Transcript: Labour Law #2 | Apr 18, 2000

Maureen Taylor sits in a studio with yellow walls and a small TV set in the background, which reads “More to life.”

Maureen is in her late thirties, with wavy blond hair in a bob. She’s wearing a green zip-up blazer.

She says HI, I'M MAUREEN TAYLOR.
IF YOU'RE HAVING PROBLEMS
IN THE WORKPLACE, FIND OUT IF THE LAW
IS ON YOUR SIDE WITH EMPLOYMENT
LAWYER JANICE RUBIN NEXT ON
MORE TO LIFE.

(music plays)
The opening sequence shows a wooden table with a small lit candle as several words fly by: Nutrition, medicine, prevention, treatment, health.
Fast clips show different sets of hands performing activities on the table such as pulling petals from a daisy, drawing a big red heart, tuning a violin, flipping through the pages of a book, cooking, and pouring a glass of red wine.
In animation, the title appears inside the shape of a house: “More to life.”

Then, Maureen reappears in the studio.

MAUREEN says WELCOME TO “MORE
TO LIFE.”
IF YOU WERE DISMISSED FROM
YOUR JOB, WOULDN'T IT BE
NICE IF HUNDREDS OF PEOPLE
BANDED TOGETHER TO DEMAND
YOU BE REINSTATED. FORMER
NATIONAL BALLET DANCER
KIMBERLY GLASGOW HAS THAT
KIND OF SUPPORT BEHIND HER.
FOR THE REST OF US, THERE'S
THE STRENGTH OF THE LAW, AND
WE'RE GOING TO LEARN WHAT IT
SAYS ABOUT WORKPLACE RIGHTS.
JANICE RUBIN'S SPECIALTY IS
EMPLOYMENT LAW.
WHETHER YOU'RE AN EMPLOYER
OR AN EMPLOYEE, GIVE US A
CALL WITH YOUR QUESTIONS.

Maureen recites the Toronto phone numbers and a mail address which appear in captions.
Janice is briefly seen. She is in her thirties with her short blond hair in a fringe, and wears a dark brown jacket over a beige patterned blouse.

MAUREEN holds up a book says AND JANICE IS
ALSO THE AUTHOR, SHE'S
WRITING A NEW BOOK SHE TELLS
ME BUT THE BOOK SHE HAS OUT
NOW IS CALLED “THE PRACTICAL
GUIDE TO THE LAW OF
TERMINATION IN ONTARIO.”
CONGRATULATIONS.
WHAT'S THE NEW ONE ABOUT?

JANICE says THE NEW ONE
WILL BE A BASIC GUIDE TO
EMPLOYMENT FOR ALL CANADIANS,
SO IT WILL TALK ABOUT
TERMINATION BUT ALSO
MID-EMPLOYMENT RELATIONSHIP ISSUES.

MAUREEN says WHAT'S A
MID-EMPLOYMENT RELATION- ?

JANICE says FOR EXAMPLE
SEXUAL HARASSMENT,
CONSTRUCTIVE DISMISSAL.
THAT HAPPENS USUALLY BEFORE
PEOPLE ARE PREPARED TO SAY
“I'VE BEEN DISMISSED.”
COMPENSATION HEALTH AND
SAFETY, EMPLOYMENT CONTRACTS CONFIDENTIALITY -

A caption reads “Janice Rubin, Labour Lawyer.”

MAUREEN says IT'LL BE A
LITTLE THICKER, I GUESS.

JANICE says
SUBSTANTIALLY BIGGER AND
GEARED TOWARD THE MAINSTREAM
AUDIENCE.

MAUREEN says KIMBERLY GLASGOW,
GIVE US A QUICK RECAP,
WHAT'S HER FIGHT ABOUT?

JANICE says NOW I'M NOT
HER LAWYER, BUT FROM WHAT I
UNDERSTAND HER FIGHT IS
ABOUT THE END OF YEAR WORK AS
A DANCER WITH THE NATIONAL
BALLET OF CANADA. IT APPEARS
TO ME FROM WHAT I READ IN
THE NEWSPAPER THAT THERE WAS
AN AGREEMENT TO HANDLE THE
DISPUTE ON HER DISMISSAL BY
WAY OF AN ARBITRATION.
SHE SAYS THAT THE FOUNDATION
OF HER DISPUTE IS SHE WAS
TERMINATED BECAUSE SHE'S 39
YEARS OLD.
SHE SAYS IT'S A AGE-RELATED
ISSUE THAT HAS HUMAN RIGHTS
ISSUES CONNECTED TO IT. THE
NATIONAL BALLET OF CANADA
SAYS NO, IT HAS NOTHING TO
DO WITH HER AGE, IT'S FOR
ARTISTIC REASONS.
THERE WAS A HEARING IN FRONT
OF THE ARBITRATOR AND ON AN
INTERIM BASIS, PENDING FINAL
DECISION ON THE MATTER, THE
ARBITRATOR HAS REINSTATED
HER AND NOW THERE'S A
SECONDARY DISPUTE AS TO
WHETHER THE TERMS OF THAT
INTERIM ORDER HAVE BEEN
FULFILLED BY THE NATIONAL BALLET.
SHE SAYS “NO, I HAVEN'T --
I'VE BEEN REINSTATED BUT I'M
STILL DOING STRETCHING
EXERCISES AT THE BAR.
I'M NOT CAST IN A ROLE.”

MAUREEN says CAST IN A ROLE.
SO THEY'RE PAYING HER AND
THEY'RE SAYING THAT'S
REINSTATING HER EVEN THOUGH
SHE DOESN'T GET TO DANCE --

JANICE says I GATHER
THAT'S THE CASE AND WHAT I
WOULD ANTICIPATE THEIR
ARGUMENT WOULD BE, IS THAT “GIVEN
THE TIMING OF THE
ARBITRATOR'S ORDER, WE'VE
ALREADY CAST EVERYBODY FOR
SWAN LAKE OR THE NUTCRACKER SUITE.
WE'VE JUST GOT NOWHERE
ELSE TO PUT HER.”
THAT WOULD BE MY GUESS AS TO
WHAT THEIR POSITION IS.

MAUREEN says OKAY.
HOW DIFFICULT IS IT GOING TO
BE FOR HER TO PROVE AGE
DISCRIMINATION IN THIS CASE.

JANICE says WELL, IT
SEEMS TO ME THE STRENGTH OF
HER CASE IS THE KIND OF WORK
THAT SHE DOES.
BECAUSE THERE CERTAINLY IS A
HISTORY OF AGE
DISCRIMINATION CASES FOR
WOMEN IN THE PERFORMANCE ARTS.
CERTAINLY SOUTH OF THE BORDER.
THERE ARE CASES WHERE WOMEN
WHO WERE “ON-AIR
PERSONALITIES” HAVE BEEN LET
GO BECAUSE OF AGE-RELATED
REASONS, AND THEY'VE BEEN
SUCCESSFUL IN SHOWING THAT
THAT IS THE FOUNDATION OF
THE TERMINATION, AND IT'S
NOT LAWFUL.
SO SHE'S LUCKY THERE.
ASIDE FROM THAT, I'M NOT
SURE WHAT THE SPECIFIC FACTS
OF THE CASE ARE, SO I
COULDN'T REALLY MEASURE IT.
BUT IT IS AN INTERESTING
ISSUE AS TO “AT WHAT POINT IN
TIME DO BALLET DANCERS, OF
WHATEVER SEX, FEMALE OR MALE,
PASS THEIR PRIME,”
AND AT WHAT POINT CAN A
BALLET COMPANY LEGITIMATELY
AND LAWFULLY CONSIDER THE AGE?

MAUREEN says THERE'S A BALLET
DANCER OUT WEST AS WELL
WHO'S SUING THE -- IS IT THE
ALBERTA BALLET -- BECAUSE
HER CONTRACT WASN'T RENEWED
WHEN SHE CAME BACK FROM
MATERNITY LEAVE.
DOES THE MATERNITY LEAVE ADD
A LITTLE SPIN TO THAT CASE?

JANICE says WELL IN ALL PROVINCIAL
JURISDICTIONS THERE IS
LEGISLATION LIKE OUR
EMPLOYMENT STANDARDS ACT
WHICH REQUIRES EMPLOYERS TO
REINSTATE EMPLOYEES
FOLLOWING THE TAKING OF
PREGNANCY AND PARENTAL LEAVE.
NOW HOW THAT INTERACTS WITH
A TERM CONTRACT, WHICH
BASICALLY SAYS TO EMPLOYEE,
WE WILL GIVE YOU WORK FROM
DAY ONE TO DAY 60, FOR
EXAMPLE, HAS NEVER BEEN
CLEAR TO ME.
I'VE NOT SEEN ANY CASES ON THAT.
BUT CERTAINLY, IF SHE COULD
SHOW THAT THE REASON WHY SHE
HADN'T GONE BACK TO THE JOB
WAS RELATED TO HER PREGNANCY,
THERE'S PROBABLY A VIOLATION
OF THE PROVINCIAL STANDARDS
IN ALBERTA.
FURTHERMORE, PREGNANCY IS
CONSIDERED IN ALL
JURISDICTIONS NOW TO BE A
SEX CHARACTERISTIC SO YOU
CAN SHOW THAT PREGNANCY
DISCRIMINATION IS SEX
DISCRIMINATION SO THERE MAY
BE A HUMAN RIGHTS ASPECT TO
HER CASE AS WELL.

MAUREEN says INTERESTING.
NOW, MOST OF THE VIEWERS
WON'T BE BALLET DANCERS
TODAY, SO LET'S TALK ABOUT
PRIVACY IN THE WORKPLACE AND
BILL C...

JANICE says SIX.

MAUREEN says C-6 WHICH IS NOW LAW.

JANICE RUBIN says THAT'S RIGHT.

MAUREEN says GOES INTO EFFECT JANUARY?

JANICE says I THINK THE
DEPARTMENT HAS GIVEN
BUSINESSES A YEAR TO GET
THEIR ACTS TOGETHER AND PLAN
FOR THE IMPLEMENTATION SO I
THINK IT'S ABOUT A YEAR.

MAUREEN says HOW WILL THAT
AFFECT PEOPLE IN THE WORKPLACE?

JANICE says WELL, IT'S
NOT ABSOLUTELY CLEAR WHO IT
WILL AFFECT.
WELL, IN ITS TOTALITY.
INITIALLY WE KNOW IT WILL
AFFECT PEOPLE WHO WORK FOR
FEDERALLY REGULATED ENTITIES,
FOR EXAMPLE BANKS, TELEPHONE
COMPANIES, INTERPROVINCIAL
UNDERTAKINGS, ANY
ORGANIZATION WITHIN THE
FEDERAL JURISDICTION.
AND FOR THOSE PEOPLE, THE
PERSONAL INFORMATION, THEIR
PERSONAL INFORMATION HAS TO
BE COLLECTED IN A VERY
PARTICULAR WAY.
THE PURPOSE OF THE
COLLECTION OF PERSONAL
INFORMATION HAS TO BE
CLEARLY COMMUNICATED TO
THESE EMPLOYEES, AND THEY
MUST GIVE THEIR CONSENT FOR
THE COLLECTION OF THE
PERSONAL INFORMATION.
WHAT WE DON'T KNOW YET IS
HOW BROADLY PERSONAL
INFORMATION IS GOING TO BE DEFINED.
WE DON'T KNOW THAT.
WE'LL SEE AS THE LEGISLATION
IS USED AND INTERPRETED BY COURTS.
THE ACT ALSO, THOUGH,
FORESEES APPLICATION ACROSS
THE COUNTRY.
AND THERE'S A BIT OF
CONSTITUTIONAL ISSUE THERE
AS TO WHETHER A FEDERAL
PIECE OF LEGISLATION CAN
AFFECT SOMETHING LIKE TVO,
FOR EXAMPLE, WHICH IS A
PROVINCIALLY REGULATED
ENTITY.

MAUREEN says RIGHT.

JANICE says SO IT'S A
LITTLE UNCLEAR HOW FAR IT'S
GOING TO GO.

MAUREEN says I'M WONDERING IF
THIS WILL LEAD US DOWN THE
ROAD TO -- AND SOME
EMPLOYERS DO ASK YOU ABOUT
YOUR HEALTH RIGHT NOW.
I'M WONDER IF THIS
WHOLE GENETIC TESTING THING
IS GOING TO -- ARE THEY
TRYING TO HEAD THAT SORT OF
THING OFF?

JANICE says WELL,
WHAT'S HAPPENING, I WOULD
SAY THAT THERE'S A TREND OF
MORE TESTING, MORE
INFORMATION GATHERING PRIOR
TO OFFERS OF EMPLOYMENT
BEING MADE.
AND SO GENETIC TESTING, FOR
EXAMPLE, THE RESULTS OF A
GENETIC TEST WOULD CERTAINLY
BE PERSONAL INFORMATION
UNDER THE ACT.
SO YOU WOULD HAVE TO GIVE
YOUR CONSENT TO HAVE THAT
INFORMATION BE COLLECTED,
AND THE REASON BEHIND THE
COLLECTION OF THE PERSONAL
INFORMATION WOULD HAVE TO BE
LEGITIMATE. AND IF THE EMPLOYER, BY THE
WAY, CHANGES THE REASON,
THAT HAS TO BE COMMUNICATED
AGAIN TO THAT EMPLOYEE AND
ANOTHER CONSENT HAS TO BE SIGNED.

