PART IIIStandard Hours, Wages, Vacations and Holidays (continued)
DIVISION XV.2Leave of Absence for Members of the Reserve Force (continued)
Marginal note:Return to work postponed
247.8 (1) If the employee does not notify the employer at least four weeks before the day on which the leave that is taken under this Division is to end, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.
Marginal note:Subsection (1) does not apply
(2) Subsection (1) does not apply if the employee notifies the employer in accordance with paragraph 247.6(1)(b) before the leave begins and if the length of the leave is not changed after the leave begins.
Marginal note:Deemed part of leave
(3) The period of postponement referred to in subsection (1) is deemed to be part of the leave.
- 2008, c. 15, s. 1
247.9 [Repealed, 2017, c. 33, s. 211]
Marginal note:Continuous employment — benefits
247.91 (1) For the purposes of calculating the benefits of an employee who takes a leave of absence under this Division, employment on the employee’s return to work is deemed to be continuous with their employment before the leave.
(2) The seniority of an employee who takes a leave of absence under this Division shall accumulate during the leave.
- 2008, c. 15, s. 1
Marginal note:Application of section 189
247.92 Section 189 applies for the purposes of this Division.
- 2008, c. 15, s. 1
Marginal note:Resumption of employment in same position
247.93 (1) At the end of a leave of absence that is taken under this Division, the employer shall reinstate the employee in the position that the employee occupied on the day before the day on which the leave begins.
Marginal note:Comparable position
(2) If for a valid reason an employer is not able to reinstate the employee in that position, they shall reinstate the employee in a comparable position with the same wages and benefits and in the same location.
- 2008, c. 15, s. 1
Marginal note:Not able to perform work
247.94 Subject to the regulations, if an employee is not able to perform the functions of the position that they occupy before the leave begins — or those of a comparable position, with the same wages and benefits and in the same location — the employer may assign them to a position with different terms or conditions of employment.
- 2008, c. 15, s. 1
Marginal note:Wages or benefits affected by reorganization
247.95 (1) If, during a leave of absence that is taken under this Division, the wages or benefits of the group of employees of which an employee is a member are changed as part of a plan to reorganize the industrial establishment in which that group is employed, the employee is entitled, on reinstatement under this section, to receive the wages and benefits in respect of that employment that that employee would have been entitled to receive had that employee been working when the reorganization took place.
Marginal note:Notice of change in wages or benefits
(2) The employer of an employee who is on leave and whose wages or benefits would be changed as a result of the reorganization shall, as soon as practicable, send a notice to the employee at their last known address.
- 2008, c. 15, s. 1
Marginal note:Prohibition — employee
247.96 (1) No employer may dismiss, suspend, lay off, demote or discipline an employee because they are a member of the reserve force or intend to take or have taken a leave of absence under this Division or take into account the fact that an employee is a member of the reserve force or intends to take or has taken a leave of absence under this Division in a decision to promote or train them.
Marginal note:Prohibition — future employee
(2) No person may refuse to employ a person because they are a member of the reserve force.
- 2008, c. 15, s. 1
247.97 The Governor in Council may make regulations for carrying out the purposes of this Division and, without restricting the generality of the foregoing, may make regulations
(a) specifying the absences that are deemed not to interrupt continuity of employment for the purpose of subsection 247.5(1);
(b) specifying what constitutes or does not constitute an operation for the purposes of paragraph 247.5(1)(a);
(c) setting out the activities for the purposes of paragraph 247.5(1)(b);
(d) defining “military skills training” for the purposes of paragraph 247.5(1)(c);
(e) limiting the duration of the treatment, recovery or rehabilitation referred to in paragraph 247.5(1)(g) or setting out the terms or conditions for the application of that paragraph;
(f) specifying what constitutes or does not constitute undue hardship for the purposes of subsection 247.5(4);
(g) specifying what constitutes or does not constitute a valid reason for the purposes of subsection 247.6(1), (2), (3) or (4), 247.7(3) or 247.93(2);
(h) specifying the circumstances in which section 247.7, subsection 247.8(1) or subsection 247.91(2) does not apply;
(i) specifying the circumstances in which an employer may not assign an employee to a position with different terms or conditions of employment for the purposes of section 247.94;
(j) [Repealed, 2018, c. 27, s. 495]
(k) [Repealed, 2018, c. 27, s. 495]
(l) prescribing the classes of employees that are not entitled to a leave of absence under this Division if the Governor in Council is satisfied that the fact of taking leave would cause unreasonable consequences; and
(m) prescribing the circumstances in which classes of employees are not entitled to a leave of absence under this Division.
DIVISION XV.3Genetic Testing
247.98 (1) The following definitions apply in this Division.
disclose includes to authorize disclosure. (communiquer)
- genetic test
genetic test, in relation to an employee, means a test that analyzes the employee’s DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis. (test génétique)
Marginal note:Genetic test
(2) Every employee is entitled not to undergo or be required to undergo a genetic test.
Marginal note:Disclosure of results
(3) Every employee is entitled not to disclose or be required to disclose the results of a genetic test.
Marginal note:Disciplinary action
(4) No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Division, have worked, or take any disciplinary action against or threaten to take any such action against an employee
(a) because the employee refused a request by the employer to undergo a genetic test;
(b) because the employee refused to disclose the results of a genetic test; or
(c) on the basis of the results of a genetic test undergone by the employee.
