Problems in the Workplace: Sometimes a Wrong can Lead to a Right

When employees have workplace problems, they often feel powerless or have a sense of isolation as they try to work through their difficulties. They may not know there are ways to deal with problems. Here are a few examples.

The subject of workplace bullying, violence and harassment has been in the news over the past several years. In Ontario, every workplace must now have a policy to deal with allegations of harassment. That policy gives workers a right to have an employer investigation into complaints that an employee has been harassed. The rules are much stronger where there is a risk of workplace violence. Workers have a right to be told about potential workplace violence. They have a right to be protected by their employers from domestic violence that might happen in a workplace and they have a right to refuse work if they believe they face a danger from workplace violence.

Workers are often concerned about keeping sensitive medical information private. Their employers may ask for the information from health care practitioners, but the law places strict limits on what they can do with this information. A person who receives this kind of information can only use or disclose it for the purpose for which it was received. No more information can be disclosed than is reasonably necessary for that purpose. An employee has to consent before his or her medical practitioner gives information to an employer. Anyone who believes there has been improper disclosure of health information can complain to the Ontario Information and Privacy Commissioner.

It has become fashionable to create so-called contractor relationships for work. Many people believe that if an employer calls someone an independent contractor, that decides what the employer and the employee’s rights and obligations are. Most people don’t realize the name you pick for the relationship doesn’t decide whether you are legally an employee. Courts, tribunals and even the Canada Revenue Agency will normally look at the way the relationship actually works in practice. People may have rights under the Common Law, employment standards laws, and they may have income tax and other obligations, whether they call themselves employees or contractors. The choice of words can matter, so people should be careful about how they describe their relationship, but they shouldn’t assume the use of the term contractor or independent contractor eliminates employment law rights and obligations.

Is a layoff a termination of employment? It might be, in a non-union environment. Unless an employee has agreed in advance to an employer right to lay the person off, courts may consider it a substantial change in terms of employment. When that happens, an employee may be entitled to treat the layoff as a constructive dismissal. Employees who have been constructively dismissed can ask to be paid for the reasonable period of notice to which they were entitled. These are only a few examples. When an employee has a sense that they have been unfairly treated, often the law will agree. When the law is on your side, there are ways to fix the problem, or to get compensation while looking for another, better place to work.

Sean T. Mcgee practices Labour Law, Employment Law and Litigation at Nelligan O’Brian Payne LLP. He is the leader of the firm’s Labour Practice Group.