MAUREEN says OKAY.
ALL RIGHT, WE'RE TALKING
ABOUT EMPLOYMENT LAW THIS
AFTERNOON WITH JANICE RUBIN.
IF YOU HAVE A QUESTION ABOUT
YOUR RIGHTS IN THE WORKPLACE,
EITHER ANNE AS AN EMPLOYEE
OR AN EMPLOYER GIVE US A CALL.

Maureen repeats the phone numbers and e-mail address.

Maureen continues AND MARIO IS IN TORONTO.
HI MARIO, WELCOME.

Mario says HI.

MAUREEN says HI.

Mario says HOW ARE YOU
TODAY?

MAUREEN says GOOD, THANK YOU.

Mario says GOOD.
I'D LIKE TO KNOW WHAT'S
THE LAW FOR LIKE BREAK OR
LUNCHTIME IN ONTARIO.
I WORK SHIFT BETWEEN EIGHT
AND TEN HOUR IN A PRIVATE
CLUB, AND THEY SAY BECAUSE
I'M A SMOKER THAT THAT IS MY
HALF-HOUR BREAK.

JANICE says UNDER THE
EMPLOYMENT STANDARDS ACT,
YOU NEED TO HAVE A BREAK OF
A HALF AN HOUR AFTER EVERY
FIVE HOURS OF WORKING.
SO THE SIMPLE ANSWER TO YOUR
QUESTION IS A HALF AN HOUR
AFTER FIVE HOURS.
THE MORE COMPLICATED ANSWER
IS THAT THERE IS NOW A
BEGINNING BODY OF CASELAW
ABOUT SMOKERS, AND WHETHER
HUMAN RIGHTS LEGISLATION
COVERS SMOKERS.
ALCOHOLISM IS CONSIDERED TO
BE A DISABILITY UNDER THE
HUMAN RIGHTS CODE.
SMOKING, BECAUSE IT'S AN
ADDICTION AND LOOKS A LITTLE
BIT LIKE ALCOHOLISM MAY VERY
WELL BE THE SAME THING IN
WHICH CASE, IF YOU NEED TO
HAVE A BREAK MORE OFTEN THAN
EVERY FIVE HOURS, YOUR NEED
MAY BE -- THE EMPLOYER MAY
BE REQUIRED TO ACCOMMODATE
YOUR NEED BY GIVING YOU MORE
BREAKS THAN THAT.
AND THAT MAY BECOME A HUMAN
RIGHTS ISSUE.

MAUREEN says I GUESS RIGHT
NOW WHAT THEY'RE SAYING IS
EVERY TIME HE GOES OUT FOR A
SMOKE THEY'RE ADDING UP ALL
OF THOSE MINUTES AND SAYING
YOU'VE TAKEN YOUR HALF HOUR
AND SO YOU DON'T GET LUNCH.
UNTIL THIS IS SETTLED IN
COURT, DO THEY HAVE A POINT?

JANICE says UM... I
WOULD... WELL, YOU'RE
SUPPOSED TO BE ABLE TO TAKE
THE HALF AN HOUR IN ONE CHUNK.
SO I'M NOT ENTIRELY HAPPY
ABOUT THE INTERMITTENT
ADDING UP FIVE MINUTES HERE
AND THERE.
I'D BE CURIOUS TO KNOW WHAT
THE HUMAN RIGHTS COMMISSION
WOULD SAY WHEN YOU CALL THEM
BECAUSE THERE THERE IS A
REQUIREMENT WHEN THAT YOU BE
ACCOMMODATED AND THE
STANDARD ACCOMMODATION AS I UNDERSTAND IT
IS TO THE POINT OF UNDUE HARDSHIP.
TAKING A HALF-HOUR BREAK OR
PERHAPS TWO OTHER BREAKS OF
FIVE MINUTES OR HOWEVER LONG
YOU REQUIRE TO HAVE A
CIGARETTE PROBABLY IS BELOW
THE STANDARD OF UNDUE HARDSHIP.

MAUREEN says ON THE COMPANY, YOU MEAN?

JANICE says ON THE
COMPANY, YEAH.

MAUREEN says THANKS, MARIO.
PAT IS IN TORONTO.
HELLO PAT.

A female voice says HELLO.
I'M REALLY ABLE -- REALLY
HAPPY I'M ABLE TO ASK A
COUPLE QUESTIONS.
I HAVE A REALLY INTERESTING CASE.
I WORK IN THE INFORMATION SERVICES
DEPARTMENT HERE IN TORONTO AND
I'VE BEEN IN AN ENVIRONMENT
OF ALL MALE ENVIRONMENT AND
I'VE GONE THROUGH A
DIFFICULT PERIOD OF DEALING
WITH MY CO-WORKERS AND PEERS
IN TERMS OF TRYING TO GET
EQUAL SKILLS DEVELOPMENT AND
TRAINING, INFORMATION, ETCETERA TO DO MY JOB.
AND IN ONE PARTICULAR
INSTANCE THEY BROUGHT IN AN
INDIVIDUAL WHO WAS A
RELATIVE OF SOMEONE WHO
WORKED IN THE DEPARTMENT.
THEY GAVE HIM ALL THE
TRAINING HE NEEDED.
HE DIDN'T HAVE ANY FORMAL TRAINING.
I WAS ALREADY TRAINED AND
PARTIALLY CERTIFIED AND THEY
GAVE HIM TRAINING FROM THE
LEAST TO THE GREATEST OF
ADVANCED INFORMATION IN OUR
DEPARTMENT SO THAT HE WAS
ACTUALLY ELEVATED OVER ME,
AND THEN HE WAS -- I WOULD
HAVE TO GO TO HIM FOR INFORMATION.
SO I WOULD LIKE TO KNOW WHAT
DO YOU THINK -- I'M NO LONGER THERE.
I'VE JUST LEFT, I'VE GOT A
BETTER JOB, BUT I'D LIKE TO
KNOW WHAT YOUR OPINION IS ON THAT.

JANICE says WELL,
CONGRATULATIONS ON LEAVING
THE ENVIRONMENT AND FINDING
THE BETTER JOB.
MY OPINION TO YOU WOULD BE
TO LEAVE AND FIND SOMETHING
BETTER - IT SOUNDS A LITTLE
BIT ODD AS YOU DESCRIBE IT.
IT SOUNDS LIKE - CERTAINLY
THE WAY YOU'RE FRAMING THE
ENVIRONMENT, THAT THE ISSUE
OF YOUR SEX CAME INTO PLAY
AND PERHAPS YOU WERE TREATED
DIFFERENTLY IN THIS
ENVIRONMENT BECAUSE YOU WERE
FEMALE AND THE ONLY FEMALE
WITHIN THE ENVIRONMENT.
SO IN THAT CASE, SEX IS A
PRESCRIBED GROUND UNDER THE
HUMAN RIGHTS CODE, UNDER THE
HUMAN RIGHTS CODE YOU ARE
NOT TO BE TREATED WITH
DISCRIMINATION AS A RESULT OF SEX.
SO PERHAPS THERE IS A BREACH
OF THE CODE THERE.
YOU MIGHT WANT TO CALL DOWN
TO THE COMMISSION AND SPEAK
TO ONE OF THE INTAKE
OFFICERS AND SEE WHAT THEIR
READ OF THE SITUATION IS.
YOUR FORMER EMPLOYER IS OPEN
TO ARGUE THAT THE
DIFFERENTIAL TREATMENT WAS
BASED ON SOMETHING OTHER THAN SEX.
THE HUMAN RIGHTS CODE DOES
NOT MANDATE EMPLOYERS TO
TREAT ALL EMPLOYEES THE SAME.
YOU CAN HAVE DIFFERENT
TREATMENT BUT THE TREATMENT
NOT BE BASED ON THINGS LIKE
SEX OR RELIGION OR ETHNIC
ORIGIN OR FAMILY STATUS,
THAT SORT OF THING.
SO IN YOUR EXAMPLE IT SOUNDS
LIKE SEX MAY BE WORKING
AGAINST YOU SO YOU'D WANT TO
TALK TO THE COMMISSION ABOUT IT.

MAUREEN says AND IN THIS CASE,
PERFORMANCE ENHANCEMENT,
TRAINING COURSES, IT'S NOT
QUITE LIKE SALARY
DIFFERENTIATION --

JANICE says IT'S ALL
RELATED. EMPLOYMENT-RELATED
DISCRIMINATION IS NOT JUST “I
LOST MY JOB BECAUSE I WAS
FEMALE,” IT ALSO CAN BE “I DID
NOT GET PROMOTED, I DID NOT
RECEIVE THE SAME KIND OF
BENEFITS THAT MY MALE
COUNTERPARTS RECEIVED.”

MAUREEN says PAT, YOU SAID
YOU HAD A COUPLE OF QUESTIONS.
DID YOU WANT TO ASK ONE MORE?

Pat says YES, THE OTHER
ONE, AND IT'S RELATED TO
WHAT I JUST EXPLAINED TO YOU,
I HAD GONE TO OUR GRIEVANCE
PERSON THERE, EVEN THOUGH
OUR JOB WAS LABELLED
PROFESSIONAL, I WENT TO HIM.
WE ARE TO TAKE OUR PROBLEMS
TO THE GRIEVANCE OFFICER ANYWAY.
AND SO I DID.
THEY DID FIND DISCREPANCIES
AND FAVOURITISM AND OTHER
THINGS THAT HAD TAKEN PLACE
BUT WHAT THEY DID WAS
COVERED IT UP.
THEY LEFT ME -- THIS PERSON
DEMOTED ME IN ONE SENSE,
EVEN THOUGH HE HAD NO PROOF
OF ANY BAD PERFORMANCE, HE
PUT ME IN A JOB THAT WAS
NON-TECHNICAL, WHERE I HAD
BEEN DOING ALL TECHNICAL
BEFORE IN ORDER TO PUT THIS
PERSON, THIS NEW PERSON HE
HAD BROUGHT ON BOARD AND
GROOMED TO TAKE MY POSITION.
IT WAS JUST LIKE TAKING BITS
AND PIECES OF MY PERMISSION
AWAY WITHOUT EVEN NOTIFYING
ME OR SAYING ANYTHING.
SO I TOOK IT TO THEM, SO
THEY SORT OF HUSHED IT UP.
THEY EVENTUALLY WORKED IT
BACK WHERE I STARTED FROM,
FROM THE VERY BEGINNING, SO
INSTEAD OF BEING ELEVATED TO
A HIGHER, TO LEARN MORE OR
TO DEVELOP THE SKILLS THAT I
HAD, I WAS NOW BACK AT
SQUARE ONE AFTER TWO AND A
HALF YEARS.
SO I WANTED TO KNOW, DO YOU
THINK THAT THERE WAS A COVER-UP?
AND IF SO, DOES THAT ALSO
GIVE ME MORE OF A, YOU KNOW,
A FORCE TO BE ABLE TO DO
SOMETHING ABOUT THIS?

MAUREEN says I DON'T KNOW IF
YOU CAN SAY --

JANICE says NO, I DON'T
KNOW THE FACTS OF THE
SITUATION REALLY SO, I CAN'T
SAY WHETHER THERE'S A
COVER-UP OR NOT.
WHAT I CAN TELL YOU VERY
GENERALLY IS THAT IF YOU ARE
COVERED UNDER A COLLECTIVE
AGREEMENT YOU HAVE CERTAIN
GRIEVANCE RIGHTS AND IT
SOUNDS LIKE YOU'RE
DESCRIBING AT LEAST THE
FIRST STEP.
THERE ARE USUALLY THREE
STEPS UNTIL YOU GET TO AN
ARBITRATION, AND THEN AN
ARBITRATOR WILL MAKE A
DECISION AS TO WHETHER THE
TERMS AND CONDITIONS OF YOUR
EMPLOYMENT WERE CHANGED
CONTRARY TO THE COLLECTIVE
AGREEMENT.
AND THE ARBITRATOR ALSO HAS
A JURISDICTION TO CONSIDER
HUMAN RIGHTS ISSUES, HIM OR HERSELF.
SO YOU CAN ARGUE THAT AT
THAT STAGE AS WELL.
NOW IF IN THE COURSE OF YOUR
GRIEVANCE, AND YOU KNOW,
GOING THE ROAD LEADING TO
ARBITRATION, YOU FEEL THAT
YOUR UNION OR IN SOME CASES
PROFESSIONAL ASSOCIATION HAS
NOT HANDLED THE MATTER
PROPERLY, THERE'S A
MECHANISM UNDER THE LABOUR
RELATIONS ACT WHERE YOU CAN
BRING A COMPLAINT AGAINST YOUR UNION.
AND AN ARBITRATOR ACTING
UNDER THAT ACT WILL MAKE A DECISION.

