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Your Workplace Rights Primer

Column which ran in the

1872 witnessed the first Labour Day parade ever, right here in Toronto—hardly a worker’s paradise back then. In fact it was still a crime to be a member of a union, under the law of criminal conspiracy. That initial parade called for the release of 24 imprisoned leaders of the Toronto Typographical Union, on strike to secure the nine-hour working day!

Thankfully, workplace laws and employee rights have evolved radically since those Draconian days. Today legislation covers all areas of the employment realm. So what are some of the key developments that we should be aware of?

According to employment lawyer Jeffrey Goodman, a partner at the national firm Heenan Blaikie, the Employment Standards Act (ESA) is the key piece of legislation to keep your eyes on. It outlines the rights and responsibilities of employees and employers in Ontario workplaces.

The ESA covers minimum standards in such areas as hours of work, wages, vacation, termination and severance, pregnancy and parental leave, plus other key issues.

The influence of this act continues to grow. For instance, “It has become compulsory to place the ESA’s poster in plain sight of employees for workplaces covered by this legislation,” says Goodman. He adds that no employee can be forced to give up the minimum rights stipulated in the statue, regardless of what contract they might sign with their employer.

There are exceptions to coverage, such as managers and supervisory staff. Details are spelled out at the Ontario Ministry of Labour’s website, at http://www.gov.on.ca/lab/english/es.

There is, however, a broad misconception that salaried employees, regardless of their position, are automatically excluded from the ESA. “An Executive Assistant earning $45,000 a year would still be entitled to overtime after working 44 hour weeks consistently,” adds Goodman.

How would someone in that situation seek redress? They could start by making a claim to the Employment Standards Branch of the Ontario Ministry of Labour. You don’t need a lawyer there and turnaround times are relatively quick. However, Goodman cautions that this route allows for maximum monetary awards of $10,000, so if you expect your claim to be higher you may need to hire a good employment lawyer and take the case to court.

There are, of course, other statutes governing the workplace. Related Ontario laws include the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, the Labour Relations Act, the Pay Equity Act and the Human Rights Act. Not to mention the federal laws such as the Canada Labour Code.

Sound like a potential minefield of rules and regulations to be aware of? The good news is you don’t have to worry about your statutory rights since they’re guaranteed, says Norm Grosman, a Partner in Toronto’s Grosman Grosman and Gale. “Most of our clients are concerned about changes in the terms and conditions of their employment. They want to know what steps the employer can make without interrupting the employment relationship, with respect to responsibilities, title, reporting lines and related areas.”

Grosman, an author, has been in the legal profession for more than 20 years, and writes a regular column on employment law for Workopolis.com. He encourages people to be aware of their basic rights, but recommends that you not try to deal with complex issues on your own. Reading the statutes is fine, but “a little bit of legal knowledge can be a dangerous thing, especially when dealing with career decisions,” Grosman says.

He points to the Employment Standards Act as a typical document that outlines your fundamental entitlements only. “Even a full reading will only give you a partial picture,” adds Grosman. “The Act covers statutory principles which the Ontario legislature has passed into law. It does not include the many nuances covered by common law, decided by the courts.”

That being the case, where can the average employee turn for information regarding their workplace rights?

Going online is a great beginning. Here are some of the better Canadian sites with information about employment law and entitlements:

Directory Of Labour Organization s. These are groups who represent organized labour in the country. You can also find links to resources geared to employee advocacy. www.labour-travail.hrdc-drhc.gc.ca/millieudetravail_workplace/ot_lo/index.cfm/doc/english

Employment Law Information. A collection of highlights covering various areas of legislation, such as wrongful dismissal, hiring and human rights, employee liability, discrimination, harassment and more. www.grosman.com/legalinfoindex.html

Federal Labour Legislation. From Human Resources Development Canada. Includes the Canada Labour Code, Employment Equity Act, and Fair Wages and Hours of Labour Act. http://info.load-otea.hrdc-drhc.gc.ca/federal_legislation

Find an Employment Lawyer. From LegalLine.ca, a non-profit organization whose mission is to provide Ontario residents with free, easy to understand legal information. Go to www.legalline.ca, click on "Find A Lawyer", then for "Area of Law" choose "Employment Law", and select the desired location.

WorkRights Canada. From the Canadian Labour Congress. Useful information on getting paid, health and safety, human rights, losing a job, making a complaint, taking time off and work hours. www.workrights.ca

You can always use the telephone too. For more information about Employment Standards, call the Ontario Ministry of Labour’s Information Centre at 416-326-7160 or 1-800-531-5551. As for federal laws affecting workplaces, call the Government of Canada information line at 1-800-622-6232.

Here’s another alternative: for $6, the Upper Canada Law Society’s “Lawyer Referral Service” will provide the name of an employment lawyer who will provide you with up to 30 minutes free consultation to help you determine your rights and options. You can access the service by calling1-900-565-4577.

Beyond knowing where to find the right information and get advice, it is interesting to note some of the recent trends in employment law. One important shift is in the efforts of our judicial system to redress the inherent power imbalance between employer and employee.

According to Goodman, “The employer has historically held greater influence, so the courts are now trying to interpret statutes in favour of employees.”

An example of this is the Wallace vs. United Grain Growers case, which established that employers have an obligation to terminate fairly and in good faith. In other words, you can’t be fired on some drummed up pretext just so your employer can avoid the statutory minimums in terms of severance and notice.

Grosman agrees, adding that “it is becoming more difficult to terminate for cause, as courts are holding employers to a higher threshold of proof.” In Mckinley vs. BC Telephone, the company fired Mckinley for cause. Even though he hadn’t been entirely honest about his medical condition, neglecting to inform his employer that his hypertension could be alleviated by medication, the court found that the company overreacted. BC Telephone had to compensate McKinley for damages in lieu of notice.

While this is a positive sign for employee rights, Grosman notes that “the perception of employers is now that the deck is stacked in favour of employees, and vice versa. As it stands, they are both partially right, depending on the segment of a particular act being dealt with.”

All in all, it seems we're still not at the point where every side is satisfied with their entitlements. Then again, we’ve come a very long way since our labour leaders were kept in jail for demanding basic rights.

Mark Swartz, MBA, M.Ed., is a speaker, career coach and author. He can be reached via e-mail. The above article may contain material not included in the edited version.

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