By Howard Levitt
From unions to the return-to-office, here are six of the major developments in employment law this year
What have been the major developments in the field of employment law in 2022? Here’s a rundown of what I see as the six biggest:
1. Union organizing
According to data from the U.S. National Labour Relations Board, unions south of the border won more elections this year than at any time in the last 20 years. The number of victories increased 80 per cent over the prior year and twice as many workers were represented.
More Americans approve of unions — 71 per cent according to Gallup — than at any time since 1965, when union membership rates were more than double what they are now. Although we do not have comparable data for Canada, my experience suggests a similar trend.
The reason is simple. With inflation near 10 per cent, the average wage increase in Canada at 3.4 per cent leaves employees dramatically behind where they were even a year ago. Couple that with working from home or hybrid work, there is less connection to their employer (even though that makes it harder for unions to reach the employee group). Smart employers, who have not had to worry about unions for the last number of years as union membership dropped continuously, are engaging firms like mine in sessions with their management groups as to how to remain union-free.
2. The case of Pohl vs. Hudson’s Bay
This Ontario Superior Court case reminded employers of the need to vigilantly adhere to their employment obligations at the time of dismissal.
Hudson’s Bay was ordered to pay $55,000 in moral and punitive damages because it walked its employee out the door when firing him, was late in providing and inaccurately completed his ROE, delayed paying his employment standards termination and severance pay and, at the time of dismissal, offered him a junior sales associate position that had terms eliminating his future rights to severance.
Many employers walk employees out the door when dismissing