MAUREEN says AND IS THAT --
YOU GET MORE INFORMATION ON
THAT THROUGH THE MINISTRY OF LABOUR?

JANICE says YEAH, THEY
CAN HELP YOU OUT ON THAT, OR
A LAWYER, SURE.

MAUREEN says OKAY.
PAT, THANK YOU.
AMIEL IS IN THUNDER BAY.
HI AMIEL.

A male voice says YEAH, HELLO.

MAUREEN says HELLO.
AND WHAT'S YOUR QUESTION?

Amiel says I WANTED TO FIND
OUT IF A PERSON IS WORKING
ON A JOB, AND THERE'S NO
UNION AT ALL, AND THEN THEY
DECIDE TO JOIN A UNION, THE
WHOLE GROUP, AND YOURSELF --
MYSELF, I DON'T WANT TO JOIN
THE UNION.
CAN THEY FIRE ME FOR NOT
JOINING THE UNION?

JANICE says NOW LET ME
SAY AT THE OUTSET THAT A
UNIONIZED WORKPLACE IS NOT
PART OF MY PRACTICE.
BUT WHAT I WILL TELL YOU
VERY GENERALLY IS UNDER THE
LABOUR RELATIONS ACT THERE
IS A WHOLE CODE IF YOU LIKE,
OF PROTECTION FOR EMPLOYEES
IN UNION-RELATED ACTIVITIES.
AND THE CODE WOULD PREVENT
SOMEBODY FROM BEING
DISCIPLINED OR BEING
TERMINATED AS A RESULT OF
UNION-RELATED ACTIVITIES SO
THAT'S WHERE YOU WOULD WANT
TO LOOK TO SEE WHETHER IN
THIS SPECIFIC INSTANCE
YOU'RE COVERED.

MAUREEN says YEAH, I CAN'T
REMEMBER IF THIS PROVINCIAL
GOVERNMENT CHANGED THAT THEY
MADE A LOT OF CHANGES TO
THE --

JANICE says YEAH, BUT I
THINK STILL THE -- THE CORE
PROTECTIONS ARE STILL THERE.

MAUREEN says OKAY.
SO IS THERE SUCH A THING IN
ONTARIO AS A CLOSED SHOP ANYMORE?
YOU KNOW, WHEN I WAS AT CBC
AND THINGS, YOU HAD TO
BELONG TO THE UNION.

JANICE says WELL WHAT
HAPPENS IS THAT IF THERE'S A
UNION DRIVE, AND IF THERE
IS -- THE UNION'S ACCEPTED
BY, I CAN'T REMEMBER WHAT
THE MAJORITY, IS TWO-THIRDS,
OR 51 percent, WHATEVER IT IS, THEN
EVERYBODY BELONGS TO THE UNION.

MAUREEN says AND IT'S NOT SO
MUCH OF YOU WOULD BE FIRED
BECAUSE YOU WOULDN'T BELONG,
IT'S JUST YOU HAVE TO AT
LEAST PAY UNION DUES, I GUESS.

JANICE says THAT'S
RIGHT, THAT'S RIGHT.

MAUREEN says BUT CHECK THE
CODE FOR PROTECTION.

JANICE says THAT'S RIGHT.

MAUREEN says THANKS AMIEL.
LYNN IS IN LISTWELL.
HI LYNN.

Lynn says HOW HI, HOW ARE
YOU?

MAUREEN says GOOD, THANKS.

Lynn says YES, MY QUESTION
WAS TO BACKTRACK AGAIN ABOUT
THE BREAKS AND LUNCHES.
I WAS EMPLOYED IN A PLACE
THAT IF YOU WERE LEFT IN
CHARGE, YOU WERE NOT ALLOWED
TO LEAVE THE BUILDING, SO
THEREFORE I COULD WORK EIGHT,
NINE HOURS AND NOT BE ABLE
TO GET A LUNCH OR ANYTHING
BECAUSE I WASN'T ALLOWED TO
STEP OUTSIDE.
IS THAT LEGAL?

JANICE says WELL WHAT
YOU HAVE TO DO -- AGAIN, YOU
PROBABLY HAVE TO PHONE THE
MINISTRY OF LABOUR AND TALK
TO THE EMPLOYMENT PRACTICES BRANCH.
BECAUSE THERE IS -- THERE IS
SOME FLEXIBILITY AFFORDED TO
EMPLOYERS IN TERMS OF THIS
ONE HALF AN HOUR BREAK SO
FOR EXAMPLE IT DOESN'T
ALWAYS MEAN THAT YOU ARE
COMPLETELY FREE TO LEAVE THE BUILDING.
WHAT IT DOES MEAN, AS I
UNDERSTAND HOW THAT
PROVISION OF THE ACT IS
INTERPRETED, IS THAT DURING
THAT HALF AN HOUR YOU ARE
NOT OCCUPIED, ENGAGED IN
WORK-RELATED ACTIVITIES SO
DEPENDING ON WHAT HAPPENED
TO YOU DURING THAT HALF AN
HOUR, IT MAY OR MAY NOT
COUNT TOWARDS THE BREAK.
NOW IF WHAT YOU'RE TELLING
ME IS LOOK, THAT HALF AN
HOUR CAME AND WENT AND I
JUST KEPT ON DOING MY WORK,
THEN THAT'S NOT A BREAK.
THAT'S IN VIOLATION OF THE
EMPLOYMENT STANDARDS ACT.

MAUREEN says BUT IF SHE'S
TRYING TO SAY I SHOULD HAVE
HAD THE RIGHT TO GO AND TAKE
CARE OF SOME BANKING I HAD
TO DO OR DRY CLEANING,
THAT'S NOT NECESSARILY --

JANICE says NOT NECESSARILY, NO.

MAUREEN says IF THEY'VE PUT YOU IN CHARGE.

JANICE says THAT'S RIGHT.

MAUREEN says OKAY, INTERESTING.
THANKS, LYNN. FOR YOUR QUESTION.
ANOTHER STORY THAT WAS IN
THE NEWS EARLY IN THE MARCH
WERE THE RECOMMENDATIONS
FROM A CORONER'S JURY IN
OTTAWA LOOKING INTO THE
SHOOTING AT O.C.TRANSPO AND
THEY CAME BACK AND TALKED A
LOT ABOUT PSYCHOLOGICAL
HARASSMENTMENT AND THEY
CRACKED DOWN ON THAT KIND OF THING.

JANICE says THAT'S RIGHT.

MAUREEN says WHAT'S YOUR TAKE ON THAT.

JANICE says I THINK
IT'S GOING TO BE VERY DIFFICULT.
I GATHER THAT IN THE
INSTANCES OF VIOLENCE AND
HARASSMENT, GENERAL KIND OF
HARASSMENT ARE ON THE, YOU
KNOW, THE INCREASE.
IT'S NOT UNLIKE ROAD RAGE, I SUPPOSE.
JUST GENERAL ANXIETY IN
SOCIETY INCREASING.
HARASSMENT THAT IS NOT
RELATED TO PRESCRIBED
GROUNDS UNDER THE HUMAN
RIGHTS CODE, AGAIN SEX, FOR
EXAMPLE, OR AGE OR FAMILY
STATUS, NOT REALLY GOOD
LEGAL REMEDIES FOR THAT.
THAT BEING SAID, IF YOU ARE
JUST GENERALLY BEING
HARASSED BY A SUPERVISOR AND
IF YOU ARE SUSTAINING DAMAGE,
DEMONSTRABLE, PSYCHOLOGICAL
DAMAGE AS A RESULT, THE
EMPLOYER UNDER THE COMMON LAW
MAY VERY WELL BE LIABLE AS A
RESULT OF THAT.
AND SO YOU THEORETICALLY
WOULD HAVE AN ACTION AGAINST
THE EMPLOYER, AS WELL AS THE
INDIVIDUAL WHO'S DOING THE HARASSMENT.
IN TERMS OF, YOU KNOW, MORE
INTENSE HARASSMENT,
HARASSMENT THAT TURNS INTO
VIOLENCE, IT PUTS EMPLOYERS
AT A BIT OF A DIFFICULT POSITION.
THEY PROBABLY HAVE A
COMMON LAW DUTY TO ENSURE
THAT THE WORKPLACE IS FREE
FROM THAT SORT OF VIOLENCE.
HOW YOU EXERCISE THAT DUTY,
HOWEVER, IS A BIT
PROBLEMATIC BECAUSE “DO YOU
SCREEN EVERYONE WHO, YOU
KNOW, APPLIES FOR A JOB?”
“DO YOU JUST SCREEN THOSE
PEOPLE WHO ARE GOING TO BE
WORKING IN THE INSENSITIVE
POSITIONS, OR WITH HEAVY
EQUIPMENT OR DIRECTLY WITH CUSTOMERS?”
THAT KIND OF SCREENING IS A
BIT PROBLEMATIC. THERE
IS, HOWEVER, CASE LAW WHERE
FOR EXAMPLE A BAR DOES NOT
DO ADEQUATE SCREENING OF
BOUNCERS AND THEN THE
BOUNCER GOES UP AND BEATS
SOMEBODY UP AROUND THE
CORNER - THAT THE BAR IS LIABLE.
SO IN THOSE KINDS OF
SITUATIONS WHERE YOU CAN
SORT OF ANTICIPATE THAT
VIOLENCE MIGHT BE A PROBLEM,
THERE IS CLEARLY AN
OBLIGATION ON THE EMPLOYER
TO SCREEN.
BUT MORE GENERALLY, HARD TO
KNOW IF THERE IS.

MAUREEN says WHAT DO YOU TELL
YOUR CLIENTS WHO ARE
EMPLOYERS ABOUT SETTING UP
HARASSMENT POLICIES IN THE
WORKPLACE AND MAKING SURE
THAT ALL EMPLOYEES
UNDERSTAND THEM?

JANICE says WELL,
AGAIN, IF IT'S HARASSMENT
THAT'S LINKED TO THE HUMAN
RIGHTS CODE, WHAT I TELL MY
EMPLOYER CLIENTS IS THAT YOU
MUST HAVE A POLICY.
AND YOU HAVE TO HAVE A
POLICY THAT IS COMMUNICATED
TO THE EMPLOYEES.
WHY THAT IS?
FIRST OF ALL YOU DON'T WANT
HARASSMENT TO OCCUR IN THE
WORKPLACE. FIRST AND FOREMOST.

MAUREEN says AND HAVING A
POLICY WILL HELP CUT DOWN --

JANICE says IF YOU MAKE
IT CLEAR TO PEOPLE THAT THIS
IS THE TYPE OF BEHAVIOUR
THAT CONSTITUTES HARASSMENT,
NOT EVERYBODY KNOWS.
NOT EVERYBODY KNOWS THAT AN
OFF-COLOUR JOKE COULD BE
SEXUAL HARASSMENT.
SO FIRST OF ALL YOU
COMMUNICATE TO YOUR
EMPLOYEES THIS IS THE TYPE
OF BEHAVIOUR THAT
CONSTITUTES SEXUAL HARASSMENT.
AND “LISTEN, EMPLOYEE, IF
YOU DO THIS TYPE OF
BEHAVIOUR WE RESERVE OUR
RIGHT AS YOUR EMPLOYER TO
DISCIPLINE YOU, INCLUDING
TERMINATING YOUR EMPLOYMENT.”
THAT MAY HAVE AN INFLUENCE
ON THE BEHAVIOUR IN THE WORKPLACE.
BUT THE OTHER REASON WHY
EMPLOYERS ARE WELL-ADVISED,
I THINK, TO HAVE THAT KIND
OF POLICY IS FOR THEIR OWN
LEGAL PROTECTION.
BECAUSE IF AN ACT OF
HARASSMENT OCCURS, YOU KNOW,
ON THEIR WATCH, DURING THEIR
TIME, THEY WILL BE ABLE TO
SAY TO THE HUMAN RIGHTS
COMMISSION, FOR EXAMPLE,
“LOOK, WE DID EVERYTHING
THAT WE COULD DO TO MAKE
SURE THIS DIDN'T HAPPEN.”
SO, ULTIMATELY, THIS IS
BETWEEN THE VICTIM AND THE HARASSER.
WE HAVE NOTHING TO DO WITH IT.
YOU DON'T WANT THE VICTIM TO
GO AFTER NOT ONLY THE
HARASSER BUT ALSO THE
EMPLOYER SAYING, YOU KNOW,
YOU EMPLOYER, YOU DID NOTHING.
YOU HAD NO POLICY, YOU
CREATED AN ENVIRONMENT WHERE
THIS KIND OF THING COULD GO ON.
SO THAT'S WHY EMPLOYERS FROM
A STRATEGIC LEGAL POSITION
SHOULD ALSO HAVE A POLICY.

MAUREEN says GOT IT.
OKAY, D.A. IS CALLING FROM
CAMBRIDGE. HELLO?
HI, ARE YOU THERE D.A.?

The male caller says YES.

MAUREEN says OKAY, GO AHEAD.
WHAT'S YOUR QUESTION FOR JANICE?

