A NEW LOOK AT WORKPLACE LAW AS SEEN THROUGH THE EYES OF AN EMPLOYMENT LAWYER AND FORMER JOURNALIST. FIT FOR EMPLOYERS, EMPLOYEES, AND EVERYONE IN BETWEEN

Everything Was Fine Until...

Everything Was Fine Until...

Most employment lawyers can probably finish this sentence even before their clients can. 

The basic refrain from a large number of employees in challenge, when describing their troubles at work, is “everything was going fine until they brought in a new manager/supervisor/boss, and then…” 

In these employees’ eyes, the introduction of a new superior is usually the catalyst for when their problems at work began, whether those problems are differential treatment, a strict implementation of the rules, a denial of past privileges, or anything along those lines. 

The introduction of these new personnel is tricky, and worthy of some focus. While some of these issues may just be workplace headaches, others may in fact violate various elements of workplace legislation. 

Change in Culture

In most of the more innocuous cases, a new supervisor can be seen as a real stick in the mud. They may be more formal than an employee is used to, or bring about rules that most employees thought had fallen by the wayside. 

The lousy news for employees? That’s their job! New managers are often brought into an organization to improve employee performance, or eliminate wasteful spending that is hurting the company financially, and may even be jeopardizing their future going forward. A new manager may bring in austerity measures that frustrate employees, but they are usually doing so at the direction of the business owners, and not with any sort of malicious intent. 

New supervisors may also implement stricter adherence to workplace policies that were previously relaxed at best. An employer is within their rights to make small changes to the business to improve the function of the corporation, much to the chagrin of employees who previously enjoyed a more casual atmosphere. While tighter restrictions on cell phone use or more professional dress on Fridays (just to name examples) may be frustrating, management is usually allowed to make these changes. 

When It’s Not Okay

While some of these changes may be simple annoyances that do not rise to the level of illegality, other changes in managerial conduct are clearly prohibited. 

Under Ontario's Occupational Health and Safety Act (“OHSA”), workplace harassment and bullying are strictly prohibited. OHSA defines workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome,” and workplace sexual harassment, which is also clearly prohibited. 

So what does this mean on the ground? While small changes to the day-to-day workplace that impact all employees equally are likely okay, isolating a single employee and treating them in a harsh and deliberate manner may not be. There are formal mechanisms in place to address any performance issues, but these do not involve harassing an employee publicly, especially in front of their coworkers. Any discipline procedures should of course be carried out privately, and should follow any policies that are already in place. 

The other major consideration for any new managers or supervisors when determining how to govern employees, specifically any individual employee, must be Ontario's Human Rights Code (the “Code”). The Code protects employees against discrimination on a number of grounds we have discussed previously, including age, race, sex, and disability, just to name a few. 

In other words, a new manager cannot simply change an employee’s duties just because the employee is of advanced age, or pregnant, or is living with a disability and requires workplace accommodations. Employers must be mindful of the fact that installing any sort of new superior in the workplace does not change the employee’s human rights under the Code. Any sort of differential treatment of an employee that is based, or may appear to be based on any of the protected grounds under the Code, is prohibited at law, and can help build a strong case if the employee chooses to pursue legal action.

These requirements may seem straightforward, but they frequently get lost in the shuffle. In one recent case before the Ontario Human Rights Tribunal (the "Tribunal"), a pregnant restaurant employee was unable to work in the upstairs of the restaurants, so had made arrangements and obtained a medical note to continue her shifts in the downstairs bar area. However, after a change in management, the employee's accommodation plans were revoked by the employer, and the employee could no longer work the shifts. 

The business' owner claimed before the Tribunal that they were unaware that the employee was pregnant and required accommodation. However, the Tribunal held that despite any individual manager knowing or not knowing the circumstances, it was the business itself (and not any one individual manager) that was responsible for accommodating the employee, and the business did not have a valid reason to change the accommodation plan. The Tribunal ordered that the employee be compensated for lost income, and receive an additional $15,000 for injury to dignity, feelings, and self-respect (a common category of damages at the Tribunal). 

Making Things Better

While managers and supervisors need not worry about their changes being liked or welcomed by every employee, there are things that both sides can do to make any sort of transitional period easier.

For employers, it is worth remembering throughout any time of change that workplace morale can go a long way. While strict adherence to the rules may have its benefits, every workplace develops its own culture amongst employees that usually make the employees feel like they’re part of a larger team. Making swift and drastic changes to that culture may result in some dreadfully unhappy employees, and even negatively impact productivity. 

Instead, an attitude of compromise can do wonders. While flagrant violations of workplace policies do not need to be tolerated, milder infractions in a changing landscape can be dealt with using a softer touch, in order to help employees adjust to a changing landscape. If any discipline is required, it should be done formally and privately, away from the prying eyes of coworkers. Lastly, of course, any systemic workplace changes made should not single out an individual employee, especially not on any of the grounds protected in the Code. 

For employees, new management may unfortunately be a tough pill to swallow. Unwelcome changes to the to the tone of the workplace, especially if it means an end to carefree days, can be frustrating. However, the key is recognizing what changes are permissible and what changes may not be. If you feel a new manager is singling you out, or you are harassed or bullied beyond a simple change in the rules, an employment lawyer can help you assess the situation and decide how to proceed further. 

One last note for employees – while employee awareness about ‘constructive dismissal’ has increased in recent years, it is important to remember that not every case of a changing workplace reaches the threshold of constructive dismissal. Constructive dismissal is a legal test measuring significant changes to an employee’s job description, and simple changes in day-to-day operations will likely not meet this threshold. If you are concerned, however, that you may have been constructively dismissed, an employment lawyer can help review your situation and provide further advice. 

The bottom line is that while new managers or supervisors may cause some initial grumbling from employees, a little bit of understanding on both sides can go a long way.

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It's #BellLetsTalk Day, So Let's Start Talking

Exciting News for 2017

Exciting News for 2017