statistics Canada 2. The Canadian Federal System and Sources of Employment and Labour Law Canada is a federation in which legislative powers are divided between the federal government and the governments of the ten provinces and three territories in accordance with the constitution. Most labour relations fall under the provinces power to regulate property and civil rights, local works and undertakings and generally all matters of a merely local or private nature in the province. The federal government only has residual powers over specific industries that offer interprovincial, national or international services, as well as over transportation, radio and television broadcasting, and banks. The territories also fall under federal jurisdiction and administration. Labour boards must often determine the constitutional status of an undertaking. In order to do so, they examine whether the activities carried out by the company are an integral and essential part of an undertaking in one of the aforementioned industries. Across all jurisdictions, employment and labour law is governed by contract law and various types of statutes. Given Canada s British heritage, private law is predominantly governed by common law principles, except in the province of Quebec, which, due to its French roots, mixes civil law and common law principles. In addition, all jurisdictions have enacted statutes touching on specific issues such as labour standards, labour relations, occupational health and safety, human rights, personal information protection and pay equity. For example, the various labour relations acts are similar to the U.S. National Labor Relations Act, and human rights statutes are similar to Title VII of the Civil Rights Act of

4 3. Labour Standards All Canadian jurisdictions have labour standards legislation that sets out the minimum standards employers must follow, which are generally more advantageous than those in the U.S. 2 This does not preclude them from offering more to employees by virtue of individual contracts or collective agreements. The following is a summary of many of the applicable standards and the range of treatment required across all jurisdictions: Minimum wage: varies from $10.20 an hour in Alberta and Saskatchewan to $12.50 in the Northwest Territories. The Canadian average is $ Minimum age of work: varies from 14 to 17 years old, though there can be differences for specific jobs, industries or situations. Hours of work: the standard work week varies from 40 to 48 hours, while the maximum work week varies from 44 hours to no limit at all. Employees must also have a mandatory rest period which is generally at least one day a week. Overtime: hours worked in excess of standard hours are usually paid at time and half. Vacations: basic entitlement is generally two weeks, with an increase to three weeks after a certain amount of years of service (generally after 5-8 years). Vacation pay is 4% of annual earnings while on two weeks of vacation and increases to 6% when an employee can take three weeks of vacation. Statutory holidays: there are eleven possible days of statutory holidays across the country with most provinces taking 7 to 9 days a year. Leaves of absence: i. Maternity/pregnancy leaves averaging weeks; ii. iii. iv. Parental leaves averaging weeks, with Quebec offering 52 weeks; Paternity leave of five weeks currently offered only in Quebec; Most provinces offer a few days of sick leave, while Quebec and federally regulated companies must offer 26 or 17 weeks, respectively; v. Some provinces offer family leave of 3-10 days to care for family in certain situations; vi. Bereavement leave averaging 3 days, while some offer 5 or 10 days. Personnel records: must generally be retained for an average of three years. Standards legislation also describes certain prohibited practices. For example, employers cannot refuse to hire, dismiss, intimidate, penalise or threaten to do so, or discriminate against an employee because he/she has 2 Federal: Canada Labour Code and Canada Labour Standards Regulations; Alberta : Employment Standards Code; British Columbia : Employment Standards Act; Manitoba : The Employment Standards Code and The Employment Standards Regulation; New Brunswick : Employment Standards Act; Newfoundland and Labrador : The Labour Standards Act; Nova Scotia : Labour Standards Code; Ontario : Employment Standards Act, 2000; Prince Edward Island: Employment Standards Act; Quebec : An Act Respecting Labour Standards; Saskatchewan : The Conditions of Employment Regulations; Northwest Territories : Employment Standards Act; Nunavut : Labour Standards Act; Yukon Territory : Employment Standards Act. 3