Marginal note:Disclosure by third party
(5) No person shall disclose to an employer that an employee has undergone a genetic test, or disclose to an employer the results of a genetic test, without the written consent of the employee.
Marginal note:Collection or use
(6) No employer shall collect or use the results of a genetic test without the written consent of the employee who has undergone the test.
- 2017, c. 3, s. 8
247.99 (1) An employee who alleges that an employer has taken action against the employee in contravention of subsection 247.98(4) may make a complaint in writing to the Head.
(1.1) [Repealed, 2018, c. 27, s. 585]
Marginal note:Time for making complaint
(2) Subject to subsection (3), the complaint shall be made to the Head not later than 90 days after the day on which the complainant knew, or in the Head’s opinion ought to have known, of the action or circumstances giving rise to the complaint.
Marginal note:Extension of time
(3) The Head may extend the period of time referred to in subsection (2)
(a) if the Head is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the employee making the complaint believed the official had that authority; or
(b) in any other circumstance that is prescribed by regulation.
Marginal note:Head to assist parties
(4) On receipt of a complaint made under subsection (1), the Head shall endeavour to assist the parties to the complaint to settle the complaint.
Marginal note:Complaint not settled within reasonable time
(5) If a complaint is not settled under subsection (4) within the period that the Head considers to be reasonable in the circumstances, the Head must, on the written request of the employee who made the complaint that the complaint be referred to the Board, deliver to the Board the complaint made under subsection (1) and any other statements or documents that the Head has that relate to the complaint.
(6) If the employee who made the complaint does not reply to a written communication from the Head within a period that the Head considers to be reasonable in the circumstances and a period of at least 30 days, or any longer period that may be prescribed by regulation, have elapsed from the day on which the complaint was made, the Head may give written notice to the employee that they have the period of 30 days, or any longer period that may be prescribed by regulation, set out in the notice to make a written request that the complaint be referred to the Board.
Marginal note:Time limit
(6.1) Subject to the regulations, if the employee to whom notice is given under subsection (6) does not, within the period set out in the notice, make a written request that the complaint be referred to the Board, the Head may deem the complaint to be withdrawn.
Marginal note:Suspension of complaint
(6.2) If the Board is satisfied that the complainant must take measures before the Board may continue to deal with the complaint referred to it under subsection (5), it may, at any time, suspend consideration of the complaint, in whole or in part.
(6.3) If the Board suspends consideration of a complaint, the Board shall notify the complainant in writing and specify in the notice
(a) the measures that complainant must take; and
(b) the period within which they must take those measures.
Marginal note:End of suspension
(6.4) The suspension ends when, in the Board’s opinion, the measures specified in the notice have been taken.
Marginal note:Rejection of complaint
(6.5) The Board may reject a complaint referred to it under subsection (5), in whole or in part,
(a) if the Board is satisfied that
(i) the complaint is not within its jurisdiction,
(ii) the complaint is frivolous, vexatious or not made in good faith,
(iii) the complaint has been settled in writing between the employer and the employee,
(iv) there are other means available to the employee to resolve the subject matter of the complaint that the Board considers should be pursued,
(v) the subject matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator, or
(vi) in respect of a complaint made by an employee who is subject to a collective agreement, the collective agreement covers the subject matter of the complaint and provides a third-party dispute resolution process; or
(b) if consideration of the complaint was suspended under subsection (6.2) and if, in the Board’s opinion, the measures specified in the notice under subsection (6.3) were not taken within the specified period.
Marginal note:Notice of rejection of complaint
(6.6) If the Board rejects a complaint, it shall notify the employee in writing, with reasons.
Marginal note:Decision of Board
(7) The Board, after a complaint has been referred to it, shall
(a) consider whether the employer has contravened subsection 247.98(4) and render a decision on it; and
(b) send a copy of the decision with the reasons for the decision to each party to the complaint and to the Head.
(8) If the Board decides under subsection (7) that an employer has contravened subsection 247.98(4), the Board may, by order, require the employer to cease contravening that subsection and may, if applicable, by order, require the employer to
(a) permit the employee to return to the duties of their employment;
(b) reinstate the former employee;
(c) pay to the employee or former employee compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to the employee or former employee;
(d) rescind any disciplinary action taken in respect of the contravention and pay compensation to the employee, not exceeding the sum that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer; and
(e) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequences of the contravention.
(9) [Repealed, 2018, c. 27, s. 496]
Marginal note:Order final
247.991 (1) Every order of the Board is final and shall not be questioned or reviewed in any court.
Marginal note:No review by certiorari, etc.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board in any proceedings under section 247.99.
Marginal note:Enforcement of orders
(3) Any person affected by an order of the Board under subsection 247.99(8), or the Head on the request of such a person, may, after 14 days from the day on which the order is made, or from the day provided in the order for compliance, whichever is later, file a copy of the order in the Federal Court, exclusive of reasons.
(4) On filing in the Federal Court under subsection (3), an order of the Board shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken in respect of it, as if the order were a judgment obtained in that Court.
Marginal note:Civil remedy
(5) The making of a complaint under subsection 247.99(1) does not suspend or affect an employee’s civil remedies against their employer.
- Date modified: