Wrongful termination and human rights most problematic claims
Are employees becoming more litigious? In an effort to answer this question, Canadian HR Reporter and the Human Resources Professionals Association (HRPA) teamed up to ask HR professionals about the legal landscape as part of the monthly Pulse Survey series. A total of 533 people, consisting of HRPA members and Canadian HR Reporter readers, responded to the survey which was conducted in September 2010.
Employees more litigious: Survey
Being able to handle legal actions brought against employers is becoming increasingly important for HR professionals, according to the latest Pulse Survey.
Eighty-four per cent of respondents believe competence in dealing with litigation has become somewhat or much more important for HR professionals over the past five years, found the survey of 533 Canadian HR Reporter readers and members of the Human Resources Professionals Association.
Once an employee brings a case against an employer, HR has to gather witness statements and all the appropriate documentation as soon as possible to prepare for the case, said Robert Smith, managing partner at Injury Management Solutions in Dundas, Ont.
“The longer you delay in that, the less likely you’re going to get the true story,” he said.
But HR professionals also have a role to play in protecting employers from litigation in the first place, said Enda Soostar, an HR professional in Barrie, Ont., with 20 years’ experience.
“It’s our responsibility to prevent the organizations we support from walking into legal minefields. That’s our primary obligation,” she said.
For example, under Ontario’s new workplace violence legislation, employers have a duty to protect employees from violence, harassment and domestic violence in the workplace. HR can institute the appropriate mechanisms to protect employees and ensure there’s no cause for them to bring a suit against their employer, said Soostar.
Employees have become increasingly litigious over the past five years, according to 69.6 per cent of respondents. And this will only increase, according to 78.8 per cent.
Much of this increase is due to employees’ awareness of their rights and workplace legislation, said Smith. Societal changes have also made employees more likely to bring a suit or complaint against an employer.
“People used to work for the same employers for years and years. Now there’s a much more transient workforce,” said Smith.
While employees may be quick to talk about taking legal action, it doesn’t always lead to more court cases or arbitration, said Soostar.
“More what I see, and more what we push, is dealing with issues through settlement, through mediation,” she said.
The most problematic cases for employers are wrongful dismissal, termination and severance pay, and human rights complaints, found the survey.
And often the courts favour employees in these cases, according to 69.4 per cent of respondents who say employees tend to have the upper hand.
“There’s a tendency to go along with the little guy, particularly with human rights cases,” said Smith.
Nearly two-thirds (64.6 per cent) of respondents would like to see the government intervene to help reduce employee-led litigation.
One way is to limit the amount of legislation and ensure it is clear, so employers know their obligations, said Smith.
Another way is for governments to make more employers aware of mediation as an option, said Soostar.
“The more we can work with our professional colleagues on introducing mediation as a problem-solving mechanism, the better off everyone will be.”
By Claude Balthazard
As Canadians, we like to think of ourselves as different from Americans. But is the Canadian workplace becoming as litigious as that of the United States?
A strong majority of survey respondents thought employees are more likely to bring legal action against employers today than they were five years ago. And a strong majority felt the situation will be worse five years from now.
It is also costing more to deal with such litigation — for many, legal fees as they relate to employment matters have increased at a rate well above inflation.
The most problematic issues in terms of litigation are wrongful dismissal (67.7 per cent), termination and severance pay (57.9 per cent), human rights complaints/discrimination (54 per cent), accommodation issues (31.1 per cent) and severance arrangements (23 per cent).
Importantly, survey respondents thought the playing field is tilted in favour of employees. Indeed, 74.6 per cent thought the courts and other adjudicative bodies are tilted in favour of employees, whereas only 14.9 per cent felt the courts and other adjudicative bodies are tilted in favour of employers.
An interesting finding is that the perception of bias in favour of employees increases with seniority in the profession. Specifically, the percentage who felt courts and other adjudicative bodies are biased in favour of employees is 53.6 per cent for entry-level respondents, 62 per cent for individual contributor respondents, 64 per cent at the supervisor level, 82.4 per cent at the middle management level and 80.5 per cent at the executive level. Many respondents noted that, because of the bias in favour of employees, many employers choose to settle regardless of the merits of the case.
The comments suggested many causes for the increasing litigiousness of employees. The broad perception was employees have more to gain and little to lose from litigation. Many respondents also linked the increasing litigiousness of employees to the difficult economic conditions and the shrinking job market. Some noted this should not be a surprise — given that organizations are looking after their own interests, it should be expected employees will look after theirs. Some pinned part of the blame on the legal profession — while lawyers used to advise clients to accept fair settlements, now they take all the cases that come their way.
Some respondents said some of the problems are due to the poor treatment of employees by some managers and employees caught in these situations have no other alternative than to seek justice from the legal system.
About two-thirds of respondents (67.8 per cent) thought the government should address the issue and about one-quarter (24.5 per cent) felt this should be a priority for government.
However, several respondents said they oppose government intervention because past government initiatives were largely the cause of the current problems.
It is not surprising to find 85.9 per cent of respondents felt competence in dealing with litigation or possible litigation has become more important for HR professionals over the last five years. A number of comments suggested many employers are becoming more cautious in dealing with employees — a development that some felt is not altogether a bad thing.
Claude Balthazard is director of HR excellence and registrar at the Human Resources Professionals Association in Toronto. He can be reached at [email protected].
