Employee Rights and Discipline

Employment contract

: (written rights of employees)

1.

Many employment contracts are

not written down

but are oral contracts

2.

Many aspects of employment relationship appear

in the form of customs

or practices.

3.

In

common law

many terms the employment contract are stated by

"implied"

contract terms.

4.

Employment contracts

may be limited, changed, or voided

by a range of

employment legislation when government intervenes.

5.

The right to discipline and discharge employees

is

more difficult to

exercise.

6.

Increase in the number of lawsuits

filed by employees due to growth of

employee rights.

The Three Regimes of Employment Law

2. Statutory Employment Regulation (Laws & Acts):

Employment equity legislation

Human rights legislation

Pay equity

Employment standards legislation

Occupational health and safety

Labour relations

Statutory regulation operates alongside the common law,

coexisting but also often modifying it.

Video:

Employment Standards Act Ontario Ministry of Labour2.mp4

Link: https://www.youtube.com/watch?v=zirnD8rFLRc

The Three Regimes of Employment Law

3. Collective Bargaining Legislation and Labour Arbitration

Collective bargaining legislation

, such as the

Ontario

Labour Relations

Act

,

seeks to

improve conditions of work

by empowering workers to join together and

bargain for a better contract for themselves.

A right of worker is facilitated when

:

1.

Workers organize into unions

2.

Bargain collectively with the employer:

With the aid of a professional union bargainer

By permitting workers to strike and employers to "lock out" the employees in limited

circumstances to apply pressure to reach an agreement.

The contract that is bargained in a unionized workplace is known as a

collective

agreement

.

Some of differences between union &

non-union employee

:

Common law/Employment law

The

common law of employment does

not apply

to a collective agreement.

(e.g. Termination)

In breach of employment contract: A

nonunion employee must sue

the

employer (costly)

Courts

settle the differences

The law used is

"common law".

Unionized

A unionized employer usually

needs just

cause

to dismiss a worker.

A

unionized employee, must file a

grievance.

In breach of employment contract

:

None

settled grievance may be

referred to

a

labour arbitrator

instead of a court

.

Arbitration is much quicker than a

lawsuit

, and the costs are covered by the

union.

For Labour arbitrators have built up their

own form of common law, known as

"arbitration law

,"

Understanding the Individual Employment Contract

The individual employment contract:

The

general rules

of contract law developed in the common law apply.

Valid contract requires

"mutual consideration."

Both parties to the

contract must receive some benefit in the exchange.

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.

A

constructive dismissal

:

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

.

The Rules Governing Dismissal

Dismissal of a

Nonunion Employee

Under the common law of employment or statutes, The Employer

:

1.

No reason needed, to dismiss an employee

at any time, for any reason

(that is not a violation of a

statute, such as human rights legislation)

2.

Can terminate the employment contract

by providing the

other side with the amount of

notice specified

(payment or working notice/period)

the length of service with the employer.

the nature of the job performed by the employee.

Summary dismissal

:

an employer dismiss a nonunion employee without any notice if

an employee committed a serious breach of the contract.

(such as engaging in significant

dishonesty, gross incompetence, sexual harassment, or workplace bullying or violence.)

Wrongful dismissal

lawsuit

.

employer breached the employment contract (not pay the

notice) by failing to provide the required notice of termination.

The Rules Governing Dismissal

Statutory Regulation

(Statutory rights)

(for employment & dismissal)

Statutes prohibit employers from dismissing employees:

Human rights legislation

-

dismissals based on discriminatory reasons.

Labour relations legislation

- an employee involved in organizing a

union.

Employment standards -

provincial law

Occupational health and safety

Employment standards legislation in Canada

For example, in Ontario, the amount of notice required in the

Employment Standards Act

is linked

directly to years of service: one week's notice per year of service to a maximum of eight weeks

.

The Rules Governing Dismissal

Dismissal of a Unionized Employee:

"Just Cause"

Unionized employer

usually needs a reason to dismiss an

employee

.

Collective agreements usually include a

"management rights"

clause

(grants employers the right to impose discipline rather

than dismissal).

Right to grievance

by employee. (e.g. for discipline)

A

labour arbitrator

has the statutory power to substitute a

lesser penalty

than the one imposed by the employer. (e.g.

reinstatement)

Progressive discipline

before dismissing a unionized employee

Employee Privacy Rights

Surveillance

: Common method for managing challenges such

as misuse of company equipment, harassment and violence.

Challenge

: employee entitlement to privacy vs surveillance

Legislation to protect employee privacy rights

:

The British Columbia

Personal Information Protection

Act

applies to the private sector

(e.g. assessing whether an

employer can conduct surveillance on employees.

Federal

Personal Information Protection and

Electronic Documents Act

(PIPEDA)

For example, employers restricted in their ability to secretly monitor

employee computer use unless they can prove why.

Employee Privacy Rights

Employee Conduct Outside the Workplace

Owner of ABC Corporation reads in the newspaper that a company

employee has been charged with robbery and assault on a local

convenience store owner.

The employee has been released pending trial. What should the

owner do? What is the owner legally entitled to do? What can an

employer do if it believes that an employee is lying about his or

her inability to work due to sickness or disability? Can the

employer spy on the employee outside the workplace?

Disciplinary Policies and Procedures

2. Positive, or nonpunitive, discipline

The steps:

1.

