10.9 Employee Relations

Labour relations are the relationship between the employer and employees within unions through collective agreements, and employee relations are the relationship between an employer and its employees without collective agreements.  Generally, Human Resources departments are dedicated to maintaining and improving employee relations. Policies and procedures are designed to support employees and their interests, and employee relations help to build a sense of community within the organization. Positive relationships between the employer and its employees lead to increases in employee happiness, productivity, and profits.

Employment Laws

There are three sets of laws that govern employment in Canada.  It is essential that Human Resources professionals understand the laws, train others in abiding by the laws, and be able to interpret the laws for the employer and the employees.

Common Law

Employees are protected by laws that govern relationships in the workplace. Common law employment rights are the contractual rights and obligations of the employees and the employer. These do not apply to unionized workers. Common law is a term for non-unionized workers that describes anyone who performs services if the employer can control their work.  In other words, the employer can control how the employee’s services will be performed. If a dispute arises, either party can file a lawsuit to determine the contract’s meaning or how it was intended to be applied in specific circumstances. Over time, many cases are accumulated and used as a guide for interpreting employment contracts, known as the common law of employment.  It is important for Human Resources to understand common law of employment and how it influences the terms of employment, and, how to interpret employment contracts. According to Belcourt et al (2023),  Some examples of employment contracts state:

• Obligation of the employee to follow policies and rules and not be insubordinate to others
• Obligation of the employee to support the economic interests of the employer
• Obligation of the employee to be loyal to the employer
• Obligation of the employee to perform their job to the best of their ability
• Obligation of the employer to provide a reasonable notice if an employee’s job is to be terminated
• Obligation of the employer to treat employees with respect, civility, and dignity
• Obligation of the employer to maintain a safe and health work environment

When either party breaches their obligation, it is critical that Human Resources interpret the terms of the contract.

Statutory Employment Regulations

Along with Common Law, there is an overlap with the statutory employment regulations established in Canada and the provinces/territories.  These laws have been discussed throughout the text.  Some of them include employment equity, pay equity, other laws that include minimum wage, overtime pay, vacations, health and safety, and laws to protect less advantaged people in the workplace.  As well, employees have the right to unionize without interference from the employer or any discipline.

Collective Bargaining Legislation and Labour Arbitration

As was discussed earlier in the chapter, collective bargaining legislation assists in improving working conditions through the collective voice of the employees, and they bargain for contracts with professional union representatives. These are different than employment contracts with individuals. The common law contract does not apply to the collective agreement. An example would be the termination of employees.  An employer must notify an individual if they lose their job and may terminate for no cause.  In a unionized environment, the employer would notify the union, and there must be a stated cause for termination. This is an important difference between unionized and non-unionized employees.  Another difference is how contracts are enforced. If there is a breach in the contract, a unionized employee will file a grievance that the collective agreement has been breached, and if not settled, the grievance would go before a labour arbitrator of the courts.  If a non-unionized employee believes the contract has been breached they need to sue the employer in the courts.  This can be time-consuming and costly for the employee.

Employment Contracts

Common law rules apply to individual employee contracts.  The employee and the employer receive some benefits from the contract, and both must agree to the terms. It is important for Human Resources departments to ensure the contracts include all the important terms of the employment before it is signed.  Once the contract is signed, it cannot be changed unless both parties agree.

Constructive dismissal is when an employer breaches the contract by changing terms within the agreement.  Examples might include reducing wages, demoting the employee, or a benefit they have had that is within the contract. The employee would treat this as a breach of contract and sue the employer to recover any damages or losses. It is the Human Resources professionals that need to be careful these types of breaches do not occur.  If an employer wishes to change the terms, it is Human Resources’ responsibility to seek the employee’s approval to change or terminate the existing contract, with proper notice, and offer the employee a new contract with new terms.

Wrongful dismissal, covered under Common Law, occurs when the employee is terminated and not given the amount of severance pay or reasonable notice from the employer.  The courts determine how much notice is “reasonable” based on how long the employee has worked for the company, as well as work experience and training.  The employee can sue the employer for breach of contract.

An employer can dismiss employees for any reason and at any time (that does not fall under Human Rights legislation), or no reason at all.  The only requirement are to give proper notice as per the agreed contract. Employers do have the right to terminate employees who have breached the contract for serious reasons that include dishonesty, sexual harassment, bullying, violence, or gross incompetence. This is considered summary dismissal for cause, with no notice.

