Section 4 - Protecting Worker's Rights

Lesson 17 - Rights and Responsibilities on the Job

You've been through the hiring process, and you've got the job. What are your rights and responsibilities-and those of your employer-now? In this lesson you'll look briefly at some of the laws that affect what goes on at the workplace.

Employees' Responsibilities

Like employers, employees have responsibilities. According to the common law, an employee has a responsibility to

be punctual and take only permitted leaves of absence
obey orders as long as they're legal and not unreasonable
be loyal, honest, and competent

A business will often have a code of ethics that it wants its employees to follow. In addition, there may also be a dress code and a code of conduct; these may be included in a contract of employment. If so, violation of these codes may be considered grounds for an official reprimand or even dismissal.

Some employment contracts contain what's called a non-competition clause (or a restrictive covenant). Under clauses of this sort, an employee agrees not to set up a competing business within a certain geographic area for a stipulated length of time should his or her job with the current employer come to an end.

Clauses like this are included to make sure a person doesn't come to work for someone just long enough to learn the business and then set up a competing business down the street. Employees who sign non-competition clauses undertake the responsibility to abide by them, though such clauses are always subject to review by the courts to make sure they don't restrict the employees' rights unfairly.

Non-competition clause: a clause in an employment contract designed to limit competition, usually by restricting where and when an employee may work after leaving the current employer

Test Yourself:

Sandra has been employed in a small town as a hairstylist with Giselle's Beauty Shoppe for the past three years. Sandra has quite a large client base, and many customers won't have anyone else at Giselle's touch their hair. As a result, Sandra has decided to open her own salon in the same town.
1. How will this affect Giselle's business?
2. What could Giselle have done to prevent this?

Turn to the Suggested Answers at the end of this lesson and compare your answers with the ones given there.

Equality on the Job

You have already seen in this course how laws like Alberta's Human Rights, Citizenship and Multiculturalism Act work to ensure that during the hiring process employers can't discriminate against applicants on the basis of factors like race, age, and gender . Of course once on the job, workers continue to need protection against unfair treatment. Probably the type of on-the-job discrimination people hear about most often these days is sexual discrimination.

It certainly is true that gender discrimination like this is all too common, but the situation has improved greatly in recent years, thanks in large part to human rights and civil-rights legislation. For example, Alberta's Human Rights, Citizenship and Multiculturalism Act prohibits employers from paying their employees of one gender at a lower rate from those of the other gender for work that's substantially the same.

Test Yourself:

Radmila, an apprentice cabinetmaker, became upset when her employer gave her too many menial tasks to do, restricted her professional training, and paid her less than her male colleagues. Could she successfully file a complaint with the Alberta Human Rights and Citizenship Commission? Explain your answer.

Turn to the Suggested Answers at the end of this lesson and compare your answers with the ones given there.

Sexual harassment is a work-site problem you're probably well aware of. Alberta's Human Rights and Citizenship commission considers harassment on the basis of gender to be a violation of the Human Rights, Citizenship and Multiculturalism Act.

Another sort of harassment, sometimes called quid pro quo harassment (from the Latin meaning "something for something"), occurs when a boss uses his or her power to get favours from employees-often sexual favours.

Test Yourself:

Iona went to work in a warehouse and discovered that she was the first woman ever to be employed there. She quickly began to sense that the other employees resented her presence. They were rude to her, never included her in coffee-break card games, and went out of their way to isolate her. What sort of harassment is this - quid pro quo or poisoned work environment?
Brad's boss, Ms. Meier, called him into her office one day and, in the course of a conversation, let him know that she wanted him to accompany her to a party that Saturday as her date. Two implications were all too plain to Brad; this would be just the beginning of further "requests" of this sort and, if Brad refused, his career in that company was probably over.

Identify the type of harassment here and explain what Brad could do about it.

Turn to the Suggested Answers at the end of this lesson and compare your answers with the ones given there.

Harassment: unwelcome behaviour toward another (who is often in a subordinate position)

Quid pro quo harassment: employment harassment that involves a person in a position of authority demanding favours in return for fair or preferential treatment.

Poisoned work environment: employment environment in which one person is subjected to hostility and rejection by coworkers because of some perceived difference

Wrongful Dismissal

Wrongful dismissal is the legal term used when an employee is let go by his or her employer without receiving proper notice or when some other aspect of employment law is broken. If an employee takes a former employer to court for wrongful dismissal, the court will usually look for two factors:

First, the court checks to see if "reasonable notice" was given. This means essentially that the Employment Standards Code was followed, but sometimes the court will decide for itself what "reasonable notice" is. At the very minimum it must live up to the terms stipulated in the statute; but if an employee has worked for a company for many years, or had a position of responsibility-or if there are other factors in play-the court may decide that even more notice should have been given. The courts tend to regard the Code as only outlining the minimum standards that must be met.
Second, the court looks to see if there was "just cause" to dismiss the worker. If, for example, an employee were stealing from the company, regularly coming to work drunk, or always insolent and unwilling to carry out orders, the court might decide that the normal notice wasn't necessary.

Wrongful dismissal: the termination of employment by an employer either without just cause or without giving reasonable notice

Case Study: $7,500 Awarded and Clean Record of Employment-Pass the Buck

Greg was 23 years old, earned $32,000.00 per year and was employed for almost two years with three week's vacation at the time of dismissal.

It was verified that Greg had no previous verbal or written warnings. The company did have a written policy around computer usage and email, however, neglected to train or have a sign-off from its employees. The information was posted on the company's website buried in a 250-page employee manual.

