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The standard of decency

employment lawThe August 23, 2016 HRInfodesk issue includes an article which reports on the results of a March 2016 poll of employers, which determined that over 80% of employers responded that employment legislation and policy is too complicated for small businesses.

I often share this sentiment when researching and writing new sample policies for the Human Resources Policy Pro, many of which are required as a result of new or amended legal obligations.I also have an internal debate with myself over whether most of the new or amended legal obligations answer a real need of employers and employees, or are borne of a need of  legislators to justify their existence, or appear to addressing crises which really aren’t.

And just as soon as I have convinced myself that additional laws and regulations are, for the most part, too onerous to justify their limited value, I read numerous news reports on the prevalency of wage theft in Ontario “Wage-theft victims lost $28M to poor enforcement, statistics show” (Sara Mojtehedzadeh, Toronto Star August 2, 2016) and workplace employment standards violations “Workplace violations widespread in Ontario, government report says” (Sara Mojtehedzadeh, Toronto Star July 27, 2016).

These conclusions come from an interim report of the Special Advisors to the Ontario Minister of Labour released on July 27, 2016 for the Changing Workplaces Review. The Interim Report concludes that “Over 90% of the approximately 15,000 complaints made every year are by people who have left their jobs voluntarily or after they have been terminated,” with about 70% of these complaints being found valid after investigation (page 261). In addition, proactive inspections found violations 75-77% of the time and 80% of the time when inspections were carried out as a result of a complaint.

The Special Advisors attribute the violations of the Act to a number of things including:

  • ignorance of the provisions
  • complexity of the law
  • uncaring attitude of employers regarding legal obligations
  • deliberate business strategy
  • low likelihood of complaint, therefore low-risk
  • belief that fixing non-compliance violations is not difficult and low-cost (page 262).

Much of the Special Advisors’ report relies on a commissioned study by Vosko, Noack and Tucker entitled Employment Standards Enforcement: a Scan of Employment Standards Complaints and Workplace Inspections and their Resolutions under the Employment Standards Act, 2000, March 2016. The study found that small employers (fewer than 20 employees) were disproportionately subjected to inspections than larger employers and the most prevalent violations found by inspectors were regarding public holidays, public holiday pay and overtime pay (pages 43, 44); standards that may be complicated for small employers without human resources or payroll personnel, but which are also standards which all employers have to deal with and for which there are many resources available to inform and educate them.

With my rose-coloured glasses I wish that employment legislation could be simplified to the barest concept of decency at work, a concept supported by the authors of the Interim Report, and that all employers and employees treat each other decently, fairly, with due process and respect in all labour and employment matters. I know, however, that, realistically, no one agrees on what “decent” means, that the definition of “decent” changes from generation to generation, or from sector to sector, and, unfortunately, some people are simply not decent. Ultimately, it lands in the hands of our legislators to determine what standards are decent and to find a way to ensure that all Canadians are offered the same decent standards as their neighbours. And yes, it’s complicated and time and resource-consuming for employers. But that is the price of a decent society.

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HR PolicyPro

The Human Resources Policy Pro is a key resource to assist small and medium-sized employers in all provinces through complicated legislative and policy employment issues to prevent and avoid violations.

Michele Glassford

VP and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of VP and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more
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