Employee Privacy Rights

Employers have the right to ensure their employees properly conduct themselves at work, such as respecting others, dignity for all, honesty, and not misusing equipment in the work environment.  Surveillance in workplaces is now commonplace.  However, employees have a right to privacy.  Balancing the rights of both parties can be complex.  Arbitration law recognizes the need for employers to protect their business; however, it recognizes that employees’ right to privacy needs to be protected. Where companies have been challenged about surveillance, sometimes the arbitrators forbid the surveillance, do not allow searches of personal effects, and prohibit snooping in employees’ emails and internet use.  However, when an employer can justify these checks and reasons for them, arbitrators will allow them.

Some provincial governments have passed laws to protect employee’s rights to privacy. They require balancing employer and employee rights related to privacy and assessing each situation when making decisions.  The federal Personal Information Protection and Electronic Documents Act (PIPEDA) also regulates an employer’s data collection related to its employees and the employee’s right to access the information in some cases.  Organizations covered by PIPEDA must seek employee approval before collecting, using, disclosing or disseminating employee information. The organization can only use the information for their own purposes.  If they wish to use the information outside the original consent, they must seek approval again.

Another issue is the increase in the use of social media (Instagram, Facebook, LinkedIn) and the abuse of this medium in the workplace. Under Common Law, employers can monitor their employee’s behaviour.  Employees are supposed to only perform work-related tasks while on the job.  Employees can be terminated for misusing company technology for personal use while on the job.

However, this is not absolute.  Over time, Common Law has slowly recognized the right to employee privacy at work, particularly with surveillance cameras.  They sometimes rule in favour of the employee as the employees feel violated, and the employment contract terms suggest the employee will be treated fairly and in good faith.  In these cases, employees are awarded severance for leaving their jobs.

Employee privacy and employer rights raise many issues of legal concern to both parties.  Hence, Human Resources professionals must develop clear policies and procedures for social media use, surveillance, and how technology can be used and monitored. When the policies are direct and clearly expressed to all employees, it is easier for employees to win in a court dispute.

Employee Conduct Away from Work

Employers do not have authority over an employee outside of the workplace. However, if an employer can prove that an employee’s conduct adversely impacts the best interests of the company, for example, their reputation or the employee’s ability to perform the work, an employer may be justified in terminating employment. In other situations, such as an employee defaming the employer in public or on social media or disclosing confidential information in a public forum, they have been terminated.

Ethics in Employee Relations

This chapter has emphasized the legal requirements of Human Resources within an organization and how employees and employers can use the laws to protect themselves.  However, beyond the law, there are ethics and ethical behaviour.  Ethics is a set of standards established by the employer of acceptable conduct and moral judgement of its employees.  Ethics helps employers and employees understand what acceptable behaviour is and what is not acceptable behaviour on the job. Ethics penetrates all aspects of employee relations and affects Human Resources.  Human Resources professionals need to develop their own code of ethics that govern the relationships of its people. They include the values, beliefs, and attitudes of the organization.  Human Resources is central in designing and communicating the values and standards established within the code of ethics. As well to enforce these standards. They may also provide training to employees in ethics and what is acceptable. They attempt to build an ethical culture within the organization to avoid unethical behaviour and ensure everyone is treated fairly and equitably.

Union-Free Organization Strategies

Employers need to embrace positive employee relations to build a strong community within the workplace and increase employee retention. HR departments can create solutions to employee relations, so unions are unnecessary. According to Orechwa (2021), some best practices for strengthening workplace culture are:

1. Recruitment/Selection:  Choose the right people for the jobs.  Establish a strong employer brand emphasizing all the positives about working for a union-free company.
2. Supervisor Involvement:  Always ensure supervisors are visible and trained to help employees.
3. Communication: A positive workplace has good communication between and among its employees from the “top to the bottom” of the organization.  Providing feedback and finding quick solutions for employees keeps employees happy.
4. Training: Supply management with an understanding of unions.
5. Detection of Union Rumors:  Ensure that any gossip or rumours circulating about unions is reported to Human Resources.
6. Human Resources Involvement: Human Resources has a balancing act between employees and management. They need to be knowledgeable about unions. They need to treat employees with respect and be responsive. They must act with integrity and build relationships with management and the employees.
7. Compensation: Human Resources must conduct wage surveys and understand the local labour market.  They need to advocate for competitive wages and benefits to avoid unionization. Other benefits such as wellness programs gym memberships, company events, flex hours, etc., keep employees satisfied.
8. Retaining Employees:  Retaining good employees is important to the success for organizations.   A solid orientation program outlining the brand, values, culture, and job expectations ensures employees feel like they belong to the workplace community.
9. Policies and Procedures:  Policies and procedures must be developed to avoid unions. They can include employee recognition, employee involvement, community involvement opportunities, and fostering employee engagement.  Employees who know they have a voice and will be heard are less likely to form unions.
10. Employee involvement: creating an environment that encourages feedback.
11. Management: Employees sense a management commitment and “buy into” the corporate culture when management is available. The interaction needs to be transparent and sincere.