Canadian Employment Law Today

Canadian HR Reporter, 2020 4 The battle of rights between employees and employers THE BATTLE of rights, mine versus yours, has been a longstanding conflict. Understanding the essence of those rights is as important as the changes those rights undergo. This battle of rights between employers and employees has been similarly continuing to rage. In fact, it was, as many Hegelians and Marxists would say, the catalyst that brought about workers' revolutions and the union- ized workforce. Despite many changes in worker rights and the landscape of the workplace in gen- eral, today's employers and employees echo disputes of the past and remain arguably dia- metrically opposed. The good news is that, in the 21 st century, there has been a rise of entrepreneurs who simply do not want it all. An increasing num- ber of companies are relying on management tools and techniques designed to bring them closer to their workforce in an effort to lead change from the bottom up. More compa- nies are relying on tools such as Six Sigma, Lean Six Sigma, Agile and other diagnostic and self-improvement tools that allow for better integration of goals and duties for em- ployees. While employment agreements and com- pany policies typically establish rights and obligations, there remain intricacies and un- expected events that may lead to grey areas that are not captured even by the most com- prehensive of policies. The current pandemic has left many feel- ing uncertain. Is my business going to stay afloat? Am I going to have a job next week? Am I going to get laid off? Will I need to lay off my employees? Employers and employees alike are at a heightened stage of panic, and while some have had decades to develop a contingency plan, many of those plans go out the window when panic strikes. Reasonableness and sympathy considering the current climate Most employers are not inherently evil, just as most employees are not inherently bad. Be- neath the surface of most decisions, there is more than meets the eye. We have received calls from employees who had no basis for constructive dismissal claims attempting to sever their relationship, for no reason, from their employer during the pandemic. We have also received calls from employ- ers attempting to cut their workforce without paying minimum termination pay entitle- ments to employees. On its face, both sides appear to be acting unfairly and taking advantage of the other. On a closer examination, the employee who wanted to sever their relationship was making the same amount of money at their work as they would be receiving under the Canadian Emergency Response Benefit (CERB). The employer who did not want to pay the full termination pay wanted to use that mon- ey to buy a new business to rehire its previous employees. There are instances where employees may feel their employer was sympathetic in cer- tain situations but then claim that the em- ployer is unreasonable in others. Conversely, employees may be sympathetic to their em- ployer for the difficulties they are experienc- ing while at the same time making unreason- able demands. To illustrate, while some employers have provided flexible working arrangements for their employees with family obligations dur- ing the pandemic, those same employers have reduced their pay by as much as 50 per cent and expect the same level of output. While the employer may believe it's being flexible and providing accommodation, it's abusing its position and the climate to get away with the otherwise unlawful wage reduction. Some employers are cutting corners to remain profitable, without considering the unrealistic goals the business may have pre- viously had. There are also employers who have little to no regard about the health and safety, including physical and mental, of their employees. Further problems occur when employers change contracts mid-stream. By changing employment terms without notice or consid- eration (an added benefit for the employee), employees may sense their position is at risk, along with all the benefits they received. In a climate where employees may not have options for alternative employment, some employers are relying on the limited options some employees have and exploiting this vulnerability under the guise of the "uncer- tain environment." Employers should be mindful to act rea- sonably despite the current pandemic. Even in the absence of case law, employers should lean toward reasonableness now more than ever. Even if, subjectively, they believe they can justify exploitation here and there, a reasonable person in their shoes may in fact look to doing what is right, even if no one is watching. Uncertainty of jobs and business viability With many Canadians losing their jobs or be- ing laid off during the pandemic, employees generally feel uncertainty regarding their em- ployment and the job market. Many likely feel that they are walking on eggshells, while oth- ers are wondering whether they will be next. Employers should take the time to be open and honest with their employees about what is going on with the company — this can help foster a healthy, transparent workplace environment where the team is on the same page. Employers should be mindful of the cur- rent common fears many employees have. While it is incumbent on employers to make sure their companies are producing, they must remain reasonable when it comes to the limits in a market where players are hold- ing on dearly to their cash. Employees may CASE IN POINT: EMPLOYMENT STANDARDS "The liberty of the citizen ends where the liberty of another citizen begins." Victor Hugo said those words to describe the conflict between the rights of individuals when they overlap. In the workplace, a similar conflict can happen when the rights of employees come up against the rights of employers. Employment and human rights lawyer Christopher Achkar discusses the battle between these rights and how it has come into focus during the pandemic, when everyone is facing difficulties. BACKGROUND Where employees may not have options for alternative employment, some employers are exploiting this vulnerability. BY CHRISTOPHER ACHKAR The pandemic has caused difficulties for both employers and employees, making it a delicate balance between the rights of both

• Cover