Promotion comes with a raise, yes?
My radio show producers at Newstalk 1010, George Tsilfidis and Jason Chapman, recently put together a list of questions about where the law stands on issues that frequently come up in conversations about today’s workplace. Some of the answers to those questions may surprise you:
Q Biermarkt told its waitresses to ditch the golf shirts and leggings in exchange for skimpy blue dresses. The story blew up, with two employees quitting their jobs and filing complaints with the Human Rights Tribunal of Ontario. The Toronto-based Belgian-style brasserie, after intense pressure from the media and public, reversed its policy. But was it legal?
A Requiring women to dress in a sexualized manner in the workplace constitutes gender discrimination. In a 2004 case, Andrea Mottu, who worked for Barfly Nightclub in Victoria, was awarded $6,000 because she was required to wear a bikini top or be replaced on a “Hawaiian Night.” Males were subject to no analogous dress requirements. And in another case in British Columbia, Karolina Bil made a claim against the Shark Club for requiring women to show cleavage and wear miniskirts, which generated sexual comments from its customers. When only women are required to dress provocatively it is almost always sexual discrimination. An exception exists where the attire is the basis of the brand, such as Hooters. Existing employees cannot be forced to make fundamental changes to their attire and doing so would be constructive dismissal.
Q Can an employee be given a promotion without a pay raise?
A Pay need not be fair. An employer cannot demote you or reduce your wage without risking a constructive-dismissal action. But it can give you additional responsibilities without your wages being affected. If the change is fundamental, an employee has the right to refuse it in some circumstances — pay raise or not.
Q If an employer wishes to renegotiate an employee’s salary downward due to financial issues, can an employee who refuses be terminated?
A Any employee can be terminated for no reason at all, unless the termination is in violation of the Labour Relations Act or Human Rights Code. However, it would be a wrongful dismissal. The courts have found employers can reduce employees’ wages up to about 15 per cent without it constituting a constructive dismissal, which would permit the employee to resign and sue. However, any reduction in wages gives rise to an action in breach of contract, allowing an employee to sue for the difference for a period of reasonable notice.
Q How much time is someone entitled to for breaks each day?
A. An employee is not entitled to any breaks other than a 30-minute unpaid lunch period after five hours of work. That varies slightly with each province but none require breaks in addition to that time. Some employers permit that, and, if that is changed, that change could be a constructive dismissal. But there is no obligation for an employer to provide additional breaks.
Q Can an employer legally ask a job applicant for a drug test?
A The courts have consistently found that drug testing violates provincial human rights codes unless the employee works in a safety-sensitive position and there is an actual drug issue in the workplace. In other words, a secretary in an office could never be required to take a drug test but an airline pilot or an employee dealing with heavy machinery in an oilsands plant might be. The same applies to random testing.
Q Are employees entitled to sick leave pay?
A There are no laws requiring employers to pay employees when they are sick. However, when employers have sick pay plans they must pay it if an employee qualifies. But nothing requires an employer to introduce such a plan in the first place and an employer can terminate its plan with reasonable notice.
Q Is there a three-strikes-you’re-out rule?
A Many employees (and employers) falsely believe that after three offences an employee can be terminated with cause and the employer will have immunity from any wrongful dismissal claim. An employee can be fired for a very serious offence, even if it is their first. However, they could commit 10 minor offences without it reaching the level of a termination for cause. As well, the employee’s particular situation must be considered. Long-service employees cannot be fired for the same offences as made by short-service workers. If the nature of the employment is antithetical to the offence, say one involving integrity for a chief financial officer, cause would be found to exist when it may not be for an employee in a position where integrity is not fundamental to employment.