D.A. says MY QUESTION IS I
WAS WORKING AT A JOB AND GOT
INJURED BECAUSE THE --
BECAUSE OF THE INJURY, I
COULDN'T COME BACK FULL-TIME,
BUT I HAD A MEETING WITH THE
OWNER, AND HE SAID ONCE THE
INJURY WAS, YOU KNOW, FIXED
OR WELL ENOUGH TO DO THE JOB,
I WAS WELCOME BACK.
I WENT BACK A COUPLE YEARS
LATER AND GOT TOLD THAT THE
COMPANY HAD A POLICY OF NOT
RE-HIRING FORMER EMPLOYEES.
CAN I DO ANYTHING ABOUT THAT?

JANICE says I THINK THE
PIECE OF LEGISLATION THAT
YOU NEED TO BE CONCERNED
ABOUT IS WHAT WAS FORMERLY
KNOWN AS THE WORKER'S
COMPENSATION ACT, NOW THE
WORKPLACE HEALTH AND SAFETY
INSURANCE ACT IS THE TITLE.
THERE IS WITHIN THAT PIECE
OF LEGISLATION A PROTOCOL,
IF YOU LIKE, A PROCESS BY
WHICH INJURED WORKERS ARE TO
BE REINSTATED INTO THEIR
FORMER POSITIONS.
AND THERE'S A TIME PERIOD
THAT APPLIES, DEPENDING ON
WHEN YOU WERE INJURED.
GIVEN THE TIME FACTOR HERE,
THOUGH, I'M CONCERNED THAT
THAT TIME HAS PASSED.
SO I THINK YOUR FIRST STEP
SHOULD BE TO CHECK WITH,
AGAIN, THE MINISTRY OF
LABOUR TO SEE WHETHER YOU
FIT WITHIN THE PROVISIONS OF
THAT PIECE OF LEGISLATION.
AFTER THAT - I DON'T KNOW
WHETHER YOU'D HAVE A
COMMON LAW, A COMMON LAW
ACTION OF WRONGFUL DISMISSAL
OR NOT.
CERTAINLY WHEN THERE ARE
AGGRAVATED CIRCUMSTANCES
SURROUNDING A DISMISSAL, NOT
ONLY ARE YOU ENTITLED TO
REASONABLE NOTICE, BUT UNDER
THE CASE CALLED WALLACE,
WHICH WE'VE TALKED ABOUT
BEFORE, YOU MIGHT BE
ENTITLED TO SOME ADDITIONAL DAMAGES.
BUT I'M NOT SURE ON THE
FACTS WHETHER THAT WOULD
APPLY TO YOU OR NOT, SO I'D
CHECK UNDER THE ACT FIRST.

MAUREEN says OKAY.
BUT TODAY, IF SOMEONE WERE
INJURED ON THE JOB TODAY AND
HAD TO BE OFF, THEY COULDN'T
BE DISMISSED FROM THEIR JOB.

JANICE says NO.
NO, THEY COULDN'T.
PROVIDED THAT THEY WORKED
WITHIN -- WELL, PROVIDED
THAT THEY WORK WITHIN AN
EMPLOYER REGULATED BY THAT
ACT, THERE IS A PROTOCOL BY
WHICH THEY'RE REINSTATED IF
THEY CAN RETURN TO WORK.
UNFORTUNATELY SOME NEVER CAN
RETURN TO WORK, BUT PROVIDED
THEY CAN GO BACK TO THEIR
FORMER JOB OR A COMPARABLE
JOB, THERE IS A PROTOCOL OR
FOR REINSTATEMENT.
THAT BEING SAID, OUTSIDE OF
INDUSTRIES THAT ARE COVERED
BY THAT ACT, THERE'S A WHOLE
BODY OF CASE LAW, IT'S
CALLED “THE DOCTRINE OF
FRUSTRATION” WHICH IS WHERE
PEOPLE ARE SICK, REGARDLESS
OF WHETHER IT'S AN INJURY ON
SITE OR OFF SITE, IF AFTER
A PERIOD OF TIME THE
CONTRACT OF EMPLOYMENT
BECOMES IMPOSSIBLE TO
PERFORM, YOU KNOW, THE
PROGNOSIS IS UNCERTAIN OR
TERRIBLE, YOU KNOW, THE
PERSON'S GOING TO BE TOTALLY
DISABLED, THEN THERE IS A
BODY OF CASE LAW THAT ALLOWS
THE EMPLOYER TO SAY YOU KNOW,
“THE CONTRACT OF EMPLOYMENT
HAS COME TO AN END.
IT'S BEEN FRUSTRATED AND WE
DON'T OWE YOU ANYTHING
BECAUSE IT'S BECOME
IMPOSSIBLE TO PERFORM.”

MAUREEN says I SEE.
GOOD LUCK, D.A., THANK YOU.
AN E-MAIL FROM EDWARD.
“I QUIT MY JOB A YEAR AGO,
MAINLY FOR SAFETY REASONS.
THEY NEVER RESPONDED TO MY
REQUESTS TO PUT SAFEGUARDS
ON MACHINES LOCATED CLOSE TO
MY WORKPLACE TO PROTECT ME
FROM FLYING PIECES OF METAL
BUT MY PROBLEM IS WITH
PROMOTION, WHICH I WAS
DENIED DURING MY EMPLOYMENT.
FIRST, I WAS EXPLAINED THAT
THEY LOST MY APPLICATION,
THEN THAT I DID NOT HAVE
QUALIFICATION FOR THAT, BUT
THEY NEVER INTERVIEWED ME.
THE TRUE THING WAS THAT THE
PERSON WHO WAS HIRED WAS A
FRIEND OF SOMEBODY IN MANAGEMENT.
SO DOES HE HAVE ANYTHING
THAT HE CAN GO AFTER THIS
COMPANY WITH FOR DENYING HIM
A PROMOTION?

JANICE says RIGHT.
AS TO THE CURRENT STATE OF LAW,
THE ANSWER IS LIKELY NO,
UNLESS THE REASON BEHIND THE
FAILURE TO PROMOTE AGAIN IS
RELATED TO PRESCRIBED
GROUNDS UNDER THE HUMAN
RIGHTS CODE.
SO SEX, FAMILY STATUS --

MAUREEN says AGE?

JANICE says AGE,
PROVIDED YOU'RE OLDER THAN
18 OR UNDER 65.

MAUREEN says OKAY.

JANICE says SO IF THE
FAILURE TO PROMOTE IS NOT
RELATED TO ANY OF THOSE
GROUNDS THEN HE IS PROBABLY
OUT OF LUCK FOR NOW.
NOW THE REASON I SAY FOR NOW
IS THAT EMPLOYMENT LAW IS, AT
LEAST IN CANADA, IN A
CONSTANT STATE OF FLUX.
AND THE SUPREME COURT OF
CANADA IS ALWAYS COMING OUT
WITH DECISIONS THAT I FIND
QUITE EXTRAORDINARY IN TERMS
OF THE PROTECTIONS THAT
EMPLOYERS ARE TO AFFORD TO EMPLOYEES.
AND THE WALLACE DECISION IS ONE EXAMPLE.
THERE IS A CASE FROM THE
ENGLISH HOUSE OF LORDS
CALLED MALICH, I BELIEVE
IT'S A 1996 OR 1997 CASE
WHICH TALKS ABOUT AN OVERALL
OBLIGATION OF GOOD FAITH AND
FAIR DEALING IN THE
EMPLOYMENT CONTRACT SO IT
GOES A STEP FURTHER THAN WALLACE.
WALLACE JUST GROUNDS THAT
OBLIGATION AT THE TIME OF TERMINATION.
MALICH GOES A STEP FURTHER
AND SAYS IT EXISTS
THROUGHOUT EMPLOYMENT RELATIONSHIP.
SO IF THE KIND OF REASONING
BEHIND MALICH WERE ADOPTED
IN CANADA YOU COULD SEE YOU
COULD MAKE AN ARGUMENT ON
FAILURE TO PROMOTE IF IT
WERE JUST UNFAIR.
IF THE EMPLOYER DIDN'T
RATIONALLY, OBJECTIVELY, PUT
ITS MIND TO THE ISSUE OF
PROMOTION YOU MIGHT FIND
THERE HAD BEEN A GENERAL
OBLIGATION OF GOOD FAITH AND
FAIR DEALING, BUT RIGHT NOW
IT DOESN'T EXIST.

MAUREEN says WHAT ABOUT THE
SAFETY THING?

JANICE says WELL, IF
THE FAILURE TO PROMOTE WAS
LINKED TO THE SAFETY THING,
YOU KNOW, MAYBE THERE'S
SOMETHING UNDER THE
OCCUPATIONAL HEALTH AND
SAFETY ACT THERE.
MIGHT BE SOMETHING THERE,
ALTHOUGH THAT PIECE OF
LEGISLATION SETS OUT AGAIN A
PROTOCOL WHEREBY YOU ARE TO
COMPLAIN AND TRY AND REMEDY
THE SITUATION --

MAUREEN says WHILE YOU'RE
STILL WITH THEM.

JANICE says YEAH.

MAUREEN says NOT AFTER YOU QUIT.

JANICE says YEAH.

MAUREEN says OKAY, THANKS EDWARD.
TRISH IS IN OTTAWA.

Trish says HOW ARE YOU?

MAUREEN says GOOD.

Trish says MY QUESTION IS
ABOUT STAFF MEETINGS.
I WORK IN A HAIR SALON,
WHICH OF COURSE IS PART OF
THE RETAIL INDUSTRY AND I
UNDERSTAND THERE'S A LOT OF
THING THAT WE DON'T GET
DEDUCTED FROM THAT A LOT OF
OTHER PEOPLE DO BECAUSE OF
UNION AND WHAT HAVE YOU, BUT
I WORK ON A COMMISSION BASIS,
AND YET WE ALWAYS HAVE TWO-HOUR
STAFF MEETINGS EVERY SECOND WEEK.
AND I'VE BEEN THERE FOR TWO
AND A HALF YEARS AND THE
EMPLOYERS MADE IT
FLAT-OUTRIGHT -- KNOWING HE
HAS NO INTENTIONS OF PAYING
FOR STAFF MEETINGS, NEVER
HAS, AND NEVER WILL.
AND OF COURSE I HAVE FRIENDS
AND FAMILIES WITH UNIONIZED
COMPANIES THAT THEY'RE VERY
PROTECTED, BUT I FIND THAT I
JUST KIND OF GET A
RUN-AROUND EVERY TIME I CALL
THE MINISTRY OF LABOUR AND
ASK FOR A STRAIGHT-OUT
ANSWER OF WHETHER OR NOT I'M
SUPPOSED TO GET PAID AND ,IF SO,
HOW DOES IT GET CALCULATED
SINCE I AM COMMISSION-PAID.

JANICE says THAT'S A
VERY INTERESTING QUESTION.
CERTAINLY AS FAR AS YOUR
COMMISSION EARNINGS ARE
CONCERNED, YOU KNOW, YOU CAN
BE PAID BASED ON 100 PERCENT
COMMISSION, PROVIDED THAT
WHEN YOU TALLY UP THE
COMMISSION AND THE HOURS YOU
WORK, YOU DON'T GO UNDER THE
MINIMUM WAGE.
SO THAT'S STEP NUMBER ONE.
MY OWN READ ON THAT WOULD BE
THAT IF THE FAILURE TO PAY
YOU ANYTHING DURING THOSE
STAFF MEETINGS RESULTED IN
YOU GETTING UNDER THE
MINIMUM WAGE, THEN THERE'S A PROBLEM.
BUT IN TERMS OF DOES THE
EMPLOYER HAVE AN OBLIGATION
TO ACTUALLY PAY YOU FOR THE
STAFF MEETING?
SOMETHING IN ADDITION TO THE
COMMISSION, I HONESTLY DON'T
KNOW AND IT'S NOT
SURPRISINGING TO ME THAT THE
MINISTRY CAN'T GIVE YOU A
STRAIGHT ANSWER BECAUSE I'M
NOT SURE IF IT'S ENTIRELY
CLEAR UNDER THE ACT.

MAUREEN says SO SHE MIGHT
HAVE TO “PAVE THE WAY” AND
TAKE THE EMPLOYER TO COURT.

JANICE says THAT RAISES
A VERY INTERESTING ISSUE AS
FAR AS HOW DO YOU ACTUALLY
USE THESE REMEDIES WHILE
YOU'RE STILL EMPLOYED?
AND IT IS POSSIBLE, YOU
SHOULD KNOW, TO MAKE AN
ANONYMOUS COMPLAINT TO THE
MINISTRY OF LABOUR.
SO IF YOU DIDN'T WANT TO
LIVE WITH THE, YOU KNOW,
DISCOMFORT OF BEING
IDENTIFIED AS THE PERSON
RAISING THE ISSUE, YOU CAN
MAKE AN ANONYMOUS COMPLAINT
TO THE MINISTRY OF LABOUR.
YOU CAN ASK THEM TO DO AN
INVESTIGATION, AND THEY WILL
COME IN AND THEY WILL TALK
TO YOUR EMPLOYER, AND MAKE A
DETERMINATION.

MAUREEN says IN A SMALL HAIR
SALON HE MAY NOT HAVE A
PROBLEM FIGURING OUT WHO
MADE THE COMPLAINT.
WOULD SHE HAVE PROTECTION
FROM BEING FIRED AFTER THAT?

