Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Workplace laws sometimes lean on the workers

Most employees cling to beliefs about workplace rights they gleaned from media, friends or researching on the Internet. But many of these “perceived” rights often do not exist. Here are some of my favourite misconceptions:
Poor performance is cause for dismissal. Except in extraordinary cases, the quality of performance is irrelevant when assessing whether there is a right to severance. Similarly, there is no such concept as “near” cause, meaning both stars and incompetents should receive the same payouts if fired.
Promotions or bonuses must be assessed fairly. An employer may decide, often arbitrarily, who it wishes to promote and how it will compensate its employees. It is entitled to show favouritism, as long as its decision is not based on personal characteristics, such as race, religion or gender.
Severance is based on a rule of thumb. Courts do not assess severance based on a formula, such as one month per year of service, and neither will your employer. Instead, severance is based on factors such as age, tenure, your position and your relative re-employability.
An employee is entitled to overtime pay for any additional hours worked. Unless agreed to in an employment contract, which is unlikely, overtime pay is only required for hours worked in excess of the statutory standards, which vary among provinces.
If an employee is terminated, she will not receive EI. On the contrary, only employees who are terminated for “cause” may not be eligible. Employees who are fired for poor performance, laid off, restructured, or downsized are all eligible for employment insurance.
The Ministry of Labour will protect your rights. Provincial agencies can only enforce statutory rights, found in legislation. However, most employee grievances are based on common law rights, which are separate from legislation. To challenge your employer on any significant financial issue, you will typically have to go to court.
An employee is entitled to a letter of reference. This is simply untrue. Although the failure to provide a reference can contribute to the severance you may receive, there is no rule or law compelling an employer to provide a reference letter or even to confirm your previous employment.
Harassment is in the eye of the beholder. Today, most employees view themselves as “harassed.” But harassment is a subjective concept. For it to amount to a meritorious claim, the conduct complained of must be such that no reasonable employee would be expected to persevere, in the eyes of the judge, not just those of the employee.