The pandemic has caused difficulties for both employers and employees, making it a delicate balance between the rights of both
“The liberty of the citizen ends where the liberty of another citizen begins.” Victor Hugo said those words to describe the conflict between the rights of individuals when they overlap. In the workplace, a similar conflict can happen when the rights of employees come up against the rights of employers. Employment and human rights lawyer Christopher Achkar discusses the battle between these rights and how it has come into focus during the pandemic, when everyone is facing difficulties.
The battle of rights, mine versus yours, has been a longstanding conflict. Understanding the essence of those rights is as important as the changes those rights undergo.
This battle of rights between employers and employees has been similarly continuing to rage. In fact, it was, as many Hegelians and Marxists would say, the catalyst that brought about workers’ revolutions and the unionized workforce.
Despite many changes in worker rights and the landscape of the workplace in general, today’s employers and employees echo disputes of the past and remain arguably diametrically opposed.
The good news is that, in the 21st century, there has been a rise of entrepreneurs who simply do not want it all. An increasing number of companies are relying on management tools and techniques designed to bring them closer to their workforce in an effort to lead change from the bottom up. More companies are relying on tools such as Six Sigma, Lean Six Sigma, Agile and other diagnostic and self-improvement tools that allow for better integration of goals and duties for employees.
While employment agreements and company policies typically establish rights and obligations, there remain intricacies and unexpected events that may lead to grey areas that are not captured even by the most comprehensive of policies.
The current pandemic has left many feeling uncertain. Is my business going to stay afloat? Am I going to have a job next week? Am I going to get laid off? Will I need to lay off my employees?
Employers and employees alike are at a heightened stage of panic, and while some have had decades to develop a contingency plan, many of those plans go out the window when panic strikes.
Reasonableness and sympathy considering the current climate
Most employers are not inherently evil, just as most employees are not inherently bad. Beneath the surface of most decisions, there is more than meets the eye.
We have received calls from employees who had no basis for constructive dismissal claims attempting to sever their relationship, for no reason, from their employer during the pandemic.
We have also received calls from employers attempting to cut their workforce without paying minimum termination pay entitlements to employees.
On its face, both sides appear to be acting unfairly and taking advantage of the other.
On a closer examination, the employee who wanted to sever their relationship was making the same amount of money at their work as they would be receiving under the Canadian Emergency Response Benefit (CERB).
The employer who did not want to pay the full termination pay wanted to use that money to buy a new business to rehire its previous employees.
There are instances where employees may feel their employer was sympathetic in certain situations but then claim that the employer is unreasonable in others. Conversely, employees may be sympathetic to their employer for the difficulties they are experiencing while at the same time making unreasonable demands.
To illustrate, while some employers have provided flexible working arrangements for their employees with family obligations during the pandemic, those same employers have reduced their pay by as much as 50 per cent and expect the same level of output. While the employer may believe it’s being flexible and providing accommodation, it’s abusing its position and the climate to get away with the otherwise unlawful wage reduction.
Some employers are cutting corners to remain profitable, without considering the unrealistic goals the business may have previously had. There are also employers who have little to no regard about the health and safety, including physical and mental, of their employees.
Further problems occur when employers change contracts mid-stream. By changing employment terms without notice or consideration (an added benefit for the employee), employees may sense their position is at risk, along with all the benefits they received. In a climate where employees may not have options for alternative employment, some employers are relying on the limited options some employees have and exploiting this vulnerability under the guise of the “uncertain environment.”
Employers should be mindful to act reasonably despite the current pandemic. Even in the absence of case law, employers should lean toward reasonableness now more than ever. Even if, subjectively, they believe they can justify exploitation here and there, a reasonable person in their shoes may in fact look to doing what is right, even if no one is watching.
Uncertainty of jobs and business viability
With many Canadians losing their jobs or being laid off during the pandemic, employees generally feel uncertainty regarding their employment and the job market. Many likely feel that they are walking on eggshells, while others are wondering whether they will be next.
Employers should take the time to be open and honest with their employees about what is going on with the company — this can help foster a healthy, transparent workplace environment where the team is on the same page.
Employers should be mindful of the current common fears many employees have. While it is incumbent on employers to make sure their companies are producing, they must remain reasonable when it comes to the limits in a market where players are holding on dearly to their cash. Employees may face high levels of stress or anxiety, and offering accommodation where applicable may heighten the morale and take the team further.
That is not an absolute burden on the employer alone, however. Employees need to continue to be mindful of their employers’ difficult positions as well, where blanket answers and responses may not work in special circumstances and different approaches may be warranted.
Many business owners are taking out loans to be able to afford the storefronts that staff employees. Some employers have cut their own salaries, so they do not subject their employees to lower salaries.
Unforeseen events such as the current pandemic can have disastrous financial consequences for companies. Larger organizations are typically in a better position to withstand financial turmoil, while smaller mom-and-pop shops may have no choice but to close for good. Employees’ understanding and sympathy during this difficult time can be vital in the crawl back to “normal” business operations post-pandemic.
With both sides’ considerations in mind, a healthy working environment can be fostered by demonstrating support, inclusiveness and respect in both directions of the employment relationship.
Who is ‘right’?
The bottom line is that, while company policies and employment contracts outline most rights and obligations, there are many instances where outlining all expectations is simply not possible. Policies and contracts sometimes fail to capture the human element — the element that, among other things, allows us to sympathize and relate to one another, to keep the relationship despite hard times.
Some employers have the best intentions when it comes to their employees, but the abundance of misinformation available online and through other means makes it difficult for employers to obtain and implement the right course of action. This results in contradictory information and employers relying on inaccurate information, which leaves them at a loss.
Not only are laws often confusing to laypeople, various legislation is constantly changing without clear interpretation. Without legal advice or consultation, employers may misinterpret legislation and begin to implement changes in their workplace that will cost them significantly.
On the other hand, employees often do not know their rights and, as a result, agree to unfavourable and unlawful employment terms to keep their job. Employees similarly may receive wrong information from online comments, a conversation with a friend or even a blog.
Both employers and employees can get it wrong — this not only ruins their employment relationship but exposes them to considerable loss and/or liability.
What is worse is that there are people passing off aggressive, unreasonable advice as legal advice.
Employees may be “right” to demand that their rights be upheld if they believe those rights to be violated. Similarly, employers have the “right” to manage their employees and discipline them as necessary. For the relationship to overcome difficulties, to survive or to grow, some degree of reasonableness and sympathy is required from both sides. Everyone is living in an uncertain time where emotions may run higher than logic.
This is an unprecedented time. While panic has set, we are still trying to figure out what will work best for everyone, together. Many employees feel they may not benefit from hiring a legal professional, as everything feels like a mess. The same thought is there for some employers. Some act first and justify later — conduct for which our courts have not historically given passes.
At a time where panic is the theme and the mood is tense, let reason and logic be your guiding principles. Acting rashly can have lasting effects and create a mess to be untangled.
Christopher Achkar is an employment and human rights lawyer and principal of Achkar Law in Toronto. He can be reached at (647) 946-6440 or by visiting www.achkarlaw.com.