什么是就业法？雇主为什么要遵循就业法？ What is Employment Law? Why should Employers care about Employment Law?

吴鹰杰

Jim Wu

加拿大的就业法是站在雇员的立场上，是保护雇员的。雇主必须遵从法律并承担雇主应有的义务。反之，雇主将有可能面对风险，造成意想不到的损失。

Canadian laws recognize that there is a power imbalance between employees and employers. What this means is our laws include legal protections for employees and legal obligations for employers. As an employer, you might wonder, what is at stake for not following the rules?

我们经常会处理类似以下的一些例子（以下称呼及姓氏并非真实）：

The following fictitious examples are what we typically deal with in our practice as employment lawyers (please note that any actual resemblances are purely coincidental):

黄先生在温哥华岛购买了一个度假胜地。为吸引更多的中国游客，黄先生雇佣了一位中国人代替了原礼宾部负责人（欧洲人）。黄先生后来收到了他前礼宾部负责人的来信。来信要求黄先生赔偿几万加元，要不就会投诉到人权审裁处。

Mr. Wong has purchased a resort in Vancouver Island. Awestruck by the local beauty, Mr. Wong hopes to attract more Mandarin-speaking tourists and he replaces his head of concierge (a Caucasian) with a Chinese one. Mr. Wong later receives a letter threatening a human rights complaint from his former head of concierge, demanding tens of thousands.

涉及法律的问题: 黄先生可能因种族或出生地的歧视而解雇了前礼宾部负责人。

THE LEGAL PROBLEM: Mr. Wong may have discriminated against his former head of concierge by firing him because of his race or place of origin.

黄先生面对的风险：黄先生可能会被裁定违反Human Rights Code。结果，他可能不得不支付多种赔偿，包括补偿损失的工资（wage loss)和“损害尊严”赔偿(injury to dignity damages)。除了这些以外，黄先生可能还需要聘用律师来面对人权投诉。

WHAT IS AT STAKE FOR MR. WONG: Mr. Wong may be found to have breached the Human Rights Code and an award of financial damages could be made including wage losses and injury to dignity damages. Mr. Wong may also need to spend a lot of money (including money to hire a lawyer) to deal with the human rights complaint.

餐馆老板彭女士的一名女员工被其餐馆的另一名男员工受到欺凌和性骚扰。事后，那位女员工向WorkSafeBC举报。 当WorkSafeBC在调查过程中提出要查看餐馆职业健康和安全条例，餐馆无法提供。

A female employee of Ms. Peng, a restaurant owner, made a complaint to WorkSafeBC that she was being bullied and sexually harassed by a male colleague. During its investigation of the complaint, WorkSafeBC asks for the restaurant’s bullying and harassment policy and procedure but Ms. Peng is unable to do so as the restaurant does not have one.

涉及法律的问题：   Workers Compensation Act要求彭女士制定餐馆职业健康安全条例，并对所有雇员必须进行该政策和程序培训。

THE LEGAL PROBLEM: The Workers Compensation Act requires every employer to have a bullying and harassment policy and procedure and to train all of their employees on that policy and procedure.

彭女士面对的风险：   彭女士可能会因不遵守法律规定，收到遵守令。根据Workers Compensation Act，公司也可能因违反工作场所安全标准而被罚款。在最严重的情况下，这些罚款可能超过100,000加元。

WHAT IS AT STAKE FOR MS. PENG: A finding of non-compliance and order to comply will likely be made. Companies can also be subjected to fines under the Workers Compensation Act, which can exceed $100,000 for the most extreme safety violations.

董女士开办了一个课余学习中心。董女士对申请职位的老师以2小时的无薪代课作为她聘用评估。目前已被聘用老师有20 位。最近，董女士收到了Employment Standards投诉。

Ms. Tong runs an after-school learning centre. She interviewed 20 prospective instructors and had them as a part of their interview, each teach a 2-hour class without pay. Recently, Ms. Tong received an Employment Standards complaint.

涉及法律的问题：    Employment Standards Act 要求雇主支付代课或曾代课老师时薪，哪怕是试用但未被录用。

The Legal Problem: Under the Employment Standards Act, Ms. Tong must pay all her job applicants for their 2 hours of teaching because it is considered to be “work”.

董女士面对的风险：   赔偿代课或曾代课老师时薪，并罚款至少1万加币（500 元 为一位老师）。

What is at stake for Ms. Tong: On top of paying wages for the 2 hours of work for all 20 of her prospective instructors, Ms. Tong may be fined a minimum of $10,000.00 ($500 fine for each affected prospective instructor).

张先生无书面合同雇用了一位雇员。一年后，张先生解雇了那位雇员，并给了该雇员一些补偿。但该员工不但没有接受张先生的补偿，而且请了律师并向他起诉。

Mr. Chang hires his newest employee without a written contract. A year later, Mr. Chang fires that employee and offers him some severance. The employee rejects Mr. Chang’s offer and hires a lawyer and sues him.

涉及法律的问题：    由于张先生没有书面雇佣协议。

The Legal Problem:         Mr. Chang does not have a written employment contract.

张先生面对的风险：   张先生可能要聘用律师面对诉讼。诉讼结果可能法院命令张先生付遣散费。

What Mr. Chang potentially faces: A court order to pay severance pay, as well as spending lots of money to either fight or settle the lawsuit.

综上所述，雇主要遵循就业法。雇主无论是雇用，解雇，或者介于两者之间的任何冲突，雇主仍有可能违反就业法。为了最大程度减少您的风险，建议您聘用就业法律师保护雇主的权力。

In summary, employers face serious liabilities. Whether it is hiring, firing, or anything in between, even the most cautious employer can run afoul of employment laws. There are proactive steps you can take to avoid these risks. To minimize liability, we recommend you get advice from an employment lawyer.

本博客旨在提供一般性信息，不作为正式法律建议用途。每种具体情况必须依据其自身事实加以考虑。

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

如若需要相关法律咨询建议（普通话或上海话），请联系吴鹰杰律师。联系邮箱地址：[email protected]。

Need legal advice in Mandarin or Shanghaiese Dialect? Contact Jim Wu [email protected].