This presentation outlines: When federal employment law applies to aboriginal businesses - Liabilities on terminating employment - How employment contracts can reduce them - Progressive discipline - Primer on discrimination law

1. Employment Law 101 for
Aboriginal Businesses
By J. Geoffrey Howard
geoffrey.howard@gowlings.com
(604) 891-2279

2. 2
Introduction
What we will cover (at speed!):
• When federal employment law applies to aboriginal
businesses
• Liabilities on terminating employment
• How employment contracts can reduce them
• Progressive discipline
• Primer on discrimination law

3. When federal employment law applies
Most aboriginal business activity subject to BC
legislation
This presentation covers BC provincial laws
Federal employment laws only will apply :
• Band government and related agencies’ employees
• Rare businesses on reserve that are inextricably
linked to aboriginal identity
3

4. Termination Liabilities
Difficult to prove “just cause” for firing
Most terminations are “without cause”
e.g. - poor fit
- poor performance but no warnings
- lack of funds
4

5. Termination Liabilities (Cont’d)
On a without cause termination, employers must
provide:
• ESA minimum notice or pay in lieu
• Court-awarded contractual “reasonable notice”
Reasonable notice awards are:
• Unpredictable
• Often onerous
Employers can define and limit contractual
severance by using an employment agreement
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6. Progressive Discipline
Before employers can “fire” for just cause,
they must give prior warnings
Warnings are also good performance
management tools
An effective warning:
• Describes the problem
• Sets the standard
• Sets a time frame
• For a “final” warning, states that failure to comply
will lead to termination
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7. Progressive Discipline (Cont’d)
Apply progressive discipline principles:
• Increase the sanction for repeat offences
• Ensure the sanction is “proportional” to the problem
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8. Human Rights Primer
Under the B.C. Human Rights Code:
• Employers must not base any employment decision
from hiring through firing on a protected ground
• Employers must extend “reasonable accommodation”
Aboriginal businesses have limited scope to
apply “affirmative action” in favour aboriginals
by way of “employment equity”
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9. Human Rights Primer (Cont’d)
Toughest challenges is assessing how far an
employee’s disability must be accommodated:
• No clear guidelines
• Addictions are a disability
• Employers typically need to allow employees one or
more chances to get clean
Band government and related agencies are now
subject to the CHRA rules prohibiting
discrimination
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10. Thank You
J. Geoffrey Howard
Tel: (604) 891-2279
Email: geoffrey.howard@gowlings.com
DM#1335964
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