A conference and discussion between the employee and the

supervisor

. To obtain oral agreement for future improvement. (No

reprimand or threats)

2. If no improvement made, the

second conference to be given

a written

reminder is given to the employee.

3. When both conferences fail to produce the desired results, the third

step is to

give a one-day

decision-making leave

(a paid leave)

4. If a

commitment is not made, the employee is dismissed

with the

assumption that he or she lacked responsibility toward the organization.

Alternative Dispute Resolution Procedures

In unionized organizations, there are grievance procedures.

In

nonunionized organizations

,

alternative dispute

resolution (ADR)

procedures

are a developing method to

address employee complaints:

1.

A step-review process

2.

Peer Review system

3.

Open door policy

4.

Ombudsperson System

5.

Arbitration

6.

Mediation

Alternative Dispute Resolution Procedures

1. A step-review system

is

based on a pre-established set of

steps

normally fourfor the review of an employee complaint by

successively higher levels of management.

Conventional Step-Review Appeal Procedure

In Step-review system:

In nonunionized- non third party (an arbitrator) in appeal process

Most times

the president, chief executive officer (CEO), vice president, or HR director acts as the final authority

.

Problems:

Step-review systems

may not yield their intended benefits

. Employees may believe that management is slow in

responding to complaints and that management's response often does not solve the problem.

May be believed

supervisors would still hold it against them

if they exercised their rights.

Alternative Dispute Resolution Procedures

2. A peer-review system

, also called a

complaint committee

is

(Equal number of management and employees)

Employee representatives

: co-

workers are elected by secret ballot & both employees and managers assigned are rotated

.

Peer-review system functions as a jury

: its members weigh the evidence,

consider arguments, and, after deliberation, vote independently to render a

final decision.

Benefits:

The sense of justice that it creates among employees.

Can be used as

the sole method

for resolving employee complaints, or it can be used in conjunction with a

step-review system

Alternative Dispute

Resolution

Procedures

Problems:

1.

The unwillingness of

managers to listen honestly

to employee complaints

2.

Worker reluctance to

approach managers with

their complaints.

3.

Fails to guarante

consistent decision making

because what is fair to one

manager may seem unfair

to another.

4.

Higher-level managers tend

to support supervisors for

fear of undermining

authority.

5.

ODP may lack credibility

with employees.

3. Open-Door Policy

:

The traditional

ODP

identifies various levels of

management above the

immediate supervisor

(vice president, president,

or CEO

)

Alternative Dispute Resolution Procedures

4.

Ombudsperson System

:

An

ombudsperson

is a

designated individual

by employees to seek

counseling. (has

no authority to finalize a solution

to the problem)

They:

Listens and attempts to resolve it by seeking an equitable solution between the parties

Employ problem solving method and works cooperatively with both sides

Operates in atmosphere of confidentiality that is not threatening

For example, complaints of sexual harassment, abuse of power, or issues that deal with circumstances that violate the law

or unethical behaviour (whistle blowing) require high degrees of confidentiality to protect those involved

Alternative

Dispute

Resolution

Procedures

Employers must:

Have a clear, well-defined, and widely

communicated arbitration policy

Specify those topics subject to arbitration

Inform employees of the rights they are

relinquishing by signing an arbitration agreement

Provide a procedurally fair arbitration system

Allow for the nonbiased selection of an arbitrator

or arbitration panel

5.Arbitration

:

When an employee and an employer

present their cases, or arguments,

to an arbiter

, who is typically

a

retired judge

.

(Have authority over final decision; He or

she then makes a decision

that the parties

have agreed to be bound by)

Benefits:

Save litigation costs avoid time delays

and unfavourable publicity.

Alternative Dispute Resolution Procedures

6. Mediation:

(

no power or authority

to force either

side toward an agreement.)

Mediation

takes place by

a

third-party neutral (called a mediator)

to help employees and managers reach

voluntary agreement acceptable to both parties

.

The

mediator

meets and

listens to both parties, gathers facts, and through discussion,

suggestions, and persuasion, obtains an agreement that will satisfy the needs and

requirements of both sides.

Fact finder

and

open channels of communication

It causes parties maintain

control over the settlement outcome

.

Is a

flexible & private

process.

Resolves a wide range of employee complaints, including discrimination claims or traditional workplace

disputes.

Its

informal

Promotes favourable working relationship.

Managerial ethics:

Ethics

can be defined as a set

of standards of acceptable

conduct and moral judgment.

Ethical dilemmas will always occur in the supervision of employees, how

employees are treated largely distinguishes the ethical organization from the

unethical one.

Ethics provides cultural guidelines

organizational or

societal what's proper.

Ethics

, employment relationship

.(e.g. disclosing information about

stock)

Code of ethics"

that governs relations with employees

and the public at large. HR departments: communicate,

monitoring compliance, and enforce the COE standards.

Find a description of a case related to one of the topics of employment law discussed in Chapter 13 (e.g. dismissal, privacy rights of employers).The case must be Canadian and have been decided within the last ten years

• describe the issue in the case discussed in your article.Be sure to include the name of the specific case (it will something like Smith v ABC Corp.)What did the judge decide and why?
• Do you agree or disagree with the decision?Why?Does the decision seem appropriate, given what you have learned in this class?
• What are the implications of this decision for HR practitioners?Based on this case, are there any policies or procedures that you would want to review or possibly change?