Employer’s right to manage the workplace

Discuss About The Employment Law For Human Resource Practice.

In the given scenario, the cashier of the company has been working for 25 years and was significantly concerned about the changes that were being implemented in the company. In her opinion, the training was stressful and difficult but she fumed after learning that she was not part of the training.  Although she has been assured by her employer that it is not obligatory for her to attend the meeting, given she is 64 years old and is about retire, it shall also save the company little expense. However, the employee threatened to initiate legal action against the company.

 The employers have a right to manage or reorganize the workplace in a manner they consider as appropriate and may include the right to change business procedures and introduce advanced technology to enhance the business operations (Bratton & Gold, 2017). This justifies the fact that the employers may require the employees to undergo any form of training that is likely to develop or enhance their skills or knowledge for the betterment of the company and the employees themselves. In fact, under the Canadian law, any refusal on part of the employees, to undergo such training shall be considered as insubordination. However, if the employer allows the employee to continue with business responsibilities despite refusing to undergo the training, it shall not be considered as insubordination (McDaniel, Wong & Watt, 2015).

Employees that have been working within an organization for long period face job challenges as the employers often propose to change the job posts along with the responsibilities based on the changing abilities, needs and preferences, of the company and often, the employees. The changes in the job positions are often proposed to endow the employees with an opportunity to develop their skills and acquire new knowledge, which will be beneficial in their future endeavor (Freedland et al. 2016).

In the given scenario, it was unlikely for the employer to exclude an employee who has been working for the company for 25 years from the training merely because it would save expenses of the company, as she would retire from her job soon. Nevertheless, given the fact that the employee considers the training to be stressful for her, it is only appropriate that the employee is provided with an alternative position or job responsibilities based on her needs, capabilities and preferences. If such responsibilities would require her to undergo trainings, it is the responsibility of the employer to ensure that the training is less stressful or difficult for her.

Employee’s right to refuse training

The above-mentioned method is appropriate, as the employees that have been serving the company for years remain loyal to the company provided their hard work is valued. Training within an organization is considered as a fundamental element that retains employees which includes the aged and tenured employees and is a significant factor behind the success of an organization as training enhances their skills and knowledge. It is a way of expressing the employees that their efforts are valued and the organization is interested to continue with the employees. This might change the mind of the employee, in this case, from commencing legal proceedings against the company.

On the facts here, the researcher is alleged to have become addicted to social networking sites, spending most of his duty hours on social media. The employer wishes to supervise his activities and decides to install monitoring software.  

According to Personal Information Protection and Electronic Documents Act [PIPEDA], any information related to the employees is safeguarded from being scrutinized by the company managers, thus, upholding the privacy of the employees. Each province in Canada has its own legislations and the employers are required to adhere to such individual provincial rules related to employment. In Jones v Tsige [2012], the Court of Appeal of Ontario upheld legal protection of the individual rights from any unreasonable interference into their personal life. In order to address the issue arising in the given case, the employer has two options. Firstly, during the recruitment period, the background check of the recruited employees may be conducted on the ground of due diligence and it shall not amount to an invasion of privacy as well.

Secondly, in Canada, since employee monitoring is yet to become a common practice at workplaces, it is usually practiced by very few organizations. However, in order to install surveillance software that will enable the employer to monitor recordings and activities of the employees constantly, the employers must acknowledge the employees about such arrangements. The employees must be assured that such monitoring and surveillance shall be utilized strictly for disciplinary or safety purposes (Lam, 2016).

The issue arising in the given scenario may be addressed by informing the employees about installation of the software that would subject them to surveillance and monitoring. The employer must assure the employees that such footages shall be used only for safety or disciplinary purposes. The PIPEDA legislation was enacted to safeguard the privacy of the individual and that any invasion of privacy with respect to the employees shall have legal implications, which would eventually, affect the reputation of the company. Hence, it is only appropriate if the employees are informed about the use of technology for monitoring and surveillance purpose besides adhering to the relevant provisional laws (Hudson & Lawyer, 2017).

