Employment Law In Canada: Solutions For Common Workplace Issues

Employee Training

Question:

Discuss about the Social Media Dilemmas in Employment Context.

On the facts here, the cashier who has been working for the company for 25 years have been concerned about the changes that were implemented within the company. She found the training to be difficult and stressful but was furious when she learnt about not including her for training as well. Although the employer has assured her that she will not have to attend the training as she is 64 years old and is about to retire which will also save little expenses of the company, the employee threatened to initiate legal action against the company.

Employers are entitled to reorganize or manage the workplace as they deem fit, which includes the right to change business processes and introduce new and advanced technology of operation (Walsh 2015). If an employer orders to subject the employees to training, such order is justified. A refusal to abide by the order shall amount to insubordination under the Canadian Employment Law. However, if the employer persists to permit the employee to work despite such refusal from the employee, it shall not amount to insubordination.

Employees who have been in an organization for a long time also requires job challenges and often the employers provide change in their job positions as per the changing needs, abilities and preferences of the employees (Canada 2018). Such employment opportunities to work in other position for a period shall enable them to learn new skills and receive appreciation from their colleagues as well.

In this case, as an employer it was unlikely to state that the employee who has been serving the company for 25 years that she was not about to be sent for training on the ground that she would retire soon and would save a little expense of the company.

However, considering the fact that she believed that training would be difficult and stressful for her, it would be appropriate for the employer to ensure that the cashier is provided with an alternate position that suffices her needs, preferences and ability. If any further training is required for the same, it must be assured to her that such training is not difficult and stressful for her.

The reason for resorting to the stated solution is that the old workers usually tend to be loyal to the company if their efforts are appreciated. Training is an element of retention for all employees including the older workers as well and it supports success, as the employees are able to see themselves improving within the organization. The training will make the employee believe that the company appreciates her effort and wishes her to continue with the company. This might make change her mind from initiating any legal actions (Minken Employment Lawyers 2018).

Privacy and Monitoring

As per the facts, the researcher supposedly become addicted to social networking sites and spends most of his time on social media during his working hours. In order to obtain sufficient evidence against the employee, the employer wishes to monitor his work by installing software.

The Personal Information Protection and Electronic Documents Act [PIPEDA] governs the privacy of employees that safeguards the information of employees from being subjected to scrutiny by the managers. In Canada, each province has its own legislations and employers are required to comply with the individual provincial rules. The issue in this case may be addressed by two ways. Firstly, background checks can be conducted during recruitment which though may seem to be invasion of privacy but such process is construed as a necessary ground of due diligence.

Secondly, since employee monitoring has not become a common practice in Canada and is practiced by very less companies. However, in order to install software that will put the workplace under constant surveillance and recordings, the employers must disclose the fact to the employees of the organization. The employees should also be notified of the fact that the company may utilize such recordings or footages for safety or disciplinary purposes.

In the landmark case of Jones v Tsige [2012], Ontario Court of Appeal upheld legal protection of the rights of the individuals from any unreasonable interference into their personal life.

On the facts here, the most appropriate solution would be to inform the employees about the installation of the software for monitoring and surveillance and that such recordings or footages shall be used for disciplinary or safety purposes.

As was held in the Jones’s case, the PIPEDA legislation has been enacted to safeguard the privacy of the individual and that any invasion of privacy shall result in legal proceedings, which wuld futher affect the reputation of the company as well. Hence, apart from abiding by the laws of the relevant provincial laws, it is appropriate to monitor the performance of the employee using technology by notifying them about the same.

In the given case scenario, the employee to be hired has left a major competitor of the present company and had to be offered significant incentive. The employee moved halfway across the country to join the present company and wishes to continue here until her retirement but the company promised to continue with her for minimum 5 years. Hence, an employment contract must be drafted that secures the position of the employers if the employee is not satisfied with the company or even after making changes in the contract.

Employment Contracts

The employment contracts either can be indefinite duration employment contracts or fixed term employment contracts. Indefinite duration contracts can be entered into if the employment is one of continuous service and is intended to last for an indefinite period without any specified end to the relationship. The employer is required to serve termination notice. Fixed term employment contracts may be used if the employment relationship is intended to last for a definite time until the completion of the specific project. No termination notice need to be served as the employment ends with the completion of the project (Lam 2016).

The employment contracts must include express or implied terms and conditions including the rights and obligations of the employers and the employees. It must include special considerations or promises that have been promised verbally prior to the joining of the company. The terms and conditions should not be illegal or unconscionable.

In order to make any ‘fundamental changes’ to an employment contract in terms of reduction in salary, geographical relocation or any significant changes in the roles and responsibilities of the employees, the employer must notify the employee about the same.

The employer must obtain consent of the employees in writing and must include an exchange of valuable consideration such as monetary signing bonus etc to make the contract binding and legally enforceable. As was held in Wonko v Western Inventory Services Ltd. [2008], the employee may accept the change or reject the contract on constructive dismissal ground or reject the change and continue with previously established employment terms unless employer terminates the employee (Lam 2016).

As per the Employment Standards Act, the employer may terminate the employee by providing adequate notice period or pay instead or the employer may accept that no fundamental changes were made in the contract and continue on existing terms.

On the facts here, the most appropriate type of employment contract would be fixed-term contract if the company wishes to continue with her for 5 years as then no termination notice is required to be served as termination would come to an effect after completion of the project. In case of any amendment in the contract, the changes should be made after obtaining consent from the employee and the amended contract must include consideration or monetary benefit for signing and accepting the amended contract. It will make the contract valid and enforceable.

