July 18, 2017
Stuart Ducoffe (B.C.L., LL.B.,CHRL) is a seasoned employment and labour lawyer as well as the co-founder of e2r®, which powers Ceridian HR Advisory Services. He is also a partner and co-founder of Woolgar VanWiechen Cosgriffe Ducoffe LLP and leads the firm’s employment and labour law practice. Follow @e2rSolutions on Twitter to stay up to date on Stuart and his team!
Have you had a claim filed against you or your organization? Not all employees are happy in the workplace.
Although some businesses warrant the complaints filed against them, others may be surprised to find themselves the target of a current or former employee looking for a monetary benefit.
Constructive dismissal, occupational health and safety, and human rights are among three of the most common claims filed against employers. If you’re thinking the process is too complicated for employees to act, you’re incorrect. Typically, any such claim comes at ZERO cost to the employee.
A constructive dismissal claim is defined as a unilateral and substantial change made by an employer to a fundamental term of employment without consent or without reasonable notice. This occurs when an employer may not intend to terminate the employment contract, but makes changes to terms and conditions of employment that are so fundamental that the original employment contract is considered to no longer exist, and as such, has been terminated. Some of the factors considered include:
Employers will often make changes to an employee’s duties and responsibilities in response to the employee’s poor performance.
In the event the employee does not agree with a change in duties/remuneration imposed by the employer, the employee may choose to assert that a constructive dismissal has occurred. Typically, employees are encouraged to contact their employer about their Employment Standards issue(s) before filing a complaint. Certain jurisdictions offer a Self-Help Kit to assist employees in resolving the issue informally with their employer.
Where there is no resolution, employees may elect to file a complaint with the Ministry of Labour. This process is as simple as completing an online form and comes at zero cost to the employee. As long as the employee is covered by the applicable legislation, and all information is provided by the employee, all complaints are assigned to an officer and investigated. If the officer finds that a constructive dismissal has occurred, the employer is required to pay termination and/or severance pay to the employee.
Employers have a legal obligation to maintain the health and safety of all employees in their organization. Occupational health and safety legislation also incorporates certain protections regarding violence, bullying and harassment.
Most jurisdictions require employers to develop policies regarding violence, bullying and harassment, which must incorporate complaint mechanisms and investigation options. The legislation typically also protects employees against employer conduct designed to penalize the employee for having raised an issue of potential harassment/bullying. This is referred to as a reprisal action.
When an individual receives a poor performance appraisal and perceives they are at risk of having their employment terminated, they may re-commit themselves to their duties… or they may file claims with the appropriate government agency alleging bullying/harassment. In this way, the employee can claim the employer’s response to the employee’s poor performance was based, at least in part, on the claim of bullying/harassment and therefore a reprisal action. Such claims can be filed online and in all cases at no cost to the employee.
Human rights legislation in Canada provides for equal treatment without discrimination on several legislatively protected grounds. The protected grounds vary by jurisdiction but typically include:
The most prevalent claim in the context of employment is a claim of discrimination based on disability (medical issues). Where disability is alleged by an employee, the employer is required to accommodate the employee’s disability up to undue hardship to the employer.
It is not difficult for an employee to obtain and provide to their employer a certification of a medical condition. This can be done with a view to claiming that any poor performance is attributable, at least in part, to the medical condition. By doing so, the employee is saying to the employer that the employer must accommodate the employee’s poor performance. Where the employer fails to do so, the employee can file a complaint.
Such complaints can typically be filed online with the applicable Human Rights Tribunal/Commission and at no cost to the employee. Even if the employer elects to oppose the claim, proceed to a hearing, and wins, the employer will not be awarded any costs and the employee will not have to pay anything.
Implementing positive employee practices such as performance management programs will serve to enhance employee engagement and productivity. To the extent this isn’t sufficient motivation for employers to implement these practices, the fact that employees can so easily and at no cost file complaints against employers should cause employers to pause and recognize how this should be a priority.