Changing Employment Terms | Author Bram Lecker
Changing Employment Terms
A Cobourg based Tim Horton’s franchise made the news yesterday. Due to the increase in minimum wage mandated by Bill 148, the franchise owners informed their employees of changing employment terms. To compensate for the extra wage costs, employees would no longer receive paid breaks, benefits and other incentives. And with this, employees across the province wondered, could their employers do this, too?
Anti Reprisal Protection
The first thing we address when meeting with employees in this situation is the practical reality. Most fear reprisal from their employer for criticizing seemingly unfair corporate policies. Predictably, the Cobourg Tim Horton’s franchisee appears to have had exactly this affect on one staff member. The CBC quoted an anonymous employee who feared a job loss for speaking up.
“I feel that we are getting the raw end of the stick,” said one front line employee who asked to remain anonymous out of fear of losing their job.
To this employee, we say the law is on your side. Our Employment Standards, Human Rights and Occupational Health and Safety legislation protect you. Consequently, they guarantee you the freedom to address your employer about any employment matter causing you concerns. Undoubtedly, the law forbids your employer from punishing you for questioning them or standing up for your rights.
Specifically, your protections under Ontario’s Employment Standards Act, 2000 (ESA) include the following scenarios: Asking your employer to comply with the law; filing a complaint against them; providing evidence to an ESA officer; testifying in a proceeding against your employer and many more.
The ESA explicitly places the burden on your employer and not you. They have to prove the reprisal against you was for something else. Significantly, these statutes would reinstate you back to your job if your employer fires you under such circumstances.
Breach of Contract: Constructive Dismissal
Secondly, employees across Ontario need to understand that employers cannot substantially and unilaterally change the terms of your employment. This constitutes strong grounds for a constructive dismissal lawsuit. For the Tim Horton’s employees in Cobourg, a constructive dismissal case would depend on the significance of the benefits reductions made by their employer relative to their total remuneration.
Whether you received this in writing or not, benefits offered by your employer are a form of compensation. Our Courts view them as essential components of your employment relationship as well as the terms of your employment contract. Accordingly, your employer cannot simply take them away or significantly reduce them without consideration. This would be akin to them suddenly lowering your wage without notice.
As employers make choices about managing costs related to the minimum wage hike, we caution them against taking the same actions as the Tim Horton’s franchisees in Cobourg. Ultimately, the decision might end up costing them significantly more than what they hoped to save, should an employee quit in protest and sue for breach of contract.
Lecker & Associates are employment and disability benefits lawyers. We exclusively represent employees of Ontario and have been practicing this area of law for over 35 years.
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