While it is hard to predict with certainty what will happen in
Canadian workplaces during 2013, McCarthy Tétrault
attorneys discern a few trends that are likely to influence
employers during the upcoming year.
Downward Pressure on Wages
Given the current state of the economy and the uncertainty
surrounding global finances, it is expected that there will be a
continued downward pressure on wages, salaries and benefits in
Canada during 2013. This is consistent with what we are seeing at
the end of 2012 and the likelihood of large compensation increases
Many Canadian employers went through the economic downturn in
late 2008 and early 2009 by engaging in selective workforce
reductions. The problem employee or the less-productive worker was
often laid off, but generally speaking, there were few large scale
plant closures or reductions. It remains to be seen whether a
similar approach will be used by employers in 2013.
For the last several years, many Canadian workplaces have
adopted approaches to minimize head counts. It is less than certain
whether future cuts in payroll and benefits can occur without
triggering a larger reduction in the workforce.
We expect that employment standard complaints and human rights
complaints will increase if the economy remains flat. Our
experience has been that employees who are asked to leave the
workplace (even in situations involving a
"reduction-in-force") often file complaints with
government regulatory agencies asserting that there are ulterior
motives for the termination.
Consequently, in weak economic times these agencies see an
increase in complaints, and we correspondingly deal with responding
to more complaints. In Canada, employment standards and human
rights matters are complaints that occur most frequently,
especially considering that these forums are far less costly to
employees than going before the courts.
Less Union Activity
In weaker economies, there are three typical union reactions
– all of which we anticipate in 2013. Organization activity
usually decreases. Canadian unionization rates are low, and in a
poor economy we do not generally see aggressive or significantly
increased organizational activity. Most workers want to remain
employed and not deal with any uncertainties associated with
joining the union or encouraging collective bargaining.
Typically, labor disputes go down during a soft economy. Most
unionized workers are somewhat fearful of a labor dispute resulting
in the permanent closure of their workplace. Union demands for wage
increases and other changes to collective agreements tend to be
moderated as well.
According to our experience, grievances increase. Unions take a
strong stance to adhering to the black letter law of the collective
agreement and are not prepared to turn a blind eye on issues they
view as important, like privacy issues. In particular, layoff and
seniority provisions in collective agreements must be strictly
Privacy has become a more important issue in Canadian
workplaces, as you have read previously in "Cross
Border." In those jurisdictions where there is
privacy legislation, we anticipate a general increase simply
because complaints are rising each and every year. In a downturned
economy, a disgruntled employee is more likely to find other ways
to complain about workplace issues, including using the Privacy
Commission as an outlet for their unhappiness.
We will see what actually unfolds as the year progresses and we
will keep you posted in future additions of "Cross
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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