The relationship between an employer and an employee is one of the most significant legal bonds in modern society. For most people, their job provides not only their livelihood but also a sense of identity and purpose. For employers, their workforce is their most valuable, and often most legally complex asset.
In Alberta, employment law is a dynamic field shaped by both the Employment Standards Code and "common law" (the body of law created by previous court decisions). When this relationship breaks down, the results often end up before a judge. Whether you are a business owner looking to mitigate risk or an employee wondering if your rights have been violated, understanding the most common areas of dispute is essential. Based on recent trends in Alberta courts, here are the top 10 employment law issues currently driving litigation that our Calgary Employment Lawyers deal with regularly.
1. Wrongful Dismissal Claims
Wrongful dismissal is perhaps the most misunderstood term in employment law. Many believe it refers to being fired "unfairly." In reality, a dismissal is legally "wrongful" when an employer terminates an employee without providing either a valid reason (just cause) or the required amount of notice (or pay in lieu of that notice). Majority of the matters that our Calgary Employment Lawyers deal with relate to wrongful termination of employment.
In Alberta, unless a written contract says otherwise, employees are entitled to "reasonable notice" under common law. This is usually much more generous than the bare minimums set out in the Employment Standards Code. Courts determine what is "reasonable" by looking at the "Bardal factors": the employee’s age, their length of service, the nature of their position, and the availability of similar employment. For example, a senior executive with 20 years of service may be entitled to 18 to 24 months of pay, whereas a junior clerk may only be entitled to a few weeks..
2. Constructive Dismissal
You don’t have to be fired to have a legal claim for dismissal. Constructive dismissal occurs when an employer makes a "fundamental change" to the terms of employment without the employee’s permission. This is effectively the employer breaking the contract, leaving the employee with no choice but to resign.
Common examples include a significant reduction in salary, a demotion, or a forced relocation to a different city. If the change is substantial enough that it goes to the heart of the employment agreement, the employee can resign and sue for the same damages they would have received had they been fired without notice. It is critical that you speak with a Calgary employment lawyer if you have been constructively dismissed.
3. Termination for Cause
Termination for "just cause" is often called the "capital punishment" of employment law. When an employer fires someone for cause, they are saying the employee’s conduct was so egregious that the employment relationship is irreparably broken. In these cases, the employer pays nothing, no notice, no severance.
Because the stakes are so high, Alberta courts set a very high bar for proving cause. It usually requires evidence of serious misconduct, such as theft, fraud, or repeated insubordination after multiple warnings. Courts use a "proportionality" test: did the "punishment" fit the "crime"? If a long-term employee makes a one-time mistake that doesn't involve dishonesty, a court is unlikely to uphold a for-cause termination.
4. Enforceability of Termination Clauses
To avoid the high costs of common law notice, many employers include termination clauses in their contracts. These clauses attempt to limit an employee’s payout to the minimums required by the Employment Standards Code.
However, these clauses are frequently the subject of litigation. Alberta courts have made it clear that if a termination clause is even slightly ambiguous or if it potentially violates the minimum standards of the law, it will be struck down. If the clause is voided, the employee reverts to their right to much higher common law notice. This is why "standard" contracts often fail in court; they must be drafted with precision. To better understand whether your termination clause is ambiguous, speak with a calgary employment lawyer at OP Lawyers LLP.
5. Human Rights Violations
The Alberta Human Rights Act prohibits discrimination in the workplace based on protected grounds, including physical or mental disability, race, gender, age, and family status.
A significant portion of litigation involves the "duty to accommodate." For instance, if an employee develops a medical condition that prevents them from performing their usual duties, the employer must attempt to modify the job or find an alternative role up to the point of "undue hardship." Disputes arise when an employer terminates an employee because of their limitations rather than working to accommodate them.
6. Workplace Harassment and Violence
Employers in Alberta have a legal obligation to provide a safe work environment, free from harassment and violence. This isn't just a matter of good policy; it’s a matter of legal liability.
If an employer ignores complaints of bullying or fails to investigate allegations of harassment, the employee may have a claim for constructive dismissal or may sue for damages under "tort law" (civil wrongs). Courts are increasingly holding employers accountable for "toxic work environments," even if the employer didn't directly participate in the harassment but merely allowed it to persist.
7. Reprisal Claims
A "reprisal" is a form of retaliation. Under the Employment Standards Code and other provincial laws, employees have the right to assert their legal rights, such as asking for overtime pay, taking a protected leave, or filing a health and safety complaint without being punished for it.
If an employer fires, demotes, or disciplines an employee because they stood up for their rights, the employee can file a reprisal claim. Courts and tribunals take these cases seriously, often awarding damages for lost wages and emotional distress to discourage employers from "silencing" workers.
8. Wage and Overtime Disputes
While they may seem straightforward, disputes over unpaid wages and overtime are incredibly common. Under the Employment Standards Code, most employees are entitled to overtime pay (1.5 times their regular wage) for any hours worked over 8 hours a day or 44 hours a week.
Disputes often arise when employers claim an employee is "management" and therefore exempt from overtime, or when they fail to keep accurate records. In Alberta, the burden of proof regarding hours worked often falls on the employer. If you don't keep records, the court is more likely to believe the employee’s version of the story.
9. Employee Misclassification
With the rise of the "gig economy," more companies are hiring people as "independent contractors" rather than "employees." The distinction is vital: contractors don't get vacation pay, overtime, or notice of termination.
However, simply signing a contract that says "I am a contractor" does not make it so. Alberta courts look at the substance of the relationship. Does the company control how, when, and where the work is done? Does the worker provide their own tools? Are they financially dependent on this one client? If the court finds a worker was actually an employee, the company can be hit with massive bills for unpaid benefits, taxes, and severance.
10. Group Terminations and Layoffs
In a fluctuating economy like Alberta's, mass layoffs are a reality. However, employers cannot simply shut the doors or let go of 50 people without following specific rules.
The Employment Standards Code requires employers to provide the Minister of Labour with notice and often requires longer notice periods for the employees themselves when large groups are terminated within a short window. Failure to follow these procedural steps can lead to significant administrative penalties and civil lawsuits from groups of displaced workers.
Conclusion
Employment law is rarely black and white. At OP Lawyers LLP, our Calgary employment lawyers understand this. Most disputes arise because the parties didn't have a clear, enforceable contract in place, or because they acted in the heat of the moment without understanding their legal obligations.
For employees, the lesson is to always have a termination offer reviewed by a professional; you are likely entitled to more than what is initially offered. For employers, the lesson is that "an ounce of prevention is worth a pound of cure." Investing in clear contracts and robust HR policies can prevent workplace disagreement from turning into a costly day in court.
Whether you are facing dismissal or managing a workforce, staying informed about these ten issues is the first step toward protecting your interests in the Alberta legal landscape
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If you need legal assistance regarding your employment situation, don’t hesitate to contact OP Lawyers LLP. Our team of dedicated Calgary Employment Lawyers are ready to help you understand your rights and options.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. Employment law matters are highly fact specific. For advice tailored to your situation, please consult a qualified Calgary employment lawyer at OP Lawyers LLP or another legal professional.