Author: Daniel A. Lublin
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. However, many of these “perceived” rights often do not exist. Here are some common misconceptions:
Poor performance is cause for dismissal. Except in extraordinary cases, poor performance does not provide a right to withhold severance. Similarly, the quantum of severance is not judged based on performance, meaning that both stars and incompetents should receive the same payouts if fired.
Promotions, bonuses or salary 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.
If an employee is terminated, she will not receive EI. On the contrary, only employees who are terminated for “cause” or those who resign may be ineligible. 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 – and you will need a lawyer.
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, employees too easily view themselves as “harassed.” Harassment is a subjective concept. For it to amount to a meritorious legal 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 the employee.