Class 2

Legal environment of HRM

Employee and labour relations

Today’s agenda

Why HR and managers need to understand employment law?

Canadian legal framework for employment Common law Employment standards Human rights legislation Workplace equity legislation

Employee and labour relations Alternative dispute resolution

Why need to know the basics of employment law?

To do the right thing Not to engage in inappropriate behaviours To create healthy work environment To make managerial decisions that reduce the

likelihood of legal liability To recognize situations when legal and fairness

issues require external expertise

Managerial PerspectiveManagers should consider legal issues when making the following decisions:

Which employees to hire How to compensate employees What benefits to offer How to accommodate employees with dependants How and when to fire employees

Lawsuits are costly! Hughes v. Gemini Food Corp (ON, 1997): former

president and CEO awarded $778,590 in general damages for wrongful dismissal + $75,000 for “public humiliation”

Keays v. Honda Canada Inc. (ON, 2005): worker was awarded 24-month salary for wrongful dismissal + $500,000 in punitive damages for a breach of duty to accommodate

Former RCMP officer got $1 million in harassment settlement (BC, 2006)

Bell Canada has settled a 14-year pay equity dispute with the Communications, Energy and Paperworkers Union of Canada for $100 million on behalf of almost 5,000 telephone operators (2006)

Canadian legal framework

Common law

Constitutionallaw

Federal acts

Provincial acts

Contract law

Employees

All employers

All governments

Other laws All individuals and organizations

Fed. employers

All employersof the province

Parties in contract

The common law obligations of employees

A. Express contractual obligations (restrictive) (e.g., non-competition, nondisclosure)

B. Implied contractual obligations (duty of fidelity) To advance and not to abuse employer’s business

interests To obey lawful and reasonable orders To avoid absenteeism, lateness, dishonesty,

drunkenness, sexual harassment, moral impropriety, incompetent or negligent job performance

The common law obligations of the employerA. Express contractual obligations (found in

written and verbal offers and other ancillary documents incorporated in the contract)

B. Implied contractual obligations, e.g., Duty of fairness Duty to pay for work actually performed Duty to give notice of termination Duty to provide sick pay Duty to provide reasonably safe workplace

Note: seldom enforced. Instead, employment standards legislation applied.

Major employment legislation:

Employment standards Human rights legislation Workplace equity legislation

Employment standards

Canada Labour Code (for federal jurisdiction) Labour standards acts (for provincial jurisdictions) Common themes in all legislations (see Fig. 3-1):

Wage Hours of work Rest days Termination notice

Human rights legislation

“One problem, more than any other, dominates human history – the problem of

how we deal with those who are different than us.”

Beverly McLachlin,

Chief Justice of Canada

2003

Legal framework for human rights

The Canadian Charter of Rights and Freedoms (part of the Constitution)

The Canadian Human Rights Act (enforced by Human Rights Commission)

Provincial human rights codes/acts (see Fig. 3-2)(enforced by provincial Human Rights Commissions)

Workplace equity, discrimination and harassment policies (e.g., http://carleton.ca/equity/human_rights/index.htm)

Discrimination In 2005, human rights cases resolved:

Canadian Human Rights Commission: 1,743 Ontario Human Rights Commission: 2,117

In 2001, 83% of fed. human rights complaints related to disability, sex, and ethnic origin

Intentional and systemic discrimination Bona fide occupational requirement Reasonable accommodation Sexual orientation Harassment

Accommodation may include:

Physical workplace Scope of work Hours of work Job expectations or requirements

Duty to accommodate Undue hardship

Human Rights Commission’s

Policy and Guidelines on Disability and the Duty to Accommodate (2000)

Human rights to equal participation in work

Employer’s duty to accommodate disability, creed, pregnancy, age,

family status

Meiorin principle (1999)

Costs, threat to financial viability

Outside sources of funding

Health and safety risks

Principle of proportionality

Meiorin case (1999) A female firefighter (Meiorin) was dismissed when

she could not meet the new aerobic standards. Meiorin complained that the aerobic standard

discriminated unfairly against women. The Supreme Court of Canada found that the

standard was not a bona fide requirement and was discriminatory.

The Court ruled in favor of Meiorin. Since then, employers are expected to initially build

the conception of equality into their work policies.

