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Chapter 13

ADMS 2600 Chapter 13 notes.docx

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Department
Administrative Studies
Course
ADMS 2600
Professor
Sung Kwon
Semester
Fall

Description
Chapter 13:Employee Rights and Discipline Rights of employees are those described in the employment contract, but is a very incomplete description  many employment contracts are not written down but are oral contracts, so the precise terms may not be obvious to the employee or the employer  many important aspects of the employment relationship appear in the form of customs or practices rather than as noted contract terms  common law judges have long shaped the scope of the employment contract by ―implying‖ contract terms o ―Implied‖ contract terms may not be known to either party to the contract but are nevertheless treated by the courts as enforceable contract terms  employment contracts may be limited, altered, or voided by a range of employment legislation through which the government intervenes in the employment relationship The Three Regimes of Employment Law  common law  statutory regulation  collective bargaining and arbitration law The Common Law of Employment - huge body of ―case law‖ compiled that considers the meaning and application of employment contracts to an endless array of employment scenarios - common law judges have developed a long list of implied contract terms that are incorporated into all employment contracts, unless a written term in the contract overrides the implied term Important terms courts have implied into employment contracts include the following:  Obligation of the employer and the employee to provide reasonable notice that they are terminating the contract  Obligation on the employer to maintain a safe workplace  Obligation on the employer to treat employees with decency, civility, respect, and dignity  Obligation on the employee to serve the employer with loyalty and fidelity  Obligation on the employee to perform competently  Obligation on the employee to advance the employer's economic interests  Obligation on the employee to avoid insubordination and insolence Statutory Employment Regulation employment equity legislation - addresses systemic discrimination against women, Aboriginal people, people with disabilities, and visible minorities human rights legislation - prohibits discrimination in employment on certain designated grounds, including sex, age, religion, and skin colour pay equity legislation - addresses inequities in how men and women are compensated employment standards legislation - regulates the content of employment contracts by imposing minimum contract standards, such as minimum wage, maximum hours of work, and overtime pay occupational health and safety legislation - attempts to ensure safe working conditions labour relations laws - give employees the right to form and belong to unions and to bargain for better working conditions and restricts the right of employers to dismiss or discipline employees for exercising rights protected by the legislation Statutory regulation - operates alongside the common law, coexisting with it but also often modifying it - considered a ―minimum‖ that must be provided to an employee, and a contract term providing less notice will be unenforceable Collective Bargaining Legislation and Labour Arbitration - seeks to improve conditions of work by empowering workers to join together and bargain for a better contract for themselves than is usually possible when an individual employee bargains with his or her employer - does this by facilitating a right of workers to organize into unions and bargain collectively with the employer with the aid of a professional union bargainer and by permitting workers to strike and employers to ―lock out‖ the employees in limited circumstances to apply pressure to reach an agreement collective agreement - contract that is bargained in a unionized workplace - common law of employment does not apply to a collective agreement Unionized vs. Nonunionized Unionized Nonunionized employer usually needs just cause to dismiss a worker, employer can terminate an employee for any reason or no unless the dismissal is due to purely economic reasons (a reason at all (subject to statutes that prevent discriminatory permanent layoff) dismissals) by simply giving the proper notice employee must file a grievance alleging that the collective employee must sue the employer in a court for breach of agreement has been violated, and that grievance, if not the employment contract settled or resolved, may be referred to a labour arbitrator instead of a court often costly (because the employee will usually retain a lawyer) and very time consuming arbitration is much quicker than a lawsuit, and the costs are covered by the union as part of the benefit paid for by employees in the form of union dues arbitration law - helps guide the interpretation and application of collective agreements Understanding the Individual Employment Contract - a valid contract requires ―mutual consideration‖ o both parties to the contract must receive some benefit in the exchange - once an employee has commenced employment, the employer cannot unilaterally change or introduce new terms of employment unless the employee agrees to the change and receives some new benefit in exchange o when an employee is permitted to start working before presenting the employment contract to the employee for his or her signature, employee has started work under a verbal contract o if the employer later presents a written contract that includes terms beneficial to the employer (such as a notice of termination clause that provides less than reasonable notice  new terms will not be enforceable, even if the employee signs the contract, if the employee was