It’s that time of year when businesses evaluate revenue projections for the upcoming year, along with budgets and of course, staff performance. Employees, in turn, eagerly anticipate pay raises and perhaps promotions. After all, you have given it your all this year and the fruits of your labour should now emanate. Ontario’s progressive regime of employment laws offer numerous fundamental protections to workers. It includes the right to overtime pay, vacation benefits, severance, parental leave, a guaranteed safe working environment, etc. However, the law does not include an automatic right to a pay raise or promotion. Such business decisions rest entirely at the discretion of your employer, regardless of your performance. This revelation leaves many employees shocked and disappointed.
As employment lawyers, our work puts us at the front line of dysfunctional employment relationships. Under some circumstances, legal intervention is critical when employers unfairly target employees out of a pay raise, bonus or promotion.
Pay Raises & Human Rights Violation
The Ontario Human Rights Code prevents employers from discriminating against you for your race, religion, sex, sexual orientation or disability. If you believe your boss passed you up for a promotion or pay raise because of discriminatory practices, then you may have a grievance. However, denying you the raise or promotion, in and of themselves, will not be sufficient. You must demonstrate that the denial came at the heels of a pattern of discrimination against you, constituting a breach of the Code. To craft an airtight case for human rights damages, we would require documented evidence, over time, of these transgressions.
In such circumstances, employees frequently shy away from pursuing legal action for two reasons. First, they fear retaliation and second, they worry about the legal costs. Regarding the latter, contact us first before you worry unnecessarily about our fee. Straightforward cases often only require a stern letter to your employer, educating them about your rights and prompting them, in no uncertain terms, to get back in their lane. Others may need a phone call or two to negotiate a settlement. Even cases that require the intervention of a judge can be expedited swiftly and cost effectively through the summary judgement procedure.
Regarding reprisals, understand that the law is on your side. If your employer demotes or fires you following your complaint, then the Human Rights Act allows us to go after them for an illegal reprisal. This would entitle you to severance, human rights damages and even reinstatement back to your original position.
Neither legal fees nor the threat of retaliation should stop any employee from seeking help for an injustice at work. The alternatives are far worse. Consider the toll on your mental health and well being or the prospect of quitting in frustration, when you do not have another job lined up.
Just like discrimination, workplaces that harbour bullying and harassment create an environment that is toxic and harmful for employees. This also occurs when employers unilaterally change the terms of the working relationship and remuneration. All of these result in a breakdown of trust, causing workers to resign, unwillingly.
Under normal circumstances, employees forego entitlements to severance pay if they resign. However, if you are forced out the door because of unacceptable conditions at work, then you can allege a constructive dismissal. This will allow you to pursue your severance entitlements, along with any other bad faith and human rights damages due to a violation of the Human Rights Code.
Bonus pay is another reason that causes fires in employment relationships this time of year. When the bottom line triggers employers to cut costs, bonus obligations stick out like low hanging fruit. Some might eliminate it all together. Others could announce retroactive elimination of bonus pay before it becomes payable to you. When your employer fails to pay out a predetermined bonus, the courts will establish whether they have breached your contract and substantially altered the terms of your agreement. The latter constitute grounds for a constructive dismissal.
Our laws generally favour non-discretionary bonus pay when it is based on a predetermined objective or calculation. Throughout your employment, the law upholds your contractual right to this type of bonus pay.
Lecker & Associates have advocated for employees for over 35 years. If you believe your employer has unfairly passed you up for a promotion or withheld a pay raise or bonus because of discriminatory practices, then contact us. We understand this area of law better than most. An initial assessment of your case is free.
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