5 exercised a right contemplated by statutes. In such cases, tribunals can order compensation, cancel sanctions, or order reinstatement. 4. Individual Contracts of Employment (non-unionized employees) Employment law deals with non-unionized employees with individual employment contracts. a) Form While most contracts are written, oral contracts are also acceptable in certain cases. b) Term Individual contracts of employment can have a fixed or indefinite term. A contract is presumed to be for an indefinite period unless it is specified otherwise, for example, in the case of contractual workers. c) Restrictive covenants Non-competition clauses, non-solicitation clauses and confidentiality clauses can be added to employment contracts to protect employers. When examining such clauses, courts are concerned with balancing the employee s right to work and exercise their trade with the employer s interest in preventing former employees from causing harm to the company due to their new activities. Across Canadian jurisdictions, non-competition clauses- the most strenuous form of protection- are generally very difficult to enforce if less restrictive clauses, such as non-solicitation clauses, can adequately protect the company s interests. Quebec is an exception to this as the Civil Code of Quebec allows for such clauses as long as the employer can demonstrate that their terms are reasonable. Across all jurisdictions, if they are to be deemed valid, they must be limited in time, place and type of work for what is reasonably required to protect rights that are entitled to protection. They must not be overly broad, ambiguous or too strict, and must be tailored to the needs of the employer and the position of the employee. Non-solicitation clauses are less onerous and easier to enforce than non-competition clauses, as they do not limit what kind of work the employee can do, nor where, but rather limit certain kinds of raiding conduct aimed at trying to lure customers, prospective customers, suppliers, employees, consultants or contractors. These clauses are generally enforceable if their scope is suitably restrained. Confidentiality clauses are also generally accepted where the protected information is well-defined and clearly identifiable. d) Benefits Employees are entitled to employment insurance (EI) benefits that provide them with temporary income support equivalent to 55% of their weekly insurable earnings if they are between jobs, they can t work for sickness, childbirth, or parenting reasons or are providing care or support to a family member who is gravely ill. This is a statutory right guaranteed by the Employment Insurance Act and certain parallel legislation in Quebec. Employers are required to withhold the premiums from employees pay and employees are entitled to benefits for each week of employment within the benefit period. However, employees may be disqualified from receiving benefits in certain situations, such as if they have not taken advantage of an opportunity for suitable employment, they have quit or were dismissed for misconduct. This latter concept must be distinguished with just cause and is typically a higher standard to meet. However, employers typically do not intervene in the benefits process, which is a largely administrative exercise between the employee and the government. EI benefits must be distinguished from employer-provided supplementary insurance benefits which may be included in an employment contract, but are not legally required. Thus, employees may have life, disability, medical, dental or prescription insurance, to name a few, paid by their employer. 4

6 5. Dismissal a) Types of dismissals The concept of at will employment does not exist in Canada. In order to terminate a contract, employers must either have just cause or give reasonable notice to the employee, or there must be a breach of contract. There are therefore three types of dismissals in Canada: 1. Disciplinary dismissal: in this case, an employee s voluntary breach gives an employer just cause to dismiss him/her. This can include absenteeism and delays, insubordination, theft, fraud and vandalism, violence, disloyalty, wilful misconduct, disobedience, or wilful neglect of duty. The onus is typically on the employer to show that the trust necessary to the employment relationship has been irremediably broken. However, poor performance and a claim of just cause can be difficult to prove. Employers must comply with the principle of progressive discipline and document their actions. Only certain serious situations such as theft, assault or serious dishonesty may justify an exemption from the necessary progressivity in sanctions. 2. Dismissal without cause/frustration: an employer may terminate an employee without cause, but must give reasonable notice of termination or pay in lieu of notice. This does not apply to employees on a fixed term contract who must be paid the balance of their wages and benefits for the remainder of their contract. Employers must comply with both the statutory minimums for reasonable notice as well as with the common and civil law rights to reasonable notice, which are more generous. What is reasonable is the subject of much jurisprudential interpretation and depends on a number of factors such as age, type of employment, potential inducement away from a previous position, length of service, market conditions and employer conduct. Although notice periods can be as high as 30 months for employees with many years of service, there is no ceiling or maximum. Pay in lieu of reasonable notice must be distinguished from severance pay, which is paid in Ontario and federal undertakings when there is severance due to the discontinuance of the business of a certain size with a certain payroll to employees who have a certain time of employment. Severance pay recognizes loss of seniority and job-related benefits and an employee s long service. 