Should there be a mandatory course on employment standards for employers?
By Stuart Rudner
I have often heard people say that there should be a required course before anyone becomes a parent. Sometimes, I think the same should be true for anyone who is thinking of becoming an employer. Perhaps there should be a mandatory course on employment standards and other relevant laws before anybody can hire their first employee.
I say this not because I believe it will eliminate all breaches of relevant laws. There are those employers that are fully aware of their legal obligations and choose not to abide by them. In some cases, they are simply "playing the odds", knowing that based upon the makeup of their workforce, it is unlikely that they will be challenged.
I worked with a client like this many years ago. He would routinely call for my advice, I would explain the law, and he would then do something different from what I recommended. For example, if he advised that he intended to dismiss an employee and I recommended a severance period of five to seven months, he might offer three weeks. Our relationship ended when I realized he would never follow my advice and he realized he was paying good money for advice he had no intention of following.
That being said, there are many employers that are simply unaware of their legal obligations. This is particularly true in certain industries, such as hospitality. The reality is most employers become employers out of necessity; they want to run a business, and need help. They think of themselves as entrepreneurs or businesspeople; not employers.
The human resources aspect of running a business is tangential to the primary purpose, and something viewed as a necessary element as opposed to the focus. As a result, many well-intentioned individuals end up running organizations that routinely and sometimes egregiously breach employment standards legislation and other laws that apply to the employment relationship. They do so out of ignorance, which is where some type of course may be helpful.
Over my years of practice, I have had employers explain to me that they do not have to pay overtime to employees when they come in on the weekend because "they are happy to do so and do not expect to be paid.” I have seen employers on the verge of bankruptcy try to treat everyone fairly by imposing wage cuts across the board (including themselves), not realizing these wage cuts constitute constructive dismissal and expose them to substantial liability. I have seen employers implement unpaid suspensions, temporary layoffs and probation periods without any actual right to do so, simply because they assumed they had such a right.
In addition, of course, there is a common misconception that the Employment Standards Act sets out the only obligations of the employer, and that simply checking the act, or calling the Ministry of Labour, will address all of the employer's obligations. As discussed in a previous blog post, that could not be further from the truth. However, many employers assume their obligations in the context of dismissal, for example, are limited to those set out in the applicable legislation, and proceed on that basis only to find themselves named in the lawsuit.
Of course, employers will resent any effort to impose courses or other obligations, particularly when they want to focus on starting up a new business. However, if they could be made to understand how it will help them avoid costs and liability, it would likely be more palatable. While there would be no expectation that they will become experts in employment law, such an introductory course, with an exam, will at least make them aware of the key issues and help them to understand when they should seek legal advice.
And, hopefully, it would help to reduce the number of breaches of employment standards legislation and other laws, which would benefit individuals as well, particularly those that are unsophisticated and unaware of their rights.