Apr 21

Precarious work

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Canadian Job Quality in Question: Where Employment Law steps in

The CIBC’s recent study found that work quality is at an all-time low in Canada. This means more people have precarious jobs, are forced into self-employment or part-time contracts, do not receive benefits, or are part-time.

A recent article published by CTV News has drawn the Canadian eye towards growing trends in employment, specifically, that the Canadian labour market has experienced a drastic shift towards lower paying full-time jobs and part-time jobs over their more financially stable long-term counterparts.

While there is nothing wrong with utilizing part-time work in order to maximize the financial capabilities of a company, a problem arises when those employees are not provided with adequate compensation and other employment rights, such as breaks, in accordance with the Employment Standards Act, 2000 (or the Canada Labour Code R.S.C., 1985, c. L-2, in the instance of federally- regulated employees).

Right to Minimum Wage Standards

The now infamous case of Garrie v. Janus Joan, Inc., 2014 HRTO 272 involved an employer who attempted to deprive its employees of their bare minimum compensation as per the ESA. The Complainant Garrie, who was mentally disabled, was taken advantage of by her employer, who only paid her $1.25 per hour throughout her 10 years of employment. When the matter proceeded before the Human Rights Tribunal of Ontario, Garrie was awarded $142,124.00 in lost wages, $19,613.00 in lost income resulting from her termination, and $25,000.00 in general damages for the discriminatory treatment she was subjected to at the hands of her employer.

Right to a Safe Workplace

Employees also have a right to a safe workplace. In Ontario (Ministry of Labour) v. Semple Gooder Roofing Corporation, 2015 ONCJ 183 (CanLII), a roofing company was convicted under the Provincial Offences Act, R.S.O. 1990, c.P.33 for failing to abide by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. The company failed to adequately protect its employees for jobsite dangers- specifically, its failure to utilize a proper guardrail system in order to eliminate employee injuries sustained as a result of falls.

Other Considerations- Changes in Employment Capacity

Simply because it is more economical for an employer to maximize its part-time workforce does not give that employer the right to unilaterally (that is, drastically alter) that employee’s wage and hours. Such conduct, absent sufficient consideration (notice or pay in lieu thereof) constitutes constructive dismissal. As per Francis v. Canadian Imperial Bank of Commerce, 1994 CanLII 1578 (ON CA), a fundamental modification to an existing employment contract (such as wage or position) is only enforceable if sufficient consideration is provided before the transition occurs.

Conclusions

The crux of CTV News’ article is that positions with significantly less equal bargaining power have dominated the market as a result of employer financial concerns arising from the recession. Ultimately, while the existing common law and employment legislation cannot prevent an employer from utilizing more part-time and lower-paying positions, or require that additional full-time, well-paid positions are made available to the labour market, it does protect employees from being unfairly treated in the context of the employment relationship.

Advice for Employers

As the authorities above demonstrate, it is crucial that your company’s employment practices and policies maintain compliance with employment standards legislation and the common law in order to avoid significant liability in the future. If you are unsure as to whether a company decision or policy may not be compliant, call Monkhouse Law today for a free consultation.

Advice for Employees

An employer cannot pay you less than that required by employment standards legislation, just as it cannot force you into an unsafe workplace or substantially alter your position absent additional consideration. If you believe that your rights in this regard have been violated, call Monkhouse Law today for a free consultation.