Statutes of Newfoundland 1992

RSN 1990 cL-2

(2) Notwithstanding paragraph (1)(a), where an employer requires an employee to work on a public holiday for a number of hours that is less than the number of hours that the employee would work if it were a normal working day, the employer shall pay to the employee his or her normal wages for the number of hours worked, plus the wages the employee would have earned if the day were a normal working day.

(2) Paragraph (1)(b) does not apply to an employee who, in the 30 day period immediately preceding the public holiday, works the number of hours which may be prescribed by the Lieutenant-Governor in Council.

Designation of week

21.1 (1) An employer may designate a period of 7 continuous days as a week for the purpose of this Part.

(2) Where an employer who has designated a period of 7 continuous days as a week for the purpose of this Part changes that designation and an employee of the employer believes that he or she has suffered a loss of wages as a result of the change of designation, the employee may make a complaint to the director.

(3) Where a complaint is made against an employer under subsection (2), the onus of proving that an employee of his or hers has not suffered a loss of wages as a result of the change of designation rests with the employer.

Rest period

24. (1) Subject to the regulations, an employer shall permit an employee to take an unbroken rest period of 1 hour immediately following each 5 consecutive hours employed under the contract of service.

(2) A collective agreement within the meaning of the Labour Relations Act or in a written contract of service between the employer and the employee may make provision for a rest period that differs from that provided for in subsection (1) both with respect to its duration and timing and a rest period set out in that collective agreement or written contract of service shall be considered to be a rest period for the purpose of this Part in respect of an employer and an employee bound by the collective agreement or written contract of service.

Duty to review

30. Every 2 years from the date of coming into effect of regulations made under section 28 or within the lesser period that the board considers expedient, or the Lieutenant-Governor in Council directs, the board shall review the regulations and recommend to the Lieutenant-Governor in Council that they continue in force, be amended or repealed and the Lieutenant-Governor in Council may give effect to those recommendations.

Payment of minimum wage

31. (1) An employer to whom a regulation made under section 28 applies shall pay to an employee wages that are not below the rate set out in the regulation.

Definitions

39. In this Part

Pregnancy leave

40. (1) A pregnant employee who has been employed under a contract of service with the same employer for a period of 20 consecutive weeks immediately before the expected birth date is entitled to a leave of absence without pay.

(2) An employee may begin pregnancy leave no earlier than 17 weeks before the expected birth date.

(3) An employee shall give her employer

Special circumstances

41. (1) Subsection 40(3) does not apply in the case of an employee who stops working because of complications caused by her pregnancy or because of a birth, still-birth or miscarriage that happens earlier than the employee was expected to give birth.

(2) An employee referred to in subsection (1) shall, within 2 weeks of stopping work, give to her employer

End of pregnancy leave

42. (1) The pregnancy leave of an employee who is entitled to take parental leave ends 17 weeks after the pregnancy leave begins.

(2) The pregnancy leave of an employee who is not entitled to take parental leave ends either 17 weeks after the pregnancy leave began or the day that is 6 weeks after the birth, still-birth or miscarriage whichever is the later.

(3) The pregnancy leave of an employee ends on a day earlier than the day provided for in subsection (1) or (2) if the employee gives the employer at least 4 weeks written notice of that day.

(4) An employee who is on pregnancy leave and who does not intend to take parental leave shall notify her employer not less than 4 weeks before the date on which she intends to return to work.

Adoption leave

43. (1) An employee who has been employed under a contract of service with the same employer for at least 20 consecutive weeks and who is the parent of a child is entitled to a leave of absence without pay following the coming of the child into the care and custody of the parent for the 1st time.

(2) An employee shall give his or her employer at least 2 weeks written notice of the date the leave is to begin.

Special circumstances

43.1 (1) Subsection 43(2) does not apply in the case of an employee who is the parent of a child and who stops working because the child comes into the care and custody of the employee for the 1st time sooner than expected.

(2) The adoption leave of an employee referred to in subsection (1) begins on the day the employee stops working.

(3) An employee referred to in subsection (1) shall give his or her employer written notice that the employee wishes to take adoption leave within 2 weeks after the employee stops working.

End of adoption leave

43.2 Adoption leave ends 17 weeks after it began or on an earlier day if the employee gives his or her employer at least 4 weeks written notice of that day.

Parental leave

43.3 (1) An employee who has been employed under a contract of service with the same employer for at least 20 consecutive weeks and who is the parent of a child is entitled to a leave of absence without pay following

(2) Parental leave may begin no more than 35 weeks after the day the child is born or comes into the care and custody of a parent for the 1st time.

