Posted on August 15, 2011
by Joanne Mundy, Research and Product Development Manager
Some choices we live with not only once but a thousand times over, remembering them for the rest of our lives.
- Richard Back
How often as Human Resources Professionals or Managers do we make quick decisions on the fly without considering the long term impact?
When it comes to employees, contracts, policies and procedures, it is critical that time is spent looking at the current laws, what the organization wants to do for the long haul and what the organization can financially handle. Some simple decisions such as: allowing an employee to pre-take vacation, changing a work schedule to accommodate an employee's home requirements and ignoring performance issues can have huge, long term impacts on your business.
Ruling: April 26, 2011
"Right to vacation
33.1 An employer shall give an employee a vacation of at least two weeks after each vacation entitlement year that he or she completes.
35.2 An employer shall pay vacation pay to an employee who is entitled to vacation under section 33 or 34 equal to at least 4 per cent of the wages, excluding vacation pay that the employee earned during the period for which the vacation is given."
The board ruled in favour of Brown for a wrongful termination. The employer had exceeded the Employment Standards Act, by agreeing to a greater right or benefit than the minimum standard. The employer could not act against Brown for exercising her rights.
1714717 Ontario Inc. was ordered to pay Brown termination pay along with an additional payment in damages for the employer's violation of the reprisal provisions of the Act.
Why didn't the Ontario Employment Standards Act prevail?
The Ontario Employment Standards Act did prevail because in subsection 5(2) of the act it stipulates:
"If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions of the contract or Act apply and the employment standard does not apply."
Essentially this means if an organization writes a policy, implements a practice and/or verbally commits to something that is above the minimum employment standards, they are legally required to follow through on their commitment and the new provisions become a right of employment.
What if it was a mistake?
It is true, we all make mistakes and some mistakes are easier to fix than others. The commitments that are made to employees form their employment relationship, engagement and commitment to the organization. Making a small mistake that is quickly corrected might be forgiven but making a long term mistake or a repetitive mistake can become a legal nightmare that impacts the internal environment.
Once a decision has formed part of the employment relationship, employers cannot simply change their mind. Typically fundamental changes to the employment relationship would involve ample notice and communication along with the potential risk of constructive dismissal claims.
What is constructive dismissal?
Constructive dismissal happens when an employer has made a fundamental change to the employment contract or situations that violate the rights of an employee to the point where the employee has no other alternative but to leave his or her employment even though there was no act of dismissal on the part of the employer. This could include: reducing pay, changing job responsibilities to the point where the employee is no longer able or capable of meeting performance expectations, reducing and changing agreed upon hours, making promises such as a future position and development but not following through, giving a certain level of benefits and then removing them and/or removing responsibilities from a position to the point where the employee is no longer operating at the same level.
Typically, the employee will voice their concerns and attempt to resolve the issue but when nothing has been done, they will make the decision to quit and leave their employment. Once they have left, they may pursue a claim of constructive dismissal, which if won, results in the employer having to provide all or a combination of: notice, severance, common law and/or pain and suffering payments.
How can organizations protect themselves?
Organizations can protect themselves in a variety of ways:
As professionals, we are faced with a million decisions everyday and part of being successful is being able to make quick decisions on the fly in order to keep the business moving forward. However, care and time needs to be applied when decisions are made that impact employees and potentially the organization. Prior to moving forward with decisions or fundamental policies and practices it is important to stop and consider the immediate, short term and long term impact along with any legal implications.