Employee monitoring

In this case, the employee who is about to be recruited was working for a competitive company and left his job to join the present company, hence, a significant incentive has been proposed. The employee had moved halfway across the nation in order to join the present company and had expressed her wish to continue with the company until her retirement, however, the company had promised to continue with the employee for a period of five years. This requires a contract to be formed that will secure the position of the employers if the employee is not satisfied with the organization or even after making certain changes within the contract.

The employment contract may be either fixed term employment contracts or indefinite duration employment contracts. Indefinite duration contracts refers to contracts where the employment is one of continuous service and such employment lasts for indefinite period without any fixed termination of the employment relationship (Painter & Holmes, 2015). In order to terminate the employment relationship, the employer must serve a termination notice. Fixed term employment contracts refer to contracts that are formed when the employment relationship lasts for definite period until the completion of any particular project. In case of employment contract, no termination notice requires to be served as the employment terminates only when the project is completed.

Every employment contract must include implied or express terms and conditions and the rights and responsibilities of the employees and employers are mentioned within the contract as well. It shall also include any promises or special considerations that have been promised verbally before joining the company. Such terms and conditions must not be unconscionable or illegal. For making any changes within the employment contract regarding geographical relocation or changes in salary or any relevant significant changes with respect to the responsibilities or rights of the employees, the employees must be acknowledged about such changes by the employer.

In order to make the employment contract legally enforceable and binding, it is important that the employer obtain consent of the employees in writing and must include valuable consideration like bonus etc. It was ruled Wonko v Western Inventory Services Ltd. [2008], that the employee may either reject or accept the contract on grounds of constructive dismissal or decline the change to continue with the  employment terms and conditions that were already established until the employee is terminated.

Under the Employment Standards Act, the employee may be terminated after termination notice is served or the employee may be paid at the time of termination if no termination notice is not is served. Further, the employer may accept that the employment contract did not undergo any fundamental changes and continue with the formerly established contractual terms and conditions.

Employment contracts

In the given case, the most appropriate form of employment contract would be a fixed-term contract, given that the company wishes to continue with the new recruit for five years. Under such circumstances, the company need not serve any termination notice because the employment relationship shall terminate after the project is completed. In the event of any amendment to be made within the contract, any such changes can be made only after obtaining consent from the recruit. Such amended contract shall include any monetary benefit or consideration for accepting and signing the contract with the amended terms and conditions in order to make such contract legally valid as well as enforceable (Walsh, 2015).

This will address the issue arising in this scenario as fixed term contracts are appropriate for contracts that are valid for fixed period. The employee may decline the amended contract and commence legal action if changes within the employment contract without her consent or for constructive dismissal.

As per the facts of the case, the employee is known to be a good-performer but has a single complaint against her, which is lack of punctuality at work. Nevertheless, the employer failed to warn or inform her regarding her chronic late issue as she remains busy at work but the employer wishes to dismiss the employee on such ground.

In Canada, several organizations have attendance policies in place and non-compliance with such policies result in serious violation of the obligations that an employee owes to the employer. Even in the absence of a formal attendance policy within an organization, chronic lateness amounts to violation of employee obligation. If the employer establishes that chronic lateness is a justified ground for dismissal, an employee may be terminated on such ground. Nevertheless, in Cardenas v Canada Dry Ltd [1985], it was held if chronic lateness is the ground of dismissal, the employer must establish that he had kept record of all warning documents that had been given to the employee regarding the lateness.

However, the dismissal of an employee shall be considered as unjustified if the employer is unable to establish that any prompt and consistent action was taken against the chronic lateness issue. The employer must keep a record of all the documents including warning letters that have been issued to the employee regarding the late attendance problem.

 Here, in the given scenario, even after continuous warnings, the chronic problem of lateness continued with the employee and she did not even provide any medical evidence for such problem. Nevertheless, the employer failed to keep a record of all the documents related to warnings as an evidence which would otherwise have been an evidence to prove that the dismissal of the employee was justified as was ruled in the case of Cardenas v Canada Dry Ltd [1985].