not also given some new benefit (such as a raise or a new holiday) in exchange for signing - employee can insist that the employer comply with the terms of the contract - if an employer unilaterally changes a term of the employment contract, it will usually have breached the contract, enabling the employee to sue for breach and, if he or she so chooses, to claim that he or she has been constructively dismissed constructive dismissal - occurs when an employer commits a significant or fundamental breach of the contract, such as eliminating an important benefit enjoyed by the employee, reducing compensation, or demoting an employee - employee may treat the contract as having been terminated by the employer, quit, and sue the employer to recover either contractual notice or implied reasonable notice To make a change to the terms of an employment contract without breaching the contract, the employer should: 1. Obtain the employee's agreement to the change and provide the employee with some new consideration (benefit) or 2. Terminate the employment contract in its entirety by giving the required notice of termination and then offer a new contract on the revised terms The Rules Governing Dismissal Dismissal of a Nonunion Employee: Wrongful Dismissal - under the common law of employment, either the employer or the employee can terminate the employment contract by providing the other side with the amount of notice specified in the contract, or if the contract does not include a notice term or includes a term requiring less notice than required by employment standards legislation, with reasonable notice - what amount of notice is ―reasonable‖’ is determined by the court, applying a variety of criteria judges have developed over the years, including the employee's age and the availability of alternative similar employment given the employee's experience and training o two most important factors in assessing notice are  the length of service with the employer and  the nature of the job performed by the employee o courts have developed a form of cap on the length of reasonable notice that is tied to the job performed by the employee  nonmanagerial employees are usually not entitled to more than 12 months’ notice  managerial employees may be entitled to as much as 24 months’ notice - a nonunion employer does not need a reason to dismiss an employee as long as employee was given the proper contractual or reasonable notice o working notice or a payment of wages equal to what the employee would have received for working during the notice period summary dismissal - when a nonunion employer dismisses an employee for cause, without notice - serious breach of the contract, such as engaging in significant dishonesty, gross incompetence, sexual harassment, or workplace bullying or violence - employers won 40 percent of the time when the charge was dishonesty, theft, substance abuse, or abusive behaviour; 54 percent of the time when the charge was insubordination; 65 percent of the time when the charge was conflict of interest or competing with the employer; and just 25 percent of the time when the charge was poor performance wrongful dismissal lawsuit - claim filed in court alleging that the employer breached the employment contract by failing to provide the required notice of termination - issue is whether notice should have been given and, if so, how much - remedy in a successful wrongful dismissal case is usually money - courts do not overturn the decision to dismiss, and they virtually never order the employer to reinstate employee Statutory Regulation of Dismissal - common law entitlement of employers to dismiss a nonunion employee for any reason by giving proper notice has been restricted in a number of ways by government intervention - statutes prohibit employers from dismissing employees for certain reasons o human rights legislation prohibits dismissals based on discriminatory reasons o labour relations legislation prohibits employer from dismissing an employee involved in organizing a union o many types of employment statutes prohibit dismissals and punishment as a reprisal against employees who exercise their statutory rights - tribunals responsible for enforcing the statutes usually have the authority to order the employer to reinstate the employee, with full back pay and benefits, if they find that the reason for dismissal was prohibited by the statute Employment Standards Act of Ontario - amount of notice required is linked directly to years of service: 1 week's notice per year of service to max 8 weeks - amount goes up in the case of mass layoffs to as much as 18 weeks when 500+ employees are terminated - legislation imposes a separate obligation to pay ―severance pay‖ when the employer has an annual payroll of $2.5 million or more or when 50 or more employees are being terminated in a 6-month period due to the closure of all or part of a business o severance pay is one week's pay per year of service to a maximum of 26 weeks Dismissal of a Unionized Employee: Just Cause - most collective agreements in unionized workplaces confer a right on employers to lay off workers, although they regulate the selection of the employees to be laid off and the order of recalls o a unionized employer usually has the option of laying off workers for economic reasons - collective agreements usually include a ―management rights‖ clause that grants employers the right to impose discipline short of dismissal, such as unpaid suspensions o most individual employment contracts do not include expressed management rights to impose temporary layoffs or unpaid suspensions, these actions are usually considered breaches of the individual employment contract amounting to a constructive dismissal - collective agreements usually include a term requiring that the employer have just