This solution shall address the concerned issue as fixed term contracts are appropriate for contracts valid for definite period. The consent of the employee is required otherwise; she may reject the amended contract and initiate legal action on the grounds of constructive dismissal for making changes without her consent as was held in Wonka’s case.

Dismissal on the Grounds of Chronic Lateness

On the facts here, the employee is a good-performer but has only one complaint regarding her chronic lateness at work. However, the employer could not inform or warn her about her lateness as she remains very busy but he wishes to dismiss her on such ground.

In Canada, several employers have attendance policies non-complying which may amount to serious breach of employee’s obligation towards the employer. In the absence of a formal attendance policy, even chronic lateness amounts to breach of employee obligations. An employer may dismiss an employee on the grounds of chronic lateness if such ground is established as a just cause of dismissal (Arnow-Richman 2014). To establish the ground to be a just cause, the employer must keep record of all the documents of warnings give to the employee regarding the matter as was held in Cardenas v Canada Dry Ltd [1985].

However, the dismissal shall amount to unjustified termination if the employer fails to undertake consistent and prompt action in the event of chronic lateness on part of the employees as was held in Cain v Roluf’s Ltd [1998] O.J. No. 661 (Gen. Div). The court held that the employer tolerated the misconduct of the employee for a long time without providing adequate and consistent warning letters for the same.

In this case, the appropriate solution would be to provide adequate and consistent warning letters to the employee notifying her about her chronic lateness. Since she had said that her reason for being late is her sickness, it would be better if the employer asked her to provide all medical prescriptions related to her sickness as it can be used as an evidence.

If even after the warnings, the employee continues to remain late and fails to provide and adequate medical evidence, it would be a just cause to dismiss the employee on ground of lateness as was held in Cardena’s case. However, the employer must keep a record of all the documents of warnings to use it as an evidence to prevent the dismissal from being held as unjustified as was observed in Cain’s case.

The employee was promoted to Manager of the Product Development Lab based on his good performance. However, after being promoted he fails to carry out his responsibilities and is terrible with people, caused loss of 7 good employees and have resulted in deterioration in productivity and performance. The company faced three human rights complaints, and despite being constantly warned about his behavior even in writing, the employee does not change his behavior stating he is unable to deal with people properly. The company wishes to dismiss the employee.

Under the Canadian Employment Law, an employer may dismiss an employee on the grounds of incompetency. Incompetence implies lack of ability to meet a required standard or lack of attentiveness or negligence of the employee.

An employer must establish that termination on grounds of incompetency is a justified cause. The employer must establish that the employee has been provided with warnings and despite such warnings, the deficiency in the performance of the employee was severe and it was detrimental for the business.

In Boulet v Federated Co-operatives Ltd [2001], it was held that the employer must establish that the deficiency in the performance of the employee was fault of the employee and was not beyond his control.

Further, the employer must establish that an employer did not know that the employee did not have the required skill while recruiting the employee or transferred to perform such role. The dismissal was not based on any single incident of incompetence but some other form of willful misconduct that significantly enhanced the incompetency of the employee significantly (Bratton and Gold 2017).

In this case, the employer may dismiss the employee on the ground of incompetency and establish it is a just cause by stating that the employee was provided with warnings in writing. Despite such warnings, though he fulfilled his responsibilities, but his other willful misconduct resulted in the loss of 7 employees and affected the productivity and performance of the company.

The dismissal can be established as a just cause because the employee was promoted based on his performance and he was considered best at getting work done. Moreover, he spent most of his time in supervising and disciplining the employees and has affected the business, which amounts to incompetency to meet the required standard of which he was already notified as was held in Boulet’s case.

References

Arnow-Richman, R., 2014. Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination. Fla. L. Rev., 66, p.1513.

Boulet v Federated Co-operatives Ltd [2001] MBQB 174

Bratton, J. and Gold, J., 2017. Human resource management: theory and practice. Palgrave.

Cain v Roluf’s Ltd [1998] O.J. No. 661 (Gen. Div)

Canada, E. (2018). Age-friendly workplaces: Promoting older worker participation - Canada.ca. [online] Canada.ca. Available at: https://www.canada.ca/en/employment-social-development/corporate/seniors/forum/older-worker-participation.html [Accessed 5 Apr. 2018].

Cardenas v Canada Dry Ltd [1985] O.J. No. 1724 (Dist. Ct.).

employment law in Canada: provincially regulated employers. (2018). [ebook] Available at: https://www.mcmillan.ca/files/Employment%20Law%20in%20Canada%20-%20provincially%20regulated%20employers.pdf [Accessed 5 Apr. 2018].

Jones v Tsige [2012] 108 O.R. (3d) 241 ONCA 32

Lam, H., 2016. Social media dilemmas in the employment context. Employee Relations, 38(3), pp.420-437.

Minken Employment Lawyers. (2018). Employment Contracts Fundamentals in Canadian Law. [online] Available at: https://www.minkenemploymentlawyers.com/employment-law-issues/employment-contracts/ [Accessed 5 Apr. 2018].

Personal Information Protection and Electronic Documents Act [PIPEDA]

Snell, S.A., Morris, S. and Bohlander, G.W., 2015. Managing human resources. Nelson Education.

Walsh, D.J., 2015. Employment law for human resource practice. Nelson Education.

Wonko v Western Inventory Services Ltd. [2008] ON CA 327