ALTHOUGH THE REALITY IS OF COURSE THAT MOST
EMPLOYEES ARE DEDICATED AND HARDWORKING
(AND NOT PREDISPOSED TOWARDS ADVANCING
UNMERITORIOUS REPRISAL COMPLAINTS),
THERE IS NONETHELESS NO SHORTAGE OF
EMPLOYEES WILLING TO “GAME THE SYSTEM.”
(a) Because the employee
(i) asks the employer to comply with this Act and
the regulations,
(ii) makes inquiries about his or her rights under
this Act,
(iii) files a complaint with the Ministry under this Act,
(iv) exercises or attempts to exercise a right under
this Act …
And section 74(2) of the ESA goes on to provide that “the bur-den
of proof that an employer did not contravene a provision set
out in this section lies upon the employer.” In other words, when
faced with an allegation of reprisal, an employer is guilty until
proven innocent.
Upon the Bill 148 amendments coming into force, an underper-forming
employee (or indeed any employee who feels that his or
her job might be at risk) will be able to demand a wage review or
request a scheduling change in order to “turn the tables” on his or
her employer – i.e., he or she will thereby create a situation where-in,
if the employer follows through on an intended dismissal or
performance management initiative, the employee can bring a re-prisal
complaint and the organization will be (a) presumed to have
engaged in reprisal against the employee, and (b) obliged to dem-onstrate
the bona fides of its actions.
■■ There is good reason for employers to be even more cynical
vis-à-vis the proposed amendments to the personal emergency
leave provisions. In that regard, many organizations already
face challenges in regard to employee abuse of sick days; and
Bill 148 will strip employers of an important tool that has
traditionally been available to help manage those challenges
– i.e., the prerogative to insist that employees provide medical
documentation to substantiate their purported medical absences.
Indeed, employers will not only lose the ability to insist
upon medical documentation in support of any absence that
falls within an employee’s 10 days of personal emergency leave,
they may also find themselves exposed to claims of reprisal by
employees who are asked to provide medical documentation
legal words
(which will still be permitted) but decline to provide it (as will
be their right under the Bill 148 amendments), and who are
– for example – subsequently dismissed or performance-man-aged.
Again, the employee who brings a reprisal complaint will
create a situation in which the employer is (a) presumed to have
engaged in reprisal, and (b) obliged to demonstrate the bona fi-des
of its actions.
Although the reality is of course that most employees are ded-icated
and hardworking (and not predisposed towards advancing
unmeritorious reprisal complaints), there is nonetheless no
shortage of employees willing to “game the system.” And, unfortu-nately,
the Bill 148 amendments will represent a gift for that latter
minority.
Employers should therefore prepare not only for their new
compliance obligations, but also for more employment standards
complaints.
By extension, that means that organizations will need to think
more defensively, and consider opportunities to pre-empt or de-flect
complaints. For example, one of the most effective proactive
strategies that an employer can adopt is a diligent process of
written performance reviews, performance management and pro-gressive
discipline. In that regard, a well-papered personnel file
that memorializes an employee’s performance and/or disciplinary
issues (versus a poorly documented history of any such issues) can
be of tremendous assistance to an employer in rebutting allega-tions
that a subsequent termination or corrective action is in the
nature of a reprisal or otherwise illegitimate.
Unfortunately, however, no amount of preparation will permit
employers to avoid the significant economic costs that will follow
the enactment of Bill 148, nor the opportunities for abuse that will
be open to employees under the new provisions.
Well-intentioned or not, Bill 148 seems very likely to present an
object lesson on the law of unintended consequences. n
Jason Beeho is a partner at Levitt LLP and a member of the HR
Professional Editorial Advisory Board. For more information on Bill
148, turn to our in-depth cover story on page 22.
HRPROFESSIONALNOW.CA ❚ OCTOBER 2017 ❚ 17