Canadian Human Rights Commission on harassment:

Harassment is any unwanted physical or verbal conduct that offends or humiliates a person.

Harassment is a type of discrimination. Harassment can create a negative or hostile work

environment which can interfere with one’s job performance and result in him/her being refused a job, a promotion or a training opportunity.

Harassment will be considered to have taken place if a reasonable person ought to have known that the behaviour was unwelcome.  

The Canadian Human Rights Commission accepts harassment complaints based on 11 grounds: race, colour, national or ethnic origin, age, religion, sex, marital status, family status, mental or physical disability, pardoned conviction, and sexual orientation.

Sexual harassment

Most common form of harassment Form of gender discrimination Included in the Canadian Human Rights Act in 1983 Quid pro quo (this for that) Creating hostile environment Applying a “reasonable person” standard Reducing potential liability for sexual harassment:

establishing a written policy prohibiting harassment and communicating it to all employees

Forms of sexual harassment

Derogatory or degrading remarks Displays of offensive material Unwelcome and invasive comments or inquiries Unwanted and inappropriate touching Persistent unwelcome requests for “dates” Favouring those who comply to harassment Use of intimidation, threats or coercion

Employment Equity in the workplace

= affirmative action in the U.S. Federal Employment Equity Act

Proportional representation of protected group members in the workforce

Avoiding undue hardship by hiring unqualified persons

Danger of reverse discrimination

Non-mandatory equity programs in provincial jurisdictions

Pay equity Purpose – to reduce gender-related pay

discrimination Equal pay for equal or similar work within the

organization– in all jurisdictions Equal pay for work of equal value – in federal

jurisdiction and some provinces (incl. ON) Criteria: skill, effort, responsibility, and work

conditions Justifiable gender-related wage differentials:

performance, seniority, demotion, job re-classification, labour shortage

Employee and labour relations Why do employees join unions? Labour relations in Canada (6 characteristics) How do Canadian unions differ from those in

other countries? Similar to the U.S.(a couple of differences) Europe: greater union impact, stronger social security

network, more protective legislation Germany: industrial democracy, worker councils,

codetermination Japan: enterprise union, labour-mgmt cooperation

Employee and labour relations (cont’d) Labour relations strategies:

Union acceptance Union avoidance (substitution and suppression)

Developing managerial skills to deal with labour relations: Union organizing: union solicitation, pre-election

conduct Collective bargaining: bargaining power, distributive

and integrative bargaining, bargaining topics, impasses, conciliation

Contract administration: grievance procedures, Fig. 14-10

Alternative dispute resolution (ADR) Treasury Board guidelines on alternative dispute

resolution methods Interest- based vs. rights-based process Mediation vs. arbitration

• Role of the mediator• Role of the union steward• Purpose of mediation

Infrastructure for ADR• ADR office• Network of advisors and internal volunteer mediators• Training • Union – management cooperation

Bottom line of Class 2 HR and other managers need to know the basics of the

employment law to make the right decisions and do the right thing to create a healthy work environment and avoid costly lawsuits.

Canadian legal framework is somewhat complicated due to multiple jurisdictions.

Employers are subject to more legislation than employees because of the power imbalance.

Employment standards address such themes as wages, hours of work, rest days, and termination notice.

Bottom line of Class 2 (cont’d)

Human rights legislation addresses discrimination against protected groups.

Employer’s duty to accommodate is counterbalanced by undue hardship to the employer caused by such accommodation. However, usually there are options to overcome the undue hardship.

Harassment, including sexual harassment, is one of the forms of discrimination.

Bottom line of Class 2 (cont’d) Workplace equity includes two types of equity:

Employment equity means proportional representation of protected group members in the workforce

Pay equity is meant to rectify gender-related pay discrimination and provide equal pay for work of equal value.

Employees join unions to protect their needs and interests.

Canadian unions are more focused on economic issues than political (in contrast to European unions).

Management has two alternatives with respect to unions: to accept or avoid them.

Bottom line of Class 2 (cont’d)

In organizations where good practices are introduced, employees are less likely to unionize.

Managers need to develop skills to deal with labour relations (e.g., communication, bargaining)

Unionized employees have the right to initiate grievance process if the collective agreement is violated or the discipline is believed to be unfair.

Nowadays, more and more organizations encourage their employees to use ADR as an alternative or supplement to the grievance process.