October 4, 2014
Seven Myths of Employment Law
There is an old saying that “a little knowledge is a dangerous thing”. In practicing employment and labour law, we find that a little knowledge often leads to a greater degree of misapprehension between employees and employers regarding workplace entitlements. In 2010 we prepared a corporate bulletin based on the top 7 commonly held myths of employment law that continue to hold true today and that many of our client’s continue to maintain. In contemplating a topic for this months’ bulletin it dawned on me that a refresher was in order. So back by popular demand, here are 7 (there are many more) common myths of “employment law”:
- Compliance with the Employment Standards Act 2000 statutory minimum entitlements on termination means no wrongful dismissal claims. This is incorrect. Unless you have a valid enforceable employment agreement that contains a termination provision limiting the employee’s entitlement to the statutory minimums you remain exposed to a wrongful/constructive dismissal claim for common law reasonable notice of termination or pay in lieu thereof.
- An employee is entitled to one months’ notice of termination per year of service. This is incorrect. In the absence of a valid enforceable termination provision contained in an employment agreement, an employee is entitled to common law reasonable notice of termination (including the statutory minimum entitlements) subject to the employee’s ability to secure alternative employment. Length of service is only one factor to be considered in determining notice in addition to position, age, duties, responsibilities, economic climate, etc. There is no rule of thumb or judicial formula for determining notice. Notice is determined on a case by case basis.
- An employer can never discriminate against an employee. This is incorrect. An employer can make decisions in managing the workforce with regard to an employee’s personality, attitude and, yes, even whether one has piercings or visible tattoos (for none faith based reasons). An employer cannot discriminate against an individual based on the grounds set out in human rights legislation such as: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
- Absenteeism leads to termination for legal cause without any further obligation. This is incorrect. Innocent absenteeism relating to illness, legitimate leaves of absence and human rights related issues are not generally culpable (fault based) attracting discipline or termination. Rather innocent absenteeism may require some form of accommodation and is not generally grounds for a just cause termination.
- No written contract means there are no terms governing the employment relationship = no problem. A contract can be written or verbal. Where there is no written contract, the law implies terms into a contract of employment – terms such as obligations on termination; human rights obligations; the obligation of good faith. An employment contract that is written actually clarifies the obligations and rights between the parties and often takes the guesswork out of the relationship, providing clarity and a viable means of managing risk.
- If my employee is on a successive year to year contract, I have no obligation to provide notice of termination. This is incorrect. Where an employer simply renews a “year to year contract over a period of successive years, the law may imply an obligation on the employer to provide common law reasonable notice of termination or pay in lieu thereof. An employer will not be permitted to circumvent their notice obligations under the guise of a year to year fixed term contract.
- I can terminate for any reason during the probationary period and pay nothing. Wrong! Termination during the first 90 days of employment requires no notice or pay in lieu thereof under the Employment Standards Act 2000. However, an employee may still have a claim for common law notice of termination or pay in lieu thereof. Furthermore, human rights obligations to accommodate begin on the first day of the employment relationship.