(3) The parental leave of an employee who takes pregnancy leave shall begin when the pregnancy leave ends unless the child has not yet come into the care and custody of the parent for the 1st time.

(4) An employee shall give his or her employer at least 2 weeks written notice of the date the leave is to begin.

Special circumstances

43.4 (1) Subsection 43.3(4) does not apply in the case of an employee who is the parent of a child and who stops working because the child comes into the custody, care and control of a parent for the 1st time sooner than expected.

(2) The parental leave of an employee referred to in subsection (1) begins on the day the employee stops working.

(3) An employee referred to in subsection (1) shall give his or her employer written notice that the employee wishes to take leave within 2 weeks after the employee stops working.

End of parental leave

43.5 Parental leave ends 12 weeks after it began or on an earlier day if the employee gives the employer at least 4 weeks written notice of that day.

Change of notice

43.6 (1) An employee who has given notice to begin pregnancy, adoption or parental leave may change the notice

(2) An employee who has given notice to end his or her pregnancy, adoption or parental leave may change the notice

Employee's rights after leave

43.7 Upon the ending of pregnancy, adoption or parental leave of an employee, the terms of the contract of service subsisting at the time pregnancy, adoption or parental leave began shall be so resumed that the wages, duties, benefits and position of the employee are not less beneficial than those that subsisted before the pregnancy, adoption or parental leave began.

Effect of leave on benefits

43.8 Unless an employer and employee otherwise agree, the period of pregnancy, adoption or parental leave does not count towards the application of the rights, benefits and privileges conferred by this Act upon an employee, but the period worked upon resumption of employment after pregnancy, adoption or parental leave shall be considered for the purpose of this Act, to be continuous with the period worked before the pregnancy, adoption or parental leave.

Employee may not be dismissed

43.9 (1) An employer shall not dismiss an employee or give notice of dismissal to an employee

(2) Where an employee is dismissed by his or her employer contrary to subsection (1), the onus of proving that the reason for dismissal is unrelated to pregnancy, adoption or parental leave rests with the employer.

Bereavement and sick leave

43.10 (1) An employee, having been employed under a contract of service with the same employer for a continuous period of at least 1 month, shall be granted by his or her employer a period of bereavement leave consisting of 1 day paid leave and 2 days unpaid leave in the event of the death of the spouse, a child, the mother, father, a brother or sister, a grandparent or a mother-in-law, father-in-law, brother-in-law or sister-in-law of the employee.

(2) An employee, having been employed under a contract of service with the same employer for a continuous period of 6 months and upon providing a certificate of a qualified medical practitioner, shall be granted by his or her employer a period of 5 days unpaid sick leave in a year.

(3) An employer shall not dismiss an employee or give notice of dismissal to an employee because of absence by reason of bereavement leave or sick leave permitted by this section.

(4) Where an employee is dismissed by his or her employer contrary to subsection (3), the onus of proving that the reason for dismissal is unrelated to the employees absence from work on bereavement leave or sick leave rests with the employer.

Travel costs from remote sites

43.11 Where an employer terminates the employment of an employee or lays off an employee who was employed by the employer at a remote site, the employer shall provide transportation for the employee without cost to the employee to the nearest point at which regularly scheduled transportation services are available.

(3) Notwithstanding subsections (1) and (2), the requirement that a notice shall be in writing may be waived where an employer and an employee agree to waive it.

Provisions respecting notice

56. (1) A notice of termination of a contract of service or a notice of temporary lay-off given under this Part has no effect if the contract of service continues beyond the period of expiry specified in the notice of termination or temporary lay-off.

(2) A notice of termination of a contract of service or a notice of temporary lay-off or a notice of intention to terminate a contract of service given under this Part may be given conditionally upon the happening of a future event if the period of the notice so given is not less than the period required by this Part.

(3) A complaint to the director may not be made after the expiry of 6 months from the happening of the event giving rise to it.

(3) The records required to be kept under subsection (1) shall be made available to the director, or another officer designated by the director, within 7 days of a demand served personally on the employer or 10 days from the date the demand was sent by registered mail.

Panel of adjudicators

67. (1) The Lieutenant-Governor in Council shall appoint a panel of at least 6 persons to serve as adjudicators for the purpose of this Act.

(2) Members of the panel shall be appointed for a term of 3 years and are eligible for re-appointment.

(3) A member of the panel may be removed from the panel by the Lieutenant-Governor in Council on the recommendation of the minister where the minister is satisfied that there is reason for the removal.

(4) The Lieutenant-Governor in Council may determine the rate of remuneration of the members of the panel.

(5) For the purpose of holding a hearing, an adjudicator is vested with the powers that are or may be conferred on a commissioner under the Public Enquiries Act.