3. Constructive dismissal: this occurs when an employer makes a unilateral material change to the existing terms and conditions of an employment relationship in such a way that the employment contract is deemed to be repudiated and the employee considers him or herself dismissed. Jurisprudence has recognized constructive dismissals in cases where there were changes of position or responsibilities, a significant decrease in pay or in work hours, a significant relocation, a reduction in benefits or the sale of the company. However, a recent decision of the Ontario Superior Court suggests that the employee s subjective perception of the employer s conduct could well be insufficient to ground such a claim. b) Remedies When an employee has been wrongfully or constructively dismissed, he/she can claim damages or, in some jurisdictions, request reinstatement. Indeed, in Quebec, Nova Scotia, and federal undertakings, employees with indefinite term contracts have a statutory right to reinstatement with back-pay if they are wrongfully dismissed. Additionally, human rights tribunals have the power to reinstate complainants who can show that their employment was terminated on the basis of a prohibited ground of discrimination. Reinstatement may not be requested or may be deemed impossible in certain circumstances, but it is nonetheless frequently applied by the tribunals. Following their dismissal, employees can claim various types of damages. Compensatory damages, which are usually pecuniary damages representing the value of lost salary or benefits, are the most common. Generally, employees cannot claim damages for the pain and distress caused as result of the termination. However, moral and punitive damages can be awarded in the presence of clear evidence of damage and vexatious, malicious, abusive conduct or bad faith by the employer. Punitive damages require particularly reprehensible and malicious behaviour, and an independently actionable wrong by the employer, such as a breach of the duty of good faith. These damages aim to punish the employer rather than compensate the employee and must not exceed what is 5

7 rationally required to punish the defendant. Such amounts are generally symbolic, ranging from $25,000 to $50,000, though some rare exceptions seem to be on the rise. Aggravated damages can also be awarded for mental distress due to unfair or bad faith conduct in the manner of dismissal. On the other hand, employees have a duty to mitigate their damages by making reasonable efforts to secure alternative employment and can have their damages reduced if they do not. 6. Labour Relations (unionized employees) Labour law is concerned with unionized employees whose employment conditions are governed by collective agreements. Labour relations therefore refers to the relations between employers and unionized employees through their bargaining agent, the union. Labour relations statutes apply to employees, which do not include managers, superintendents, foremen, directors or officers, certain public servants, or even professionals such as doctors and lawyers in some jurisdictions. Statutes set out the requirements for union certification, which is similar to the process in the U.S., as well as unfair labour practices that either unions or employers may be found to have committed in some circumstances 3. These unfair practices include employers interfering with unions, discriminating or disciplining employees on the basis of union membership, or financially supporting unions. On the other hand, unions must not engage in bargaining with an employer if they are not the bargaining agent, interfere with the formation of an employers organization or impose discipline on union members because of a discriminatory application of membership rules. In order to be certified, a trade union must first file an application for certification with the relevant authority who then examines the bargaining unit and determines whether the association has the necessary representative character. In some jurisdictions certification is automatic upon the reaching of a certain membership threshold, such as 50% or 65% of the proposed bargaining unit, whereas in others a vote is mandatory at all times or if a certain amount of members have signed-on without the association having reached the automatic threshold (for example, if 35% or 40% of employees in the bargaining unit are members). Once a vote is held, certification is granted if a majority (usually 50%+1) vote in favour. There are currently no right-to-work jurisdictions in Canada and union dues deductions are mandatory for all employees. Certification gives the union the exclusive authority to bargain with the employer on behalf of employees, and once it is granted, the union or the employer must serve a notice to bargain to the other party. If a collective agreement is already in place, this must be concluded within a certain period, varying from 30 days to a few months, before the expiry of the collective agreement. Once the notice is received, parties must usually begin negotiating within a certain time (typically 10 or 20 