JANICE says YES, THERE
IS UNDER THE EMPLOYMENT
STANDARDS ACT, THERE IS AN
ANTI-REPRISAL SECTION SO
THAT IF YOU ARE FIRED AS A
RESULT OF MAKING THIS
ANONYMOUS COMPLAINT, YOU CAN
MAKE A SECOND COMPLAINT TO
THE MINISTRY OF LABOUR AND
YOU HAVE THE RIGHT TO BE
REINSTATED ALONG WITH SOME DAMAGES.

MAUREEN holds up Janice's book and says INTERESTING.
HAVEN'T HEARD THAT ONE BEFORE.
THANK YOU, TRISH FOR YOUR QUESTION.
WE'RE TAKING YOUR QUESTIONS
ABOUT EMPLOYMENT LAW AND
RIGHTS IN THE WORKPLACE FOR
LAWYER JANICE RUBIN THIS AFTERNOON.
SHE'S THE AUTHOR OF “A
PRACTICAL GUIDE TO THE LAW
OF TERMINATION IN ONTARIO.”
GIVE US A CALL.

Maureen repeats the phone numbers and e-mail address.

MAUREEN says AND BEVERLEY IS IN TORONTO.
HI BEVERLEY.

Beverley says HI.

MAUREEN says HI.

Beverley says JANICE, I GOT A
QUESTION FOR YOU.
RIGHT NOW I'M GOING IN FOR
SURGERY ON THE 28th OF APRIL.
I'M A SUPERINTENDENT AT AN
APARTMENT BUILDING.
UNEMPLOYMENT INSURANCE HAS
REFUSED TO PAY ME SICK
BENEFITS AT THIS TIME DUE TO
THE FACT THAT THEY'VE
INDICATED THAT MY APARTMENT
IS CONSIDERED INCOME.
WHAT SHOULD I DO ABOUT THAT?
AND DO -- WHO SHOULD I CALL?

JANICE says WELL, I'M
NOT QUITE -- I DON'T QUITE
UNDERSTAND THE RATIONALE
BEHIND THE E.I. DECISION,
BUT WHAT YOU SHOULD DO IS
YOU SHOULD APPEAL IT.
YOU CAN APPEAL THE DECISION.
YOU DON'T NEED A LAWYER TO DO IT.
IT GETS APPEALED TO WHAT'S
CALLED THE BOARD OF REFEREES.
AND THE APPEAL IS HEARD
FAIRLY QUICKLY AFTER YOU MAKE IT.
AND JUST EXPLAIN THAT YOU
ARE AN EMPLOYEE.
YOU ARE GOING TO BE SICK
UNDER THE EMPLOYMENT
INSURANCE SCHEME I THINK
IT'S 14 OR 17 WEEKS OF SICK
BENEFITS, AND I WOULD TRY, I
WOULD TRY THAT.
I'D ALSO WANT TO KNOW VERY
CLEARLY WHAT PROVISION OF
THE EMPLOYMENT INSURANCE ACT
THAT THEY'RE RELYING ON TO
DISENTITLE YOUR BENEFITS.

MAUREEN says YEAH.
ARE THEY SAYING YOUR
APARTMENT IS INCOME?
IS THAT BECAUSE YOU GET FREE
RENT THERE?

Beverley says YUP.

MAUREEN says AND HOW MUCH IS
RENT FOR AN APARTMENT LIKE
YOURS?

Beverley says WELL IT VARIES.
I MEAN IT DEPENDS ON THE UNIT.
I WAS LIVING IN BRAMPTON,
NOW I'VE MOVED TO TORONTO.
I'VE BEEN TRANSFERRED TO
ANOTHER BUILDING BUT INCOMES VARY.
BUT THEY'RE INDICATING TO ME
THAT IF IT'S ANY MORE THAN
40 PERCENT OR SOMETHING TO THAT
EFFECT --

JANICE says YEAH.
IT'S NOT SOMETHING THAT I'M
FAMILIAR WITH, BUT YOU DO
HAVE A RIGHT TO APPEAL IT.
AND I WOULD THINK THAT THERE
HAVE BEEN CIRCUMSTANCES LIKE
YOURS BEFORE, WHERE
SUPERINTENDENTS LOOK FOR
SICK BENEFITS.

MAUREEN says SO YOU CAN APPLY
FOR U.I. WHEN YOU KNOW
YOU'RE GOING TO BE OFF WORK,
RATHER THAN HER -- I MEAN,
WHY NOT THE OWNER OF THE
BUILDING PAYING HER WHILE
SHE'S OFF?
ISN'T THEIR AN ENTITLEMENT THERE?

JANICE says WELL
THERE'S NOT A STATUTORY OR
STRICT LEGAL ENTITLEMENT.
VERY OFTEN EMPLOYERS HAVE
GROUP BENEFITS AND A TYPICAL
COMPONENT OF GROUP BENEFITS
IS SHORT AND LONG-TERM
DISABILITY SO THIS EMPLOYER
MAY HAVE THAT KIND OF PLAN,
A STAY -- MAYBE, MAYBE NOT.
STAY OFF WORK AS A RESULT OF
SURGERY USUALLY IS THE TYPE
OF THING THAT YOU GET SHORT
TERM BENEFITS OR SHORT TERM
DISABILITY FOR.
FOR EMPLOYERS WHO DON'T HAVE
THAT KIND OF PLAN, THEN YOUR
RECOURSE IS TO THE E.I. SICK
BENEFITS.

MAUREEN says IT'S AN
INTERESTING SITUATION.
FREE RENT CONSTITUTES PART
OF HER SALARY.
OKAY, GOOD LUCK, BEVERLY. THANKS.
YOU'LL HAVE TO GIVE THEM A
CALL AT E.I. AND APPEAL THAT
FRANCINE SAYS “I WAS
RECENTLY EMPLOYED THROUGH A
TEMPORARY AGENCY AND PLACED
AT A COMPANY THAT HAD HAD A
FORMAL DRESS CODE.
I'M PREGNANT AND MY
SUPERVISOR NOTED ME MY
ATTIRE OFFENDED A HIGHER-UP MANAGER.
I ASKED THE SUPERVISOR IF
THE MANAGER KNEW OF MY
PREGNANT STATE AND SHE SAID
SHE HADN'T INFORMED THE
MANAGER OF THIS - I
SUBSEQUENTLY LEFT THE JOB
DUE TO THE STRESS I WAS FEELING,
VIS-A-VIS THE LOW WAGE I WAS EARNING.
CAN EMPLOYERS FORCE DRESS
CODES ON EMPLOYEES WITH
SPECIAL NEEDS?”

JANICE says AGAIN, THIS
IS AN ISSUE OF ACCOMMODATION.
ASSUMING THE DRESS CODE IS
REASONABLE AND APPROPRIATE
IN AND OF ITSELF, AND
THERE ARE CIRCUMSTANCES
WHERE THE DRESS CODE IS
CONSIDERED INAPPROPRIATE,
BUT LET'S ASSUME IT'S AN
APPROPRIATE BUSINESS-RELATED
REASON, AND THE DRESS CODE
IS LEGITIMATE, THEN GIVEN
THAT PREGNANCY AGAIN IS
SEX-RELATED, SEX-RELATED
DISCRIMINATION, A PREGNANT
WOMAN WOULD, AN EMPLOYER
WOULD HAVE TO ACCOMMODATE
THE PREGNANT WOMAN BY WAY OF
A MODIFICATION OF THE DRESS CODE.
SO FOR EXAMPLE, IF YOU
COULDN'T WEAR A SKIRT AND
YOU HAD TO WEAR SLACKS OR
VICE-VERSA, THAT WOULD BE
A LEGITIMATE ACCOMMODATION.
IF THIS INDIVIDUAL QUIT AS A
RESULT OF THE FAILURE TO
ACCOMMODATE AGAIN, SHE NEEDS
TO GO DOWN AND TALK TO THE
FOLKS AT THE HUMAN RIGHTS
COMMISSION IS SEE WHAT THEY
THINK, AND YOU KNOW, SHE CAN
FILE A COMPLAINT AND GO TO
MEDIATION WHICH IS THE FIRST
STEP AND ULTIMATELY HAVE THE
MATTER ADJUDICATED.
BECAUSE THE QUITTING WOULD
SUGGEST SHE SUSTAINED ACTUAL
DAMAGES. SHE'S OUT OF WORK.

MAUREEN says I REMEMBER WHEN
I WAS PREGNANT WITH MY FIRST,
I COULDN'T WEAR ANY SHOES
OTHER THAN FLIPFLOPS.
BUT I'VE HEARD OF PLACES
THAT HAVE A PANTY -- WOMEN
HAVE TO WEAR PANTYHOSE EVEN
IN THE DEAD OF SUMMER. THAT
WOULDN'T HAVE WORKED WITH MY
FLIP-FLOPS, SO I CAN RELATE, FRANCINE.
GOOD LUCK!
TERESA IS IN OSHAWA.
HI TERESA.

Teresa says HI.

MAUREEN says HI.

Teresa says MY QUESTION IS I
WAS ACTUALLY DISMISSED FROM
A POSITION AS AN ASSISTANT
MANAGER IN A WOMEN'S RETAIL
STORE, AND MY MANAGER AND
MYSELF, WE HAD TWO VERY
CONFLICTING PERSONALITIES,
AND I HAD PREVIOUSLY BEEN
RATED FOR A VERY EXCEPTIONAL
PERFORMANCE AND WAS BEING
GROOMED TO BECOME A MANAGER.
UNFORTUNATELY THE
PERSONALITY CONFLICT BETWEEN
THE TWO OF US INTERFERED IN
THE SENSE THAT SHE DID
DISLIKE ME AND I CONTINUED
TO WORK AT THE RELATIONSHIP,
HOWEVER A SITUATION AROSE
THAT SHE TURNED AROUND AND
IT BECAME A CASE WHERE SHE
SAID THAT I HAD DONE AN
INSUBORDINANT ACTION.
WHAT DOES SHE HAVE TO
PROVE -- I'VE TAKEN IT TO
THE EXTENT WHERE THERE IS A
LAWYER INVOLVED.
I'M JUST WONDERING WHETHER
AT THE END OF IT, BECAUSE I
AM PAYING A LAWYER, WHAT IS
IT THAT SHE HAS TO PROVE.
SHE JUST DEALT WITH THE
HUMAN RESOURCES DEPARTMENT.
I ASKED FOR THE SITUATION TO
BE CLEARED UP WITH THE TWO
OTHER EMPLOYEES INVOLVED AND
SPEAK DIRECTLY, BECAUSE I
WAS LOOKING FOR
CLARIFICATION OF THE ACTION
WHICH WAS NEVER TAKEN.
SHE RE-INTERPRETED IT AND
PASSED IT ON TO SAY THAT I
HAD DONE SOMETHING.
SO WHERE AM I WITH THAT?

JANICE says WELL, IT
SOUNDS LIKE YOUR EMPLOYER
HAS TAKEN THE ACT OF
INSUBORDINATION AND HAS USED
IT TO SAY THAT IT HAD CAUSE
TO TERMINATE YOUR EMPLOYMENT
AND IF THAT IS THE CASE,
WHAT I CAN TELL YOU IS FIRST
OF ALL THE ONUS IS ON THE
EMPLOYER TO SHOW THAT IT HAD CAUSE.
AS CAUSE IS INTERPRETED IN
THE PROVINCE RIGHT NOW, IT'S
VERY, VERY, VERY HARD FOR
EMPLOYERS TO MAKE A
SUCCESSFUL CASE FOR CAUSE.
ABSENT SOMETHING LIKE THEFT
OR VIOLENCE OR, YOU KNOW,
GROSS ACTS OF SEXUAL
HARASSMENT, VERY DIFFICULT
TO MAKE A CASE FOR CAUSE.
IN TERMS OF INSUBORDINATION,
THERE ARE CERTAINLY CASES
THAT TALK ABOUT EMPLOYEES
BEING INSUBORDINATE, AND IF
IT IS A GROSS ACT OF INSUBORDINATION,
YOU KNOW, -- “YOU
ARE NOT ALLOWED TO TAKE
VACATION NEXT WEEK.”
YOU'VE MADE A REQUEST, IT'S
BEEN DENIED AND YOU WALK OUT
THE DOOR, GROSS ACTS OF
INSUBORDINATION, THAT KIND
OF THING, THERE'S CASE LAW
TO SUGGEST THAT THAT WILL BE
THE FOUNDATION OF A
SUCCESSFUL CASE FOR CAUSE.
HOWEVER IN A CASE OF
PERSONALITY CONFLICT, YOU
KNOW, WHERE JUST TWO PEOPLE
AREN'T GETTING ALONG, IT'S
GOING TO BE, I THINK, FAIRLY
DIFFICULT TO SHOW THAT THERE
WAS INSUBORDINATION.
OR IF THERE WAS
INSUBORDINATION, IT MAY BE
SOMETHING THAT IS SO MINOR
THAT A COURT IS NOT GOING TO
GET OVERLY UPSET ABOUT IT.
CERTAINLY THE STANDARD ALSO
GETS HIGHER THE LONGER YOU
WORK WITH A PARTICULAR EMPLOYER.
THERE'S CASE LAW IN ONTARIO
THAT SAYS THAT AN EMPLOYER'S
OBLIGATION TO LONGTERM
EMPLOYEES IS EVEN HIGHER THAN
ITS OBLIGATION TO THE NEWLY
EMPLOYED WITHIN THE ORGANIZATION.
SO IF YOU'VE BEEN THERE FOR
A LONG TIME, THAT STANDARD'S
GOING TO BE EVEN HIGHER.
THE OTHER THING IS THAT
IF IT IS SORT OF MINOR ACTS
OF INSUBORDINATION, IT'S
LIKELY THAT THE EMPLOYER HAS
THE REQUIREMENT TO WARN YOU
THIS TYPE OF BEHAVIOUR IS
NOT APPROPRIATE.
SO, ABSENT THE WARNINGS AGAIN,
IT'S LIKELY THEY WILL NOT BE
ABLE TO MAKE THE CASE FOR CAUSE.
ALL THAT BEING SAID, YOU
KNOW, THE PRACTICAL ONUS,
THE SORT OF “MECHANICS” OF
THIS THING FALLS ON THE
EMPLOYEE, BECAUSE IT'S THE
EMPLOYEE WHO BRINGS THE
WRONGFUL DISMISSAL ACTION.