cause to impose discipline or dismiss an employee - can then be challenged by the employee and the union through the grievance procedure in the collective agreement rather than in the courts - a labour arbitrator has the statutory power to substitute a lesser penalty than the one imposed by the employer - labour arbitrators can (and often do) reinstate employees when they rule that the employer did not have just cause to dismiss the employee - crucial in a unionized setting that HR managers keep careful records of employee misconduct - Labour arbitrators expect employers to apply progressive discipline before dismissing a unionized employee, except when the employee's misconduct is particularly serious - very common for arbitrators to reinstate dismissed unionized employees and to substitute an unpaid suspension of some duration - in considering the appropriate penalty for employee misconduct, arbitrators consider the entirety of the situation looking for ―mitigating‖ factors, which include the employee's length of service and past disciplinary record, the manner in which the employer treated other similar incidents involving other employees, and even the employee's personal circumstances, such as the impact the dismissal would have on the employee and his or her dependants Tips to Consider When Dismissing A Nonunionized Employee With Cause or A Unionized Employee With Just Cause  Terminate an employee for cause only if there is a clear and articulated reason o employer should have clearly articulated, easily understandable reasons for discharging an employee o reasons should be stated as objectively as possible and should reflect company rules, policies, and practices  Set and follow termination rules and schedules o ensure that every termination follows a documented set of procedures o procedures can be from an employee handbook, a supervisory manual, or even an intra-office memorandum o before terminating, give employees notices of unsatisfactory performance and improvement opportunities through a system of warnings and suspensions  Nonunionized employers should consider bargaining a contractual right to suspend an employee o nonunionized employers could include greater disciplinary rights in the contract language to give them more disciplinary options  Document all performance problems o lack of documented problems in an employee's personnel record may be used as circumstantial evidence of pretextual discharge if the employee is ―suddenly‖ discharged  Be consistent with employees in similar situations o document reasons given for all disciplinary actions even if they do not lead to termination o terminated employees may claim that exception-to-the-rule cases are discriminatory o detailed documentation will help employers explain why these ―exceptions‖ did not warrant termination Using the same weapons as management, employees must prove that the just cause will not hold  Establish in writing that you were unaware of the standards of performance or conduct. You can argue that the standards are new or were not part of the initial job offer, position description, performance evaluations, or previous warnings. The company must prove that you were grossly incompetent, so any letters of praise or good performance review should be used. Any aspects of performance that may override the weak areas should be noted. For example, if you are being dismissed for poor communication skills but your productivity figures are increasing, this should be documented. As soon as you commence employment, start a file containing all performance evaluations; letters of praise from customers, coworkers, internal clients, and supervisors; and all other examples of performance achievements. Establish a paper trail of good performance.  Argue that the company, while complaining about poor performance, has not stated specifically what is required to improve performance.  Assert that you were not given the time, training, assistance, or learning opportunities necessary to improve performance.  Establish, if true, that the employer hired you knowing that you did not possess the necessary skills. Note any understanding that you would receive the appropriate training.  State, if applicable, that the skills desired now were not part of your original job description.  Attribute your poor performance to factors outside your control, such as a decline in sales in all regions, or poorly priced products, or a temporary illness. If possible, establish that the company contributed to the performance problem by failing to respond to your (documented) suggestions for improvement. Overview of Regimes Governing Dismissals Common Law (Nonunion Employees) - common law rules of contract govern the employment relationship between nonunion employees and employers - every contract includes a notice of termination clause o clause is either expressed (written) into the contract, or the courts imply a requirement for both parties to provide reasonable notice of termination o courts decide how much notice is ―reasonable‖ by applying a list of criteria o an expressed notice term supersedes the implied ―reasonable notice‖ requirement, but courts will not enforce an expressed term if it requires less notice than required under employment standards legislation - a nonunion employer does not need a reason to dismiss an employee provided that it gives proper notice o summary dismissal—dismissal without notice—is permitted only when the employee has committed a serious breach of the contract - disputes about contracts are resolved in court after one of the parties files a lawsuit for breach of contract o usual remedy is lost wages and benefits during notice period that should have been given (not reinstatement) Statutory Regulation (Union and Nonunion Employees) - employment standards regulation