days). Once parties begin negotiating, they have an obligation to bargain in good faith and make every reasonable effort to reach an agreement. Strikes and lock-outs are tactics that can be used during the negotiation process, and replacement workers are permitted in most Canadian jurisdictions. Employers must carefully exercise their right to free speech once parties are negotiating, and are prohibited from making any kind of promises or threats to employees. Moreover, when an employer is notified of an application for certification, there is a statutory freeze of the conditions in place at the time. An employer cannot modify wages, conditions of employment or employee rights or privileges during this time, except in accordance with established custom ( business as usual or business as before ). For instance, changes due to decisions that were made prior to the beginning of the certification process are not precluded. When a business is sold, the new owners are typically subject to successor rights if the key elements of the business have been transferred ( going concern ). They are then bound by the collective agreements in place and become party to any proceedings. Unions can also make applications to include new employees in their bargaining units and units may merge. 3 Federal : Canada Labour Code; Alberta : Labour Relations Code; British Columbia : Labour Relations Code; Manitoba : Labour Relations Act; New Brunswick : Industrial Relations Act; Newfoundland and Labrador : Labour Relations Act; Nova Scotia : Trade Union Act; Ontario : Labour Relations Act; Prince Edward Island : Labour Act; Quebec : Labour Code and Related Acts; Saskatchewan: Employment Act. 6

8 7. Health and Safety and Workers Compensation Health and safety refers to the prevention of accidents, whereas workers compensation deals with the indemnity and rehabilitation of workers who have suffered accidents in the course of their employment. a) Health and safety As with the other elements of labour and employment law, health and safety follows the constitutional divide between the federal and provincial governments. For federal enterprises, part II of the Canada Labour Code sets out the rights and obligations in this respect, while the provinces have a variety statutes regarding health and safety and workers compensation which can be general or particular to some industries 4. An employer has general duties to take reasonable measures to protect health and safety, to comply with the applicable legislation and to ensure that their workers comply as well. These general duties can be broken down into more specific duties to maintain safe workplaces, provide information, instruction, training and supervision to their workers, inform workers of known or foreseeable hazards, provide safety equipment to workers, consult and cooperate with health and safety committees, and cooperate with health and safety inspectors. This also includes the duty to protect workers from a known risk of workplace violence, though not from workplace harassment, which is covered by health and safety laws in only four jurisdictions, but can also be addressed in other statutes. For example, the Quebec Labour Standards Act has a specific chapter on psychological harassment, complete with special remedies set out for violations. Workers also have responsibilities to take reasonable care to ensure their own safety and that of their coworkers, to use protection and safety equipment, to follow safe work procedures, to report injuries or illnesses, to report unsafe acts or conditions and to participate in health and safety committees. As a corollary, they have three main rights as well: 1. Right to know/be informed: workers have a right to be informed about known or foreseeable hazards and to receive information, instruction, training and supervision. 2. Right to refuse work: workers can refuse work if they reasonably believe it is dangerous to their health. In British Columbia and Alberta, this right is a duty and workers can be discharged or disciplined if they do not refuse dangerous work. This right is limited for some categories of workers, however, such as firefighters, police officers, or health care workers. 3. Right to participate: workers have a right to participate in the identification and resolution of problems via health and safety committees and representatives. Health and safety committees and representatives are an important part of the health and safety landscape and are either mandatory or subject to ministerial decision. In most jurisdictions, committees are put in place in organizations where there are 20 or more employees, whereas representatives are for smaller workplaces of less than 20. These committees and representatives identify potential problems and make recommendations to management, participate in the development and implementation of programs, deal with workers complaints and suggestions, and participate in inquiries and investigations. Health and safety is enforced by government officers and inspectors that conduct tests, examinations, inquiries, investigations and inspections and have the power to issue a wide variety of orders. Employers have a duty to assist them and cannot obstruct or hinder them. 4 Federal: Canada Labour Code; Alberta: Occupational Health and Safety Act; British Columbia: Workers Compensation Act; Manitoba: The Workplace Safety and Health Act; New Brunswick: Occupational Health and Safety Act; Newfoundland and Labrador: Occupational Health and Safety Act; Nova Scotia: Occupational Health and Safety Act; Ontario: Occupational Health and Safety Act; Prince Edward Island: Occupational Health and Safety Act; Quebec: An Act respecting Occupational health and safety; Saskatchewan: The Saskatchewan Employment Act; Northwest Territories and Nunavut: Safety Act; Yukon: Occupational Health and Safety Act. 7