After a couple of phone calls to Greg's former employer identifying the potential for wrongful dismissal, two weeks later they agreed to pay a lump sum of 12 weeks for damages. This payout constituted two week's notice and 10 week's severance with vacation pay of 4% on the notice. They also agreed to continue benefit coverage for the twelve week time period. Had Greg been let go without cause, based on his service, his employer would have had to provide notice or pay in lieu of notice of two (2) weeks as a minimum and provided benefits during this time. The Record of Employment (ROE) was re-issued in a manner that allowed a favorable review to be eligible for EI benefits. The employer also agreed to provide a positive reference for Greg and the reason for dismissal would be communicated as downsizing.

Here are the details:

Greg was employed by a large bearing manufacturer in an entry level administrative position following graduation from University.
Greg received an e-mail that contained disparaging remarks about the company and particular managers.
He forwarded this message to a co-worker commenting how bad it was and someone was in for it.
Following an investigation launched by the company several employees who were identified as participating in spreading this communication were dismissed for cause including Greg.
The company claimed in Greg's termination letter that they had a zero tolerance policy on misuse of the company's technology .
They claimed that Greg had deliberately maligned the company and its employees based on his actions.
Greg was not provided any notice or severance provision based on being terminated for cause; he was paid out vacation pay.
In addition the Record of Employment to be issued would indicate "Fired" and the company would go on to report to Employment Insurance that Greg contributed to his termination by his own actions and was in gross breach of company policy.
It was likely that Greg would not be eligible for Employment Insurance benefits based on being terminated with cause.

Something to think about: If you were Greg's employer, would you have terminated his employment? Why or why not?

What if someone's trying hard but he or she just can't do the job? Does reasonable notice have to be given?

The courts will sometimes consider incompetence to be "just cause," but it has to be pretty severe. If it's not, the courts will insist on reasonable notice.

What is the Employment Standards Act ?

The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and responsibilities under the Act.

Most employees are covered by the provincial legislation. However, employees working in industries that fall under Federal jurisdiction, such as, Post Offices, Banks, Railways, Radio Stations, Airlines, Television Stations etc. are not covered.

If you are a member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.

If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.

Constructive dismissal is not defined in the Act per se; however, "employee quit" is accepted in the constructive dismissal. Its concept is relevant when determining employee's entitlement for:

notice of termination or pay in lieu of notice and
severance pay entitlements

For the employee to be entitled to termination and severance pay in constructive dismissal, the "quit" must be due to unilateral change in a fundamental term of employment by the employer. The change must be very much to the employee's disadvantage.

The Act provides minimum standards of protection. Except in certain cases-such as pregnancy leave, reprisal etc., the Act does not give job security protection. Otherwise, the only thing an employee is entitled to is notice of termination and/or severance pay.

The Act does not require the employer to provide cause or reason for the change in the contract of employment as long as the proper notice is given for dismissal or change. Sometimes the notice for change can serve as a notice of termination.

Constructive dismissal can occur in the following situations:

Ultimatum to resign or else be dismissed.
Harassment to the degree that further employment becomes intolerable or dangerous.
Breach or repudiation of fundamental contract by employer.
Anticipatory breach of fundamental term by employer.
Unilateral and significant changes to the employment contract.

Case Study - Constructive Dismissal

The employee was a chef at the employer's restaurant. He took an authorized six week leave of absence to travel. In a telephone conversation with the employer upon his return, the employee understood that he was no longer employed at the restaurant. During the telephone conversation, the employer suggested that the two "part company". The employer further stated to the employee "you quit or you're not coming back", the employee replied, "no problem". The employer understood the employee to have agreed and therefore to have resigned. The employer refused to pay termination pay.

The employee filed a claim with the Ministry of Labour for termination pay.

The Employment Standards Officer investigating the claim found him to be entitled to termination pay and issued an Order to Pay against the employer.

The employer appealed the Officer's decision with the Ontario Labour Relations Board. The referee found that the employer's action constituted constructive dismissal. The fact that the employee did not protest and did not attempt to persuade the employer to continue to employ him does not change the fact that the employee was terminated.

Test Yourself:

6. Duane was reasonably competent at his job. Unfortunately, however, he seemed to irritate everyone around him, including his employer, Mr. Hathiramani. To get Duane to quit his job, Mr. Hathiramani began to give him tasks he just couldn't do and insisted that they be done in short order. When this didn't work, he demoted Duane and transferred him to a part of the plant where he knew his allergic sensitivities to chemicals would make his life miserable.

As a result, Duane did quit his job, but he took Mr. Hathiramani to court for wrongful dismissal. Would Duane be likely to win the case? Explain your answer.

Turn to the Suggested Answers at the end of this lesson and compare your answer with the one given there.

Constructive dismissal: the forcing of an employee to resign through tactics like demotion, unreasonable job demands, and transferral to a less-desirable location.

Lesson 17: Rights and Responsibilities on the Job

Legal Studies 1010

Section 4 - Protecting Worker's Rights

Lesson 17 - Rights and Responsibilities on the Job

Employees' Responsibilities

Test Yourself:

Equality on the Job

Test Yourself:

Test Yourself:

Wrongful Dismissal

Case Study: $7,500 Awarded and Clean Record of Employment-Pass the Buck

What is the Employment Standards Act ?

Case Study - Constructive Dismissal

Test Yourself:

Suggested Answers