MAUREEN says IT SOUNDS LIKE
SHE CAN PROVE HER CASE IF
SHE CAN GET A COUPLE OF
OTHER EMPLOYEES TO TESTIFY?
OR MAYBE THAT'S TOO STRONG A WORD.
BUT DOES SHE HAVE THAT RIGHT
TO ASK THAT?

JANICE says ABSOLUTELY.
SHE SHOULD BE WORKING WITH
HER COUNSEL, AND CERTAINLY AS YOU GET
READY TO GO TO TRIAL ONE OF
THE DISCUSSIONS YOU HAVE
WITH YOUR CLIENT IS NOW “WHO
ARE THE WITNESSES WHO ARE
LIKELY TO HELP OUR CASE” AND
YOU AGREE TO HAVE THOSE
WITNESSES COME IN THERE.
YOU CAN SUBPOENA THEM TO MAKE THEM COME.

MAUREEN says WHAT IF THEY'RE
NERVOUS ABOUT THEIR OWN JOBS
IN THE WAKE OF ALL THIS?

JANICE says WELL, YOU
KNOW, THERE'S NO STATUTORY
ANTI-REPRISAL -- NOT AS
FAR AS I KNOW, BUT THERE
MIGHT BE SOMETHING IN THE
COURTS OF JUSTICE ACT AS I'M
THINKING NOW.
BUT, IN ANY EVENT, IF YOU ARE
FIRED AS A RESULT OF
ATTENDING COURT AS A WITNESS,
THEN IT'S PROBABLY KIND OF A
WALLACE TYPE OF SITUATION
WHERE YOU'D BE -- IT'S AN
AGGRAVATED SITUATION WHICH
WOULD ENTITLE TO YOU MORE DAMAGES.
THAT'S HOW I'D ARGUE IT.

MAUREEN says OKAY.
ALL RIGHT, INTERESTING.
GOOD LUCK, TERESA.
IT'S NOT UNCOMMON IN THE
WORKPLACE FOR AN EMPLOYEE
AND A SUPERVISOR TO DEVELOP
A RELATIONSHIP OF A SEXUAL NATURE.
WHAT ARE THE POTENTIAL
HAZARDS OF THAT THOUGH?

JANICE says THE
POTENTIAL HAZARDS OCCUR WHEN
THE SUPERVISOR HAS TO
EVALUATE THE PERFORMANCE OF
THE SUBORDINATE.
THERE'S AN OBVIOUS CONFLICT
OF INTEREST.
IT'S VERY HARD TO BE
OBJECTIVE ABOUT SOMEONE YOU
LOVE AND YOU'RE PERSONALLY
INVOLVED WITH.
SO THAT'S A PROBLEM IN TERMS
OF THE SUPERVISOR'S OWN
EXERCISE OF HIS OR HER OWN DUTIES.
THE OTHER PROBLEM, AND THIS
IS WHERE YOU USUALLY SEE IT
IS WHERE THE RELATIONSHIP ENDS.
BECAUSE ALL OF A SUDDEN YOU
HEAR A CONSENSUAL
RELATIONSHIP WAS NOT
CONSENSUAL, IT WAS HARASSMENT.
OR THAT THE SUPERVISOR WAS NOT
HAPPY THE SUBORDINATE ENDED
THE RELATIONSHIP, AND IN
RETALIATION ENDED THE EMPLOYMENT.
THOSE KINDS OF THINGS.
SO YOU RUN AFOUL OF THE
HUMAN RIGHTS CODE, YOU RUN
AFOUL OF POTENTIALLY WALLACE,
AND IT'S JUST VERY
EMBARRASSING AND KIND OF
YUCKY TO DEAL WITH AT THE
END OF THE EMPLOYMENT RELATIONSHIP.

MAUREEN says SO COULD COULD
AN EMPLOYER HAVE A NO-DATING
POLICY FOR --

JANICE says WELL, THERE
ARE EMPLOYERS WHO DO IT.
WHETHER OR NOT THAT IS A
VALID POLICY, YOU KNOW,
WHETHER IT'S, IT OFFENDS
PUBLIC POLICY, IS A QUESTION.
I THINK FROM A PRACTICAL
PERSPECTIVE IT'S PROBABLY
BETTER IF THE EMPLOYER SAYS
“WE RECOGNIZE PEOPLE ARE
GOING TO HAVE RELATIONSHIPS
IN THE WORKPLACE.
THAT'S WHERE LOTS OF PEOPLE MEET.”
BUT “IF YOU DEVELOP A
LONG-TERM SERIOUS
RELATIONSHIP, WE WOULD LIKE
TO KNOW ABOUT IT SO WE HAVE
THE OPPORTUNITY TO SEPARATE YOU.”
AND SO THAT YOU REMOVE THE
SUPERVISOR AND THE SUBORDINATE.
SO THERE'S NO POTENTIAL FOR
CONFLICT OF INTEREST.

MAUREEN says FAIR ENOUGH.
LET'S GO TO THIS E-MAIL ON
SEVERANCE PAY.
IT'S KIND OF LONG “I WAS
EMPLOYED BY A COMPANY THAT
ANNOUNCED TO ITS EMPLOYEES
THAT THE COMPANY WOULD BE
CLOSING WITHIN A YEAR.
THERE WERE THREE PEOPLE IN
MY DEPARTMENT, TWO OF US
WERE OFFERED SEVERANCE
PACKAGES IN EXCHANGE FOR OUR
AGREEMENT TO STAY ON WITH
THE COMPANY THROUGH THE YEAR.
THE THIRD PERSON WAS NOT
OFFERED A PACKAGE BECAUSE
THEY INTENDED TO LAY THAT
PERSON OFF BEFORE THE YEAR WAS UP.
I WAS THE JUNIOR PERSON AND
FELT THAT SINCE EVENTUALLY
NONE OF US WOULD HAVE JOBS
THERE ANYWAY THAT IT WAS
ONLY FAIR THAT I BE THE
FIRST TO GO.
ALL PERFORMED EQUAL JOB FUNCTIONS.
I SUBSEQUENTLY FOUND ANOTHER
JOB, GAVE THE EMPLOYER
NOTICE AND LEFT ON GOOD TERMS.
IN FACT I STILL KEEP IN
TOUCH WITH CO-WORKERS.
THE CANADIAN BRANCH OF THE
COMPANY HAS SINCE CLOSED BUT
THE PARENT COMPANY STILL
EXISTS IN THE U.S.
I WOULD NEVER HAVE LEFT THAT
JOB IF THE COMPANY HAD NOT
ANNOUNCED THE CLOSURE
OF THE CANADIAN OFFICE.
AM I ENTITLED TO ANY PORTION
OF THE SEVERANCE PACKAGE
THAT WE AGREED ON?”
FROM EVELYN.

JANICE says IT'S HARD
TO SAY OFF THE TOP OF MY
HEAD WITHOUT ACTUALLY SEEING
THE DOCUMENT YOU SIGNED WHAT
THE AGREEMENT WAS.
BUT TYPICALLY IN A SITUATION
LIKE THIS CERTAIN EMPLOYEES,
KEY EMPLOYEES ARE IDENTIFIED
AS BEING MATERIAL TO THE
ORDERLY WINDING DOWN OF THE
OPERATION. SO IN ADDITION TO GIVING
THEM WORKING NOTICE, THAT IS,
YOU KNOW, SIX MONTHS FROM
NOW OR A YEAR FROM NOW YOUR
EMPLOYMENT IS COMING TO AN
END, THE EMPLOYER SAYS, “AND
IF YOU DON'T GO...” BECAUSE
A PERSON'S ALWAYS FREE TO GO
SOMEWHERE ELSE.
“IF YOU DON'T GO KNOWING
THAT THE JOB IS GOING TO END
SIX OR 12 MONTHS FROM NOW WE
WILL GIVE YOU WHAT'S CALL
AED A STAY BONUS.”
SO $30,000, $50,000 WHATEVER
IT IS. “IF YOU GO, HOWEVER, YOU LOSE
THE STAY BONUS” SO MY GUESS
IS THAT THIS PERSON HAS,
ASSUMING THIS IS THE WAY IT
OPERATES IN THIS ARRANGEMENT,
SHE'S PROBABLY FORFEITED HER
RIGHT TO THE STAY BONUS.
IN TERMS OF THE REST OF THE
SEVERANCE, SHE'S LIKELY
FORFEITED THE REST OF THAT,
TOO, BECAUSE SHE'S LEFT.
NOW IT WOULD AGAIN DEPEND ON
WHAT SPECIFICALLY SHE AGREED TO.
SOMETIMES CERTAIN SEVERANCE
ARRANGEMENTS SAY, WELL, YOU
KNOW, IF YOU LEAVE EARLIER,
WE'LL GIVE YOU 50 PERCENT OF WHAT
WE OFFERED YOU, THAT SORT OF THING.
I'D HAVE TO SEE THE
AGREEMENT THAT SHE SIGNED.

MAUREEN says OKAY.
ALL RIGHT, THANKS EVELYN.
APRIL IS NEXT IN TORONTO.
HI APRIL.

April says HI.

MAUREEN says HI.

April says I'M CALLING
ABOUT -- IT'S A LITTLE
DIFFERENT, IT'S CONSIDERED
FARM WORK.
I WAS WORKING ON A FARM
INDUSTRY THAT IS THE LARGEST
ONE IN ONTARIO, AND THEY
SHIP PRODUCTS FROM AFAR AND WORLDWIDE.
I STARTED THERE ABOUT A YEAR
AGO AND I MOVED UP THE
LADDER QUITE QUICKLY FROM
SIX MONTHS TO EIGHT MONTHS I
WAS IN A MANAGEMENT POSITION,
AND THAT MANAGEMENT POSITION,
I NEVER RECEIVED ANY MORE
MONEY FOR DOING AND I WENT
AHEAD AND DID THE WORK AND
SIX MONTHS DOWN THE ROAD I
HAD MY YEARLY REVIEW AND I
RECEIVED A VERY POOR RAISE
IN CONSIDERATION TO WHAT THE
OTHER PEOPLE WERE GETTING
PAID FOR TO DOING THE SAME
TYPE OF WORK, AND THAT
MANAGEMENT POSITION WHERE I
WAS ONE PERSON DOING THE
WORK OF WHAT MOST PEOPLE
WERE TAKING TWO TO DO, I
ASKED FOR MORE MONEY IN
CONSIDERATION THAT MY
WORKLOAD HAD BEEN INCREASED,
AND SHE SAID NO, AND THAT I
WOULD NEVER PROGRESS ANY
FARTHER AND THAT'S WHAT SHE
WAS GOING TO PAY ME AND SHE
DENIED ME TO PROGRESS
FURTHER IN THE COMPANY, SO I
GAVE HER MY NOTICE AND LEFT
ON GOOD TERMS AS A PAY DISPUTE.
AND I'VE CALLED THE MINISTRY
AND THEY SAID THAT BECAUSE
IT WAS CONSIDERED FARM WORK
THAT IN THEORY THEY DIDN'T
EVEN HAVE TO PAY ME OR
ANYBODY MINIMUM WAGE, THAT I
WAS LUCKY TO HAVE GOTTEN
PAID WHAT I DID, RATHER THAN
EQUAL WORK FOR EQUAL PAY.
I'M JUST CURIOUS AS TO IT.
DO I HAVE ANY GROUNDS TO STAND ON
TO BE PAID AT LEAST WHAT
OTHER PEOPLE ARE BEING PAID,
IN THEORY THAT HAVE BEEN
THERE LESS TIME THAN I HAVE BEEN.

