Money is the cause of most workplace disputes. Employees and employers each feel that they deserve more of it and each will invariably go to great lengths to keep it in their own pockets, leaving less for the other. The following are some of the most common money-saving schemes that employers try to pull on employees, followed by next week’s column on employees’ favourite tricks.
Alleged poor performance:
Employers hate paying employees not to work for them. But this is exactly what the law of severance requires. To fire an employee in Canada, they must be paid fair severance. However, employers attempt to circumvent this law by “building” a case for poor performance, hoping it will reduce their severance obligation or eliminate them altogether. Most of these attempts will fail. Unless an employee is objectively incompetent, courts do not award less severance for alleged poor performance.
Similarly, why would an employer reward an employee with a bonus, if he is about to be fired? Most will not, claiming that the bonus was a matter of discretion. However, seldom are bonuses truly discretionary, no matter how they are described. If there is a reasonable expectation for payment, based on past practices, it must still be paid.
Employers encourage and then reward employees who work around the clock. But then they hate to pay them for it. One common trick is to pile on so much work that the employee has no choice but to stay late and since they were not specifically asked to work overtime, employers argue they have no entitlement to extra pay for it. Unaware that employment legislation requires overtime payment, without exception, for any overtime hours actually worked, regardless of the reason, many employees are routinely underpaid.
Most employers now include these in their contracts, no matter how junior or administrative the employee. The problem is that they expect employees to comply with restrictions, such as not working in their industry for long periods of time, while refusing to pay them severance during this period. For a court to uphold a post employment restriction, it must agree that it is fair. Employers cannot expect employees to stay at home, without compensating them for that time.
• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.
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