The employee was promoted to the position of a Manager of the Product Development Lab due to his good performance.  Nevertheless, after promotion, the employee is unable to perform his duties as a manager and is alleged to have been terrible to the other employees or his subordinates. He is alleged to have cost the company of seven people and additionally, has deteriorated in his performance and productivity. Three complaints have been lodged against the company on human rights ground and the employee has also received warning notices. However, the employee did not change his attitude on the ground that he is unable to change his behavior while dealing with the employees or subordinates.

As per the Canadian Employment Law, an employer is entitled to dismiss an employee if it is established that the employee is incompetent to perform the delegated responsibilities. Incompetence refers to the lack of capability to fulfill any mandatory standard or is negligent towards the employee, lacking required attentiveness (Li, 2017). In the case of Boulet v Federated Co-operatives Ltd [2001], the court held that it is important for the employer to establish that the incompetence in the performance of the employee was entirely the fault of the employee and  that the employee was competent to carry out his responsibilities and avoid such incompetence.

Further, the employer must further prove that he or she had no knowledge about the incompetence of the employee or that he lacked the necessary skills to carry out the delegated responsibilities at the time of recruitment (Tucker & Stromdahl, 2017). Furthermore, the dismissal of an employee must not be made merely due to any particular or sole incident of incompetence demonstrated by such employee in carrying out his obligations. The dismissal ground must be accompanied with other deliberate misconduct that establishes that the employee is highly insignificant for the post he or she is holding within the organization.

As per the facts of the given scenario, it is observed that although the employee performs his responsibilities, his other deliberate misconducts with the other employees and subordinates have cost the company seven employees apart from the damage caused to the productivity and performance of the company. The employee was also provided with written warnings; however, such warnings did not restrain him from changing his attitude towards the employees or subordinates, in particular.

If the employee is dismissed, it can be proved as justified as the promotion of the employee was given for his good performance and as he was capable of getting work done. However, after being promoted, he spent maximum time in disciplining and supervising the employees, which eventually affected his performance, hence, the productivity of the company amounting to incompetency to fulfill his employment requirements as was held in Boulet’s case.

References

Boulet v Federated Co-operatives Ltd [2001] MBQB 174

Bratton, J., & Gold, J. (2017). Human resource management: theory and practice. Palgrave.

Canada, E. (2018). Age-friendly workplaces: Promoting older worker participation – Canada.ca. [online] Canada.ca. Available at: https://www.canada.ca/en/employment-social-development/corporate/seniors/forum/older-worker-participation.html [Accessed 14 June. 2018].

Cardenas v Canada Dry Ltd [1985] O.J. No. 1724 (Dist. Ct.).

Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A. C. L., … & Prassl, J. (Eds.). (2016). The contract of employment. Oxford University Press.

Hudson, D., & Lawyer, T. M. L. (2017). The Aging Workforce and Human Rights Matters.

Jones v Tsige [2012] 108 O.R. (3d) 241 ONCA 32

Lam, H. (2016). Social media dilemmas in the employment context. Employee Relations, 38(3), 420-437.

Li, C. (2017). You Can’t Fire Me: The Problems with Wrongful Dismissal Damages in Canada. WJ Legal Stud., 7, 1.

McDaniel, S. A., Wong, L. L., & Watt, B. (2015). An Aging Workforce and the Future Labour Market in Canada.

Moore, T. J. (2015). The employment effects of terminating disability benefits. Journal of Public Economics, 124, 30-43.

Painter, R., & Holmes, A. (2015). Cases and materials on Employment Law. Oxford University Press, USA.

Taylor, S., & Emir, A. (2015). Employment law: an introduction. Oxford University Press, USA.

Tucker, E. M., & Stromdahl, A. (2017). Fixed-Term Contracts and Principle of Equal Treatment in Canada. IUSLabor.

Walsh, D. J. (2015). Employment law for human resource practice. Nelson Education.