JANICE says AGAIN THIS
LINKS BACK TO WHAT WE WERE
TALKING ABOUT A COUPLE
MINUTES AGO.
EMPLOYERS ARE ALLOWED TO
TREAT EMPLOYEES DIFFERENTLY.
IF THE DIFFERENCE IS BASED
ON SOMETHING UNDER THE HUMAN
RIGHTS CODE, SO SEX, FOR
EXAMPLE, YOU WERE THE ONLY
FEMALE FARM WORKER THEN
THERE IS A PROBLEM.
AS FAR AS FARM WORK ON THE
EMPLOYMENT STANDARDS ACT, I
THINK THE INFORMATION THAT
YOU'VE BEEN GIVEN IS
BASICALLY CORRECT.
THERE IS A SEPARATE REGIME
INVOLVING HOURS OF WORK AND
MINIMUM WAGE AND ALL THAT
KIND OF STUFF.
BUT YOU MIGHT WANT TO GO
BACK AND EMPHASIZE TO THEM
THAT IN FACT REALLY WHAT YOU
WERE DOING WAS A MANAGEMENT POSITION.
YOU WEREN'T OUT THERE DOING
THE AGRICULTURAL WORK, YOU
WERE ACTUALLY IN A
MANAGEMENT FUNCTION, WHICH
I'M WONDERING WITH WHETHER
THAT WOULD TAKE OUT OF THAT
PARTICULAR REGULATION.
SO YOU WOULD HAVE TO
EMPHASIZE THAT YOUR WORK WAS
REALLY MANAGERIAL, YOU KNOW,
PAPER WORK OR YOU KNOW,
SLOTTING PEOPLE INTO SHIFTS
AS OPPOSED TO THE ACTUAL
AGRICULTURAL WORK.

MAUREEN says SO IS THIS FARM
WORKER POLICY PROVINCIAL?

JANICE says IT'S
PROVINCIAL, ONE OF THE
REGULATIONS UNDER THE
EMPLOYMENT STANDARDS ACT.
THE ACT IS VERY CONVOLUTED,
DIFFICULT TO READ, BUT IF
YOU CAN MANAGE TO GET
THROUGH IT WITHOUT FALLING
ASLEEP YOU WILL FIND LITTLE
POCKETS OF SPECIAL TREATMENT,
FARM WORKERS, STUDENTS,
SPECIAL TREATMENT --

MAUREEN says IN A BAD WAY, MAYBE?

JANICE says WELL,
CERTAINLY A TAKING AWAY OF
MORE MAINSTREAM RIGHTS THAT
MOST EMPLOYEES HAVE.

MAUREEN says AND SO THEY DO
NOT HAVE TO PAY THE MINIMUM
WAGE ON THE FARM.
I KNOW, TOO, WE'VE TALKED IN
THE PAST ABOUT WHO QUALIFIES
FOR OVERTIME AND THERE WERE
DISTINCTIONS AND MUSHROOM
GROWERS FOR EXAMPLE DON'T
HAVE TO BE PAID OVERTIME.
THAT'S INTERESTING SO YOU
THINK SHE'S GOT IT MAKE A
CASE SHE WASN'T A
LABORER IN THE FIELD -

JANICE says YEAH, SHE
WAS IN MANAGEMENT. YEAH.

MAUREEN says GOOD LUCK, APRIL - THANKS.
CATHERINE IS IN NIAGARA FALLS. HI CATHERINE!

Catherine says HELLO, HOW ARE YOU?
THANKS FOR TAKING MY CALL.

MAUREEN says YOU'RE WELCOME.

Catherine says I HAVE SOME
QUESTIONS ABOUT WEIGHT
DISCRIMINATION, IF THEIR
THERE'S PROTECTION FOR
EMPLOYEES LIKE MYSELF WHO
ARE ALWAYS BANISHED TO
THE KITCHEN.
I WORKED IN HOTEL AND FOOD
ADMINISTRATION FOR YEARS.
I'VE ALWAYS WANTED TO BE A
RESTAURANT MANAGER, I CAN'T
SEEM TO GET PAST KITCHEN
MANAGER OR CAN'T BECOME
DINING ROOM MANAGER EITHER.
I'VE WORKED FOR DIFFERENT
AGENCIES AND GROUPS AND I
WAS WONDER IF THERE'S
ANY PROTECTION OUT THERE FOR
PEOPLE LIKE MYSELF.

JANICE says ONE OF MY
VERY BRIGHT LAW STUDENTS, I
TAUGHT THE EMPLOYMENT LAW
COURSE AT OSGOODE THIS TERM
AND SHE BROUGHT INTO CLASS
ONE DAY A CASE THAT CAME
FROM EITHER B.C. OR ALBERTA
THAT TALKED ABOUT
WEIGHT-RELATED
DISCRIMINATION AND THAT
WEIGHT AGAIN WAS A DISABILITY.
IT'S A MEDICALLY-RELATED
CONDITION THAT TENDS FOR
MOST PEOPLE TO BE CHRONIC.
YOU KNOW, YOU'RE OVERWEIGHT,
YOU'RE OVERWEIGHT, AND IF
YOU ARE DISCRIMINATING ON
THE BASIS OF WEIGHT YOU'RE
CONTRAVENING HUMAN RIGHTS
LEGISLATION.
SO, IF YOU CAN IDENTIFY ONE
EMPLOYER, I THINK IT'D BE
DIFFICULT TO HAVE REDRESS
AGAINST ALL THE EMPLOYERS
WHO'VE DISCRIMINATED AGAINST
YOU THAT WAY, BUT IF YOU
IDENTIFY ONE EMPLOYER WHO'S
USING THE FACT THAT YOU'RE
OVERWEIGHT TO KEEP YOU IN
THE BACK AS OPPOSED TO BEING
IN THE FRONT, THEN OFF YOU
GO TO THE HUMAN RIGHTS
COMMISSION, SEE IF YOU CAN
MAKE THE CASE.
ASIDE FROM THE ACTUAL WEIGHT
ITSELF AS A DISABILITY,
THERE WAS A CASE A FEW YEARS
AGO IN ONTARIO THAT LINKED
WEIGHT DISCRIMINATION TO
GENDER DISCRIMINATION.
IT WAS CALLED THE SWISH/SWISH CASE.
A MAN WAS HARASSING A
CO-WORKER AN OVERWEIGHT
FEMALE CO-WORKER AS SHE WAS
WALKING BY HIS DESK.
AND HE WOULD SAY TO HER
“SWISH, SWISH, SWISH, SWISH,”
WHICH SHE TOOK TO MEAN THE
SOUND OF HER PANTYHOSE
RUBBING TOGETHER AND SHE
MADE A COMPLAINT TO THE
HUMAN RIGHTS COMMISSION AND
THEY SAID YUP, THAT KIND OF
REMARK, NOTWITHSTANDING THE
FACT THAT ON ITS FACE SEEMED
TO RELATE TO HER BEING
OVERWEIGHT WAS SUFFICIENTLY
LINKED TO HER AND HER SEX
THAT IT WAS ALSO SEX DISCRIMINATION.

MAUREEN says THAT'S SORT OF
THAT PSYCHOLOGICAL
HARASSMENT WE WERE REFERRING
TO IF SOMEONE'S GOING TO SAY
THAT TO YOU EVERY TIME YOU PASS BY.
THE THING IS THE EMPLOYER IS
NEVER GOING TO ADMIT THAT IT
WAS HER WEIGHT THAT
PREVENTED THEM FROM
PROMOTING HER.

JANICE says THE FACT OF
THE MATTER IS THE HUMAN
RIGHTS COMMISSION IS USED TO
GOING INTO SITUATIONS, DOING
INVESTIGATIONS -- EMPLOYERS
ALSO NEVER COME TO THE TABLE
AND SAY “YOU'RE RIGHT, WE
CONSIDERED IT AND THIS IS
THE REASON WHY WE PREVENTED
HER FROM WORKING UP FRONT.”
THEY ARE SKILLED AT LOOKING
AT ALL THE CIRCUMSTANCES AND
LOOKING AT “WHAT IS THE EXPLANATION?
IS THERE AN EXPLANATION BUT
FOR THIS INDIVIDUAL'S WEIGHT
THAT WOULD KEEP HER FROM
WORKING IN THE FRONT?”
AND VERY OFTEN THERE'S NONE.
VERY OFTEN THE THING JUST
SPEAKS FOR ITSELF.

MAUREEN says OKAY. GOOD LUCK.
THANK YOU VERY MUCH FOR THE
CALL, CATHERINE.
LYDIA IS IN ACTON.
HI LYDIA.

Lydia says HI.

MAUREEN says HI.

Lydia says UM, I WAS JUST
PHONING ABOUT MY HUSBAND HAD
WORKED FOR THIS COMPANY FOR
18 YEARS, AND HE RECENTLY
HAD A STROKE ABOUT A YEAR
AND A HALF AGO.
NOW HIS COMPANY HAS INFORMED
US LAST WEEK THAT HE'S NO
LONGER WORKING THERE, AND
ALL HIS BENEFITS ARE GOING
TO BE CUT OFF.
NOW, MY HUSBAND IS 45 YEARS
OLD, AND I HAVE THREE KIDS,
AND I HAVE, YOU KNOW, NOWHERE
ELSE TO TURN.
SO I'D LIKE TO KNOW, LIKE
WHAT CAN I DO?

MAUREEN says AND HOW MANY
YEARS AGO WAS THIS STROKE?

Lydia says UM, LAST JANUARY.

MAUREEN says OH, OKAY.

JANICE says THIS IS AN
EXAMPLE OF THE “DOCTRINE OF
FRUSTRATION” IN OPERATION.
PROPERLY APPLIED WHAT SHOULD
HAVE HAPPENED HERE IS THE
EMPLOYER WOULD HAVE MADE
INQUIRIES OF YOU TO FIND OUT
WHAT THE PROGNOSIS IS FOR
YOUR HUSBAND AND IF THE
PROGNOSIS IS THAT HE WILL NOT BE
ABLE TO RETURN TO WORK, HE'S
PERMANENTLY DISABLED AS A
RESULT OF THE STROKE, THEN IT
IS WITHIN THEIR RIGHTS AFTER
A PERIOD OF TIME, AND AFTER
18 YEARS, IT'S PROBABLY A
YEAR, TWO YEARS, SOMETHING
LIKE THAT, IT IS WITHIN
THEIR RIGHTS TO CALL THE
EMPLOYMENT CONTRACT OFF.
SAY IT'S BEEN FRUSTRATED.
IT'S BECOME IMPOSSIBLE TO PERFORM.
AND IN THOSE CIRCUMSTANCES,
THEY DO NOT HAVE TO -- THE
EMPLOYER DOES NOT HAVE TO
PROVIDE THE EMPLOYEE WITH
ANY FORM OF COMPENSATION.
WHAT SOMETIMES HAPPENS IS
THAT EMPLOYERS DON'T APPLY
THE DOCTRINE OF FRUSTRATION
VERY WELL SO, THEY MAKE A
DECISION BASED ON THEIR OWN
MEDICAL INFORMATION, THEY
NEVER ASK THE EMPLOYEE WHAT
THE PROGNOSIS IS AND THEY'RE
VIEWED AS HAVING ACTED PREMATURELY.
SO I THINK YOU HAVE TO FOCUS
ON WHAT THE PROGNOSIS IS,
BUT UNFORTUNATELY IF THE
PROGNOSIS IS NOT VERY GOOD,
AND THAT'S INFORMATION THAT
IS WITH YOUR HUSBAND'S
EMPLOYER, THEN THEY MAY BE
WITHIN THEIR RIGHTS TO CALL
THE CONTRACT OFF.

MAUREEN says WHAT ABOUT THE
BENEFITS THOUGH?
ISN'T THAT WHY YOU PAY INTO THEM?

JANICE says WELL, THE
BENEFITS ARE A FORM OF
REMUNERATION, SO IF THE
INDIVIDUAL IS NOT WORKING,
IF THE EMPLOYMENT
RELATIONSHIP HAS COME TON TO
AN END, IT'S JUST ENDED,
THEN THERE'S NO ONGOING
OBLIGATION FOR THE EMPLOYER
TO PAY FOR BENEFITS.
NOW, THE EXCEPTION WOULD BE
IF YOUR HUSBAND AS A RESULT
OF THE STROKE HAS BEEN
RECEIVING LONG-TERM
DISABILITY BENEFITS, HE'S
THEN IN THE STREAM.
SO IT IS NOT WITHIN THE
EMPLOYERS' RIGHTS OR THE
INSURERS' RIGHT
TO SAY NO MORE LONG TERM
DISABILITY BENEFITS.
BUT IN TERMS OF ALL THE
OTHER BENEFITS --

MAUREEN says LIKE EYEGLASSES
AND DENTAL.

JANICE says IT FOLLOWS
FROM THE EMPLOYMENT
RELATIONSHIP AND IF IT'S AT
AN END, IT'S AT AN END.

MAUREEN says INTERESTING BUT
I'M STILL CONFUSED ABOUT THE TIME.
SHE SAID HE HAD THE STROKE LAST JANUARY?
THAT'S HARDLY ANY TIME YET.