explains minimal termination notice required, usually applies only to employer o length of notice in employment standards regulation is often less than the common law reasonable notice - employment standards regulations also often require ―severance‖ pay in addition to notice when the employer is large or there has been a mass termination - various pieces of legislation prohibit dismissals for certain public policy reasons, such as for discriminatory reasons or as retaliation for the employee exercising statutory rights - claims alleging a violation of a statute are decided by administrative tribunals, not courts, and the remedy can include lost wages and benefits and reinstatement Collective Bargaining and Labour Arbitration - union employees enjoy greater protection from dismissals - common law does not apply to collective agreements - a union employer can usually lay off or dismiss an employee for economic reasons by giving at least the statutory minimum notice or a longer period in the collective agreement - collective agreements usually require the employer to have just cause in all other situations, so a union employer must have a reason to dismiss someone - a dismissed union employee challenging the employer's decision must file a grievance that may be litigated before a labour arbitrator (not a court) - an arbitrator has the power to overturn the employer's decision and impose a lesser penalty (such as suspension) or reinstate the employee Employee Privacy Rights Privacy Issues at the Workplace - right of privacy at work has been recognized in various degrees under all three regimes of employment law Collective Agreements - strongest protections of employee rights - arbitration law usually requires employers to establish both that o there is a pressing need for surveillance and o the surveillance is conducted in a reasonable manner that balances the employee's interest in a reasonable amount of privacy with the employer's business concerns - when the employer can show a strong reason justifying the surveillance and that there was no other reasonable, less intrusive means of obtaining the information, arbitrators have tended to permit surveillance Personal Information Protection and Electronic Documents Act (PIPEDA) - regulates an employer's collection and dissemination of information about employees, as well as the right of employees to access their personnel files in some circumstances - applies to federally regulated workplaces but also to some ―commercial activities‖ engaged in by provincially regulated companies (commercial activities include the selling of information, such as employee lists or information about employees) - organizations must obtain an individual's consent when they collect, use, or disclose the individual's personal info - individual has a right to access personal info held by an organization and to challenge its accuracy, if necessary - any organization that collects personal info can use that information only for the purpose for which it was collected - if an organization wants to use it for another purpose, it must obtain the individual's consent again - individuals must also be assured by the organization that their info will be protected by adequate safeguards - employers are now restricted in their ability to secretly monitor employee computer use unless they can prove that less intrusive means of monitoring computer use were used and did not solve the problem Common Law - employers have traditionally enjoyed a greater latitude to monitor their employees’ behavior - court cases governing email and the Internet have granted employers the right to monitor materials created, received, or sent at work on the premise that the employer owns the computer, the employee is expected to be performing only work-related tasks while at work, and there is no reasonable expectation of privacy when using the employer's computers and equipment - an employer's right to monitor its employees’ conduct at work is not absolute - common law judges appear to be slowly recognizing an implied right to privacy at work Email, Computer, and Voice Mail: Policy Guidelines  Ensure compliance with applicable legislation and common law rules.  Specify the circumstances, if any, under which the system can be used for personal business.  Specify that confidential information not be sent on the network.  Set forth the conditions under which monitoring will be done—by whom, how often, and with what notification to employees.  Specify that email and voice-mail information be sent only to users who need it for business purposes.  Expressly prohibit use of email or voice mail to harass others or to send anonymous messages.  Make clear that employees have no privacy rights in any material delivered or received through email or voice mail.  Specify that employees who violate the policy are subject to discipline, including dismissal. Employee Conduct Outside the Workplace - generally, an employer has no reach over the private lives of its employees; when an employee ―punches out,‖ he or she is no longer subject to the employer's control - both union and nonunion employers have been found to have lacked proper cause to dismiss employees who are arrested for activities unrelated to the workplace - when the employer can establish that the employee's off-duty conduct adversely impacts the economic interests of the employer, such as business reputation, or the employee's ability to perform his or her job, then the employer may be justified in taking action in response to that conduct - an employee who writes slanderous or damaging comments about the employer, or who discloses confidential information on a personal blog or social networking website such as Facebook, will usually be subject to summary
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