For Indigenous employers, navigating employment laws can be challenging, especially when it comes to jurisdiction, employment contracts and progressive discipline. Understanding whether an employment relationship is subject to federal or provincial employment laws is essential for ensuring compliance with legal obligations. Well-structured employment contracts help define roles and expectations and protect the rights of employers, while a carefully drafted and consistently applied disciplinary policy ensures workplace accountability.
Are employees of Indigenous Nations or organizations provincially or federally regulated?
There is a common misconception that all employment relationships with an Indigenous Nation or organization are federally regulated. This may not be accurate in every circumstance. For example, many child welfare agencies have been deemed by various Courts and tribunals to be provincially regulated. This conclusion is often reached due to the presumption that child and family services is a provincial obligation.
Whether employees of an Indigenous Nation or organization are subject to federal or provincial regulation depends on several factors, including but not limited to:
- The organization's structure,
- The work performed by the employee,
- The nature of the organization's operations; and
- The applicable legislation.
The assessment of jurisdiction is ultimately driven by the particular circumstances of each organization.
It is critical that Indigenous employers understand which employment laws apply, as federal and provincial laws differ with respect to employment standards obligations, such as minimum wage, overtime, vacation pay, statutory holidays and other employment conditions.
The jurisdiction of an employer can also impact occupational health and safety requirements, the applicable human rights and privacy legislation among other employment matters. Determining jurisdiction is also critical to ensuring enforceable employment contracts.
Why are employment contracts necessary?
Employment contracts are a crucial tool for the formation and governance of the employment relationship. A well-drafted contract sets clear expectations, reduces legal risks and ensures compliance with federal or provincial employment laws.
One of the most important aspects of an employment contract is the termination clause. A termination clause can define the amount of notice or pay in lieu of notice that an employee is entitled to receive upon a without-cause termination, potentially limiting the employer's liability. In some cases, a termination clause can be the difference between an employer being required to provide an employee a few weeks of notice or several months of notice.
The financial consequences of such contract provisions can be significant for employers.
What is the purpose of a progressive discipline policy?
A progressive discipline policy is a key tool for employers to manage employee performance, address workplace issues fairly and reduce legal risks. A progressive discipline policy creates a framework for employers to notify employees of unacceptable conduct and help them improve their behaviour.
The progressive discipline process involves a series of escalating steps of discipline. These steps are designed to ensure employees understand the misconduct that has occurred and how to correct the misconduct going forward.
Progressive discipline allows employers to effectively document steps taken to improve employee conduct. Properly documenting discipline can create the foundation to support dismissing an employee for just cause.
Without an effective progressive discipline program, employers can leave themselves open to financial liability, particularly with respect to just cause terminations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