JANICE says IN TERMS OF
HOW LONG YOU HAVE TO WAIT
BEFORE THE EMPLOYMENT
CONTRACT CAN COME TO AN END
BECAUSE IT'S BEEN FRUSTRATED,
IT'S A FLEXIBLE STANDARD.
THE LONGER THE PERSON HAS
BEEN EMPLOYED, THE LONG
LONGER THE EMPLOYER HAS TO WAIT.
HOWEVER, THAT BEING SAID, IF
IT BECOMES VERY CLEAR WITHIN
SIX MONTHS, WITHIN A YEAR
THAT THE PROGNOSIS IS NOT
GOOD -- YOU KNOW, THE
MEDICAL PROFESSIONALS ALL
AGREE THAT THIS PERSON
CANNOT COME BACK, THEN IT IS
OPEN FOR THE EMPLOYER TO
DECLARE THAT THE CONTRACT
CONTRACT HAS BECOME FRUSTRATED.

MAUREEN says SO DO YOU ADVISE
THEM TO TALK TO A LAWYER?

JANICE says WELL, YEAH,
YOU PROBABLY WANT TO TALK TO
A LAWYER AND FIND OUT
WHETHER ALL OF THE THINGS
THAT THE EMPLOYER HAS TO DO
IN ORDER TO FIND THAT THE
EMPLOYMENT CONTRACT HAS BEEN
FRUSTRATED, YOU KNOW, HAVE
BEEN DONE SUCCESSFULLY.
A LOT WILL DEPEND ON IN FACT
WHAT THE STATE OF YOUR
HUSBAND'S HEALTH IS, AS WELL.

MAUREEN says YEAH, OKAY, GOOD LUCK.
THANKS LYDIA FOR CALLING.
ALICIA IS IN CHATHAM.
HI ALICIA.

Alicia says HI HOW ARE YOU?

Maureen says GOOD.

Alicia says GOOD.
MY QUESTION IS - MY HUSBAND
WORKS FOR A VERY LARGE
FRANCHISE IN OUR AREA AND IT
HAS RECENTLY BEEN PURCHASED
BY ANOTHER OWNER, AND AS THE
NEW OWNER, IT'S HIS EX-WIFE,
AND SHE HAS MADE WORKING
CONDITIONS VIRTUALLY
IMPOSSIBLE AT THE WORKPLACE.
HE NOW HAS TO WORK ALL
WEEKEND, HE'S ON 14, 15
STRAIGHT MIDNIGHT SHIFTS,
THEN HE HAS TO GO STRAIGHT
IN ON DAY SHIFTS.
EASTER WEEKEND IS COMING UP
AND SHE WON'T GIVE HIM ANY
TIME OFF TO SPEND AT HOME
WITH OUR FOUR KIDS.
SHE'S DENIED ACCESS TO HIS
BENEFITS PACKAGE, ANY OF HIS
BENEFITS AT WORK, SHE WON'T
ALLOW HIM TO HAVE THEM, AND
SHE DEMANDS THAT HE DOES
WORK THAT DOES NOT -- IS NOT
ENTAILED IN HIS JOB
DESCRIPTION.

MAUREEN says AND SHE'S THE
ABSOLUTE OWNER OF THE NEW
COMPANY?

Alicia says NO, SHE'S NOT THE
OWNER, SHE'S THE MANAGER.
AND MY HUSBAND HAS GONE TO
THE OWNER AND QUESTIONED
THIS AND HE SAID THAT AS THE
MANAGER SHE HAS OVERALL
AUTHORITY AND HE'S SUPPOSED
TO WORK IT OUT WITH HER.

MAUREEN says WOW.

JANICE says WELL, ALL
SORTS OF THINGS GOING ON THERE.
IN SOME FRANCHISE
ARRANGEMENTS -- NOW NOT ALL
OF THEM BUT IN SOME
FRANCHISE ARRANGEMENTS THERE
IS AN OPPORTUNITY TO
COMPLAIN ABOUT WORKING
CONDITIONS TO THE HEAD
OFFICE OF THE FRANCHISE.
NOW IT DEPENDS.
I KNOW THERE'S ONE
PARTICULAR FRANCHISE
ARRANGEMENT I'M THINKING OF
THAT DOES HAVE THAT MECHANISM.
SO SOME OF THEM DO.
SO IT MIGHT BE POSSIBLE FOR
YOUR HUSBAND TO GO UP A
LEVEL AND COMPLAIN AT THE
HEAD OFFICE ABOUT THESE
WORKING CONDITIONS.
AND IN FACT, IN SOME TYPICAL
FRANCHISE ARRANGEMENTS, THE
FRANCHISOR INSISTS THE
FRANCHISEE ADHERE TO
EMPLOYMENT-RELATED LEGISLATION.
SO YOUR HUSBAND'S COMPLAINT
ASIDE FROM EVERYTHING ELSE,
WORKING VARIOUS HOURS,
VARIOUS CONTRAVENTIONS OF
THE EMPLOYMENT STANDARDS ACT,
THAT'S IN CONTRAVENTION OF
THE FRANCHISE AGREEMENT, SO
YOU, FRANCHISOR, STEP IN
AND DO SOMETHING TO HELP ME.
ASIDE FROM THAT,
POSSIBILITIES OF TOO MANY
HOURS BEING WORKED AND
HOLIDAYS NOT BEING TAKEN - SO
THOSE ARE VIOLATIONS OF THE
EMPLOYMENT STANDARDS ACT.
SO AGAIN, YOU MIGHT WANT TO
GO ON THE RECORD, MAKE A
COMPAINT OR DO IT ANONYMOUSLY.
THE OTHER INTERESTING TWIST
TO THIS IS THE WHOLE THING
ABOUT THE RELATIONSHIP AND
THE FACT THAT THE MANAGER IS
THE EX-WIFE OF THE EMPLOYEE
MAY VERY WELL COME UNDER
FAMILY STATUS UNDER THE
HUMAN RIGHTS CODE.
SO AGAIN, SHE IS USING THE
FACT THAT THEY WERE ONCE
FAMILY, SO ARGUABLY FAMILY
STATUS, TO DIFFERENTIATE OR
DISCRIMINATE AGAINST HIM.
SO THE HUMAN RIGHTS FOLKS
MIGHT WANT TO HAVE A LOOK AT
THIS AS WELL.
SO THERE ARE ALL SORTS OF
WAYS TO UNRAVEL IT.

MAUREEN says I'M JUST
WONDERING, IF THE HUMAN
RIGHTS PEOPLE DID STEP IN
AND JUST EVEN MADE THE FIRST
PHONE CALL, SOMETIMES IS
THAT ENOUGH TO GET --

JANICE says SOMETIMES.

MAUREEN says -- THE HEAD OF
THE COMPANY TO SAY TO THE
MANAGER “ALL RIGHT, BACK OFF.”
I MEAN, NOT EVEN LETTING HIM
HAVE ACCESS TO THE BENEFITS
EVERYBODY ELSE GETS?

JANICE says SOMETIMES
THAT IS WHAT THE CASE IS.
OR YOU GO UP A LEVEL TO A
MORE FORMAL MEDIATION AND
MOST OF THE MEDIATIONS DO
RESULT IN SETTLEMENTS.

MAUREEN says YEAH, IT DOESN'T
ALWAYS GO RIGHT TO COURT.

JANICE says NO.

MAUREEN says WHICH IS THE
MOST EXPENSIVE WAY.

JANICE says WELL, UNDER
THE HUMAN RIGHTS COMMISSION
WHAT YOU END UP WITH IS THE
BOARD OF INQUIRY WHICH IS
THE ADMINISTRATIVE
EQUIPMENT OF THE COURT.
BUT MOST DO NOT END UP THERE.
MOST GET DISPOSED OR SETTLED
WELL BEFORE A
RECOMMENDATION'S MADE IT GO
TO THE BOARD OF INQUIRY.
AND EVEN ONCE THE
RECOMMENDATION IS MADE, MOST
OF THOSE SETTLE, TOO.

MAUREEN says ALL RIGHT, GOOD LUCK.
THANKS ALICIA.
ROBERT IS IN TORONTO.
HI ROBERT!

Robert says HELLO.

MAUREEN says HELLO.

Robert says GOOD AFTERNOON.
I HAVE A QUESTION REGARDING
CONSTRUCTIVE DISMISSAL AND
YOUR TIMEFRAME FOR
PROCEEDING WITH SOME SORT OF ACTION.

JANICE says OKAY.

Robert says MY SITUATION WAS
I ACTUALLY QUIT A POSITION,
AND I DON'T WANT TO SAY THE
NAME OF THE FIRM OR THE
COMPANY, BUT THAT WAS IN
SEPTEMBER OF 1997.
MY PREVIOUS BOSS -- I WORKED
THERE FOR SEVEN AND A HALF
YEARS, AND I HAD THREE SUPERVISORS.
THE SECOND-LAST SUPERVISOR
WENT TO A NEW POSITION, AND
I TALKED TO THEM AND THEY
SAID IT WAS CONSTRUCTIVE DISMISSAL.
I WENT TO THE LABOUR BOARD,
THEY SAID IT WAS
CONSTRUCTIVE DISMISSAL, THEY
DIDN'T HANDLE IT - THAT I HAD
TO CALL THE LAW AUTO-REFERRAL SOCIETY.
I GOT A LAWYER, HE TOLD ME
IT WAS CONSTRUCTIVE
DISMISSAL, I DIDN'T HAVE ANY MONEY.

MAUREEN says YOU BETTER TELL
US WHAT IT WAS.
BECAUSE WE'RE GOING TO RUN OUT OF TIME.

Robert says IT WAS 1997.

MAUREEN says YEAH, BUT HOW
WERE YOU CONSTRUCTIVELY DISMISSED.

Robert says IT WAS JUST MADE
SO MISERABLE I FINALLY QUIT.

Maureen asks DID THEY CHANGE THE WORK?

Robert continues IT WAS -- THERE WAS ALL
KINDS OF THINGS GOING ON,
AND THE LAWYER THAT I HAD
SAID IT WAS CONSTRUCTIVE
DISMISSAL AND THEN FOR FIVE
MONTHS HE DIDN'T DO ANYTHING
AND THEN HE JUST KEPT ON
SAYING “WELL, I HAVEN'T
HEARD FROM THEM.”

MAUREEN says ALL RIGHT, WE
HAVE TO GIVE IT TO JANICE.
WE ONLY HAVE A MINUTE LEFT.
WHAT DO YOU THINK?

JANICE says GENERALLY
SPEAKING, YOU HAVE SIX YEARS TO
BRING YOUR ACTION.
I THINK THAT'S REALLY WHAT
YOUR QUESTION IS ABOUT.
SO SIX YEARS TO BRING AN
ACTION - SO WE'RE WITHIN THAT LIMIT.
AS FAR AS WHETHER WHAT
HAPPENED TO YOU IS
CONSTRUCTIVE DISMISSAL OR
NOT, I THINK THE FACT THAT
THE MINISTRY OF LABOUR AND
YOUR FIRST LAWYER HAS SAID
TO YOU THAT, YOU KNOW,
YOU'RE WORKING, YOU'RE GOING
IN THE RIGHT DIRECTION IS
HELPFUL, ALTHOUGH THE CASE
LAW IS VERY GREY, AND IN
THIS CASE, THE ONUS IS ON
THE EMPLOYEE TO SHOW THAT HE
OR SHE HAS BEEN
CONSTRUCTIVELY DISMISSED.

MAUREEN says WHICH USUALLY INVOLVES - THEY CHANGE THE
NATURE OF YOUR WORK SO MUCH THAT -

JANICE says IT'S A
UNILATERAL ALTERATION OF AN
ESSENTIAL TERM OR TERMS OF
THE EMPLOYMENT AGREEMENT.

MAUREEN says OKAY, THAT HELPS.
SORRY WE DIDN'T HAVE MORE TIME.
THANK YOU ROBERT AND JANICE.

JANICE says MY PLEASURE.

Some book covers appear as Maureen talks.

MAUREEN says JANICE RUBIN
PRACTICES EMPLOYMENT LAW IN ONTARIO.
FOR MORE HELP CHECK OUT A
COUPLE BOOKS “CREATIVE
SOLUTIONS, PERSPECTIVES ON
CANADIAN EMPLOYMENT LAW” AND
“FOR BETTER OR FOR WORSE” A
PRACTICAL GUIDE TO CANADIAN
EMPLOYMENT LAW, BOTH
PUBLISHED BY A.P.P.
TO CONTACT THE MINISTRY OF
LABOUR LOOK FOR THE PHONE
NUMBER IN YOUR BLUE PAGES OR
VISIT THEIR WEBSITE.

A caption reading “Ministry of Labour” appears on a brown background. Maureen reads the website information.

MAUREEN says AND THANKS FOR WATCHING
“MORE TO LIFE” TODAY. I'M MAUREEN TAYLOR,
HOPING YOU'LL JOIN ME MONDAY THROUGH FRIDAY ON TVO
AT ONE O'CLOCK.

A closing slate reads “The advice given in the preceding program is of a general nature only. Viewers should consult their own legal advisor for legal advice specific to their circumstances.”

Watch: Labour Law #2