9 Health and safety offences are strict liability offences, which require no proof of wrongdoing. An employer s only defence is to show that it acted with due diligence, taking every reasonable precaution in the circumstances to prevent injuries or illnesses. This can be done by implementing a plan to identify hazards or taking corrective action. Recently, the Canadian Criminal Code was amended by bill C-45, which instituted new duties to protect the health and safety of everyone in the workplace and the public, and put in place stiff penalties for violations that resulted in injuries or death. Organizations, which include corporations, and their representatives who direct the work of others can now be charged with criminal negligence for failure to protect workplace health and safety. Whereas organizations could formerly only be held liable for acts by senior members, they can now be held liable for the act of any representative working within the scope of their employment. Corporations can pay up to $100,000 in fines for a summary conviction for less serious offences, with unlimited fines for more serious offences. Individuals are liable for fines and imprisonment sentences, up to life imprisonment if the offence resulted in death. b) Workers compensation While there are health and safety regimes proper to both the federal and provincial jurisdictions, workers compensation falls exclusively under provincial jurisdiction. However, this does not exclude workers in federal undertakings from being compensated, as their workers are compensated according to the rules applicable in the province in which they work. Workers compensation compensates workers for their employment injuries, including occupational diseases, and is based on a no-fault system of liability. Legislation provides for the payment of income replacement indemnities and health care benefits, the compensation for employment injuries and their consequences, and death benefits, as the case may be. Employers need not be negligent for workers to be compensated and the workplace conditions need not be the exclusive cause of the accident, a significant contribution is sufficient. Workers who suffer employment injuries are entitled to return to work and provisions are made for the necessary care of the consolidation of their injury and their physical, social or vocational rehabilitation. After the occurrence of an accident, employers must advise the relevant provincial health safety commission within a certain number of days and workers must also file a claim within a certain delay in order to be compensated. 8. Human Rights a) Discrimination The Canadian Human Rights Act, as well as the various provincial charters, codes or acts, guarantee employees the right to equality and prohibit discrimination by employers, unions, and others 5. Discrimination exists where a distinction, exclusion or preference based on certain grounds nullifies or impairs a person s right to the full and equal recognition and exercise of their human rights and freedoms. Generally, it is forbidden to discriminate on the grounds of race, colour, religion, mental or physical handicap, sex or gender, pregnancy, sexual orientation, civil status, age (except as provided by law), political convictions, language, ethnic or national origin, social condition, or family status. This prohibition against discrimination applies during employment, as well as at hiring and during the interview and application process. Canadian human rights law generally tends to offer more protection than in the U.S. By virtue of employees right to not be discriminated against, employers have a duty to accommodate them up until the point of undue hardship. This is to ensure that workers who are able to work in some way can do so. Employers must examine what changes can be made to the workplace and to the employee s duties or schedule to accommodate them. Accommodation measures can include alternative work schedules, floating holidays, a 5 The main ones being: Federal : Canadian Human Rights Act; Alberta: Alberta Human Rights Act; British Columbia: Human Rights Code; Manitoba: Human Rights Code; New Brunswick: Human Rights Act; Newfoundland and Labrador: Human Rights Act; Nova Scotia: Human Rights Act; Ontario: Human Rights Code; Prince Edward Island: Human Rights Act; Quebec: Charter of Human Rights and Freedoms; Saskatchewan: Saskatchewan Human Rights Code; Northwest Territories: Human Rights Act; Nunavut: Human Rights Act; Yukon: Human Rights Act. 8

10 gradual return to work, the modification of job duties, or a temporary or permanent transfer to another position. For religious accommodations, plaintiffs must demonstrate that the accommodation is required on the basis of a sincerely held belief, which is not dependent on demonstrating the compulsory nature of a religious practice. That being said, this duty does not include having to create a new position or fundamentally change working conditions, nor should accommodation measures unduly hinder operational efficiency or trigger excessive costs. In order to assess whether an accommodation constitutes undue hardship, tribunals have retained three main types of criteria: 1. Limits of financial and material resources: this includes the costs of the accommodation, the nature of the enterprise, the total operating budget of the organization, the company s financial health and the general economic climate. 2. Effects on the good functioning of the company: this includes the relative interchangeability of employees, the adaptability of the workspace and equipment, the effect on the company s productivity, the number of employees affected by the measure and the length and scope of the accommodation. 3. Violations of rights: this includes the risks for the health or safety of the worker, his colleagues or the general public, the prejudicial effect of the accommodation on other employees, including on their morale, rights disputes and the impact on the rules of the collective agreement. b) Drug and alcohol testing There is generally no pre-employment and random drug testing in Canada. Testing may be permitted for safety sensitive positions or as part of a last chance or reinstatement plan. If a worker tests positive, employers may be required to accommodate him/her. c) Remedies These rights are enforced by human rights tribunals or commissions which, in addition to ensuring compliance with the legislation, conduct research and develop education programs in their jurisdictions. Case law is generally consistent across the country with some minor variations. Usually, tribunals can reinstate employees, compensate for wage loss, or require written apologies. They can also award damages, which rarely exceed $40,000. However, the Ontario Human Rights Tribunal set a new record this year by awarding $220,000 for the repeated sexual harassment of two temporary foreign workers. 9. Quebec Quebec is a unique jurisdiction within the Canadian legal framework. Characterized as a mixed jurisdiction, it incorporates principles of both civil and common law. It is also one of the most employee-friendly jurisdictions in the country, providing generous rights to workers. Quebecois are mostly francophone and French is the official language of Quebec. This is enshrined in the Charter of the French Language, which protects employees right to work in French and imposes certain obligations on employers. For example, an employer cannot require an employee to speak a language other than French unless the nature of their duties requires them to. As well, businesses with more than 50 employees must have a francization certificate, which confirms that French is used at all levels of the enterprise. Employers mass written communications to their employees must be in French, though individual communications can be in another language. Employees who feel aggrieved can file complaints, as can the general public in some cases. 10. Privacy Legislation Privacy legislation is divided along the traditional federal/provincial divide, but also between the public and private sector. It is regulated by the Canadian Charter of Rights and Freedoms and various other provincial and federal statutes. Privacy disputes are litigated through a complaint-based system and employees can turn to 9

11 provincial commissioners or commissions, or the federal court in the case of federal undertakings. All jurisdictions have legislation which protects personal information of employees in the public sector. Currently, only Alberta, British Columbia, Quebec and federally regulated workplaces have statutes regulating private sector employee information. Some jurisdictions have specifically addressed the privacy of medical information. Employees right to privacy can come in opposition to an employer s right to protect its interests. Employees information can only be collected and detained if there is a serious and legitimate interest to do so and with the consent of the employee. Information can then only be used and disclosed by other employees in the exercise of their functions or with the employee s consent, which, depending on the jurisdiction, can be written or verbal, express or implied. There are some exceptions to the need for consent if there is an emergency, if the information is necessary to prevent a crime, or in accordance with the application of a law or the collective agreement. The person must be able to access their files on request, and refusal is acceptable only in certain circumstances, such as when it would prejudice an investigation, affect judicial proceedings or cause serious harm to the health of the employee. Finally, the employee has the right to the rectification of incorrect information or of intelligence which was gathered when it should not have been. 10

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