(6) Except as expressly provided in this Act or the regulations, an adjudicator may regulate his or her procedure as he or she considers appropriate.

(7) Where, on the coming into force of this section, the tribunal has begun to consider, review, hear and decide upon a matter but has not given a decision, the tribunal remains seized with the matter until it gives its decision.

(8) Where, on the coming into force of this section, an application has been made to the tribunal but the tribunal has not begun to consider, review, hear and decide upon the matter that is the subject of the application, the application shall be considered to have been referred to the minister.

(2) An adjudicator shall consider, review, hear and decide upon a matter not later than 1 year from the date the matter is referred to him or her under subsection 69(1), (2) or (3).

(3) Notwithstanding subsection (2) as it reads at present, where a matter was referred to the tribunal within the 3 year period contained in subsection (2) as it read prior to the coming into force of the present subsection (2) and the tribunal had not considered, reviewed, heard and decided upon the matter prior to the expiry of the 3 year period, the rights of the complainant are preserved and the tribunal shall consider, review, hear and decide upon the matter as if the 3 year period had not expired.

(2.1) Where the director submits a complaint or a question arising from an investigation to an adjudicator appointed for that purpose by the minister, the director shall not be considered to be acting on behalf of a complainant in doing so.

(4) Where an application for review under subsection (3) relates to the payment by the applicant of wages, tips or gratuities or surcharges instead of tips or gratuities due to an employee under this Act, the applicant shall deposit with the minister at the time of making the application

and where the adjudicator decides that the wages, tips or gratuities or surcharges instead of tips or gratuities are payable to the employee, the sum, bond or other security so deposited shall, after the expiry of the period provided for in section 72 for appeal, be applied by the minister towards the satisfaction of an order made by the adjudicator.

(4) The adjudicator shall communicate his or her decision and an order made by the adjudicator under this section to the minister and the employer and employee affected by the decision or order.

Adjudicator's appointment continued

71. Notwithstanding section 67, where an adjudicator has begun to consider, review, hear and decide upon a matter that has been referred to him or her and the appointment of the adjudicator expires before he or she gives a decision, the appointment of the adjudicator, for the purpose of deciding upon that matter, shall be considered to have been extended and the adjudicator continues to have all the power conferred by this Act to consider, review, hear and decide upon that matter.

Appeal from adjudicator

72. (1) The director or a person affected and aggrieved by an order, finding or decision of an adjudicator may, within 30 days of the date of the communication made under subsection 70(4) appeal from it on a point of law or mixed fact and law to a judge of the Trial Division.

(1.1) Where the director appeals from a decision of an adjudicator under subsection (1), the director shall not be considered to be acting on behalf of a complainant in doing so.

(2) Subsection 72(2) of the Act is amended by striking out the words "or agent".

(3) Paragraph 72(3)(b) of the Act is amended by striking out the words "the Chairman of the Tribunal" and substituting the words "the adjudicator and the minister".

(4) Subsection 72(4) of the Act is repealed and the following substituted:

(4) An adjudicator shall produce before the judge prior to the hearing all papers and documents in his or her possession and affecting the matter of the appeal.

(5) Paragraph 72(5)(a) of the Act is amended by striking out the words "the Tribunal" and substituting the words "the adjudicator".

Enforcement of judge's order

74. (1) Where a person or corporation is convicted of an offence under section 73, the provincial court judge shall order the person or corporation to comply with the determination of the director or a designated officer or the order of an adjudicator or immediately to ensure that the determination of the director or designated officer or the order of the adjudicator is carried out immediately.

Proof of service

79. Where a written notice, direction, order, determination or other document is required or permitted by this Act to be served or sent to a person, production of an affidavit of personal service or a receipt from the postal authority that the notice, direction, order, determination or document was left at a post office for delivery by registered mail is, in the absence of evidence to the contrary, proof that the notice, direction, order, determination or document was served on or delivered to the person to whom it was addressed.

Calculation of wages owing

79.1 (1) Where

that unpaid wages, tips or gratuities, or surcharges paid instead of tips or gratuities, are owed to an employee, the director or adjudicator may order the employer of the employee by whom they are owed to calculate the amounts owing within the time stated in the order.

(2) Where an employer who has been ordered to calculate unpaid wages, tips or gratuities, or surcharges paid instead of tips or gratuities, fails to make the calculations within the time stated in the order, the director or an officer or another person appointed by the director or the adjudicator for the purpose may perform the calculations at the employer's expense.

(3) An employer shall pay all the expenses related to a calculation made under subsection (2) and where the employer fails to pay the expenses, they may be recovered by the director in a court as a debt due the Crown.