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HR Law:
Back to Basics
Workplaces have been con-tinuously
evolving over the
past few decades, and issues
surrounding the employer/
employee relationship (and everything in
between) are far from black and white. As
office dynamics and work methods change
and develop, it’s critical to have at least a
basic understanding of different HR laws
that can affect an organization.
Below are overviews on 12 different
topics especially prevalent to HR workers
in the realm of employment law.
CONSTRUCTIVE DISMISSAL
Trying to do more with less is common
practice in many organizations as they
tighten belts and tend to bottom lines. But
the practice can land a company in hot wa-ter
if they’re not careful.
“When an employer unilaterally and
fundamentally changes an individual’s
essential terms of employment, it’s of-ten
seen as unreasonable and unfair,” said
Jeffrey Percival, partner with Pallett Valo
LLP in Mississauga, Ont. “And legally
speaking, it may be considered construc-tive
dismissal.”
It can be a tricky area, though, because
there’s room for interpretation.
“It’s very fact-specific,” he said. “Every
situation is different and needs to be ex-amined
on its own merit.”
There are also plenty of details to
consider.
“For example, if you’re going to change
something about an employee’s role – it
might be the duties they perform, a demo-tion,
a temporary layoff, a change in pay or
even location – the employee generally has
to agree to those terms,” said Percival.
If the plan is to cut an employee’s pay,
it’s permissible up to a certain point. “But
once you start reducing an employee’s
pay by around 15 or 20 per cent, you’ve
crossed the line into constructive dismiss-al
territory.
“It’s an area of HR law that’s fraught
with changes and uncertainty,” he said. “It’s
best to tread cautiously and get qualified
guidance when you need it.”
EMPLOYEE CONTRACTS
Does your organization dust off a decade-old
employee contract every time there’s a
new recruit? If so, it’s time for a review.
“Contracts we might have thought were
enforceable a few years ago, the courts
might be taking a different view of them
today,” said Michael Fitzgibbon, founding
partner with Watershed LLP in Oakville,
Ont. “In particular, they’re looking into
any areas where the employer has given
them wiggle room upon drafting.”
Fitzgibbon says that historically speak-ing,
a big motivator when drafting
employment contracts has been to make
sure there’s an enforceable termination
provision, limiting the employee to some-thing
less than the common law would
imply.
“However, recently when courts have
looked at termination provisions, they’ve
looked at things like whether they provide
for benefit continuation, which is required
under the Employment Standards Act,”
said Fitzgibbon. “They’ve struck down cer-tain
clauses as being unenforceable when
they don’t.” When that happens, it can be
costly for an employer.
“Five years ago, we might not have been
so concerned about that type of drafting,”
he said. Now, though, HR professionals
need to advise their organizations to spend
By Melissa Campeau
18 ❚ OCTOBER 2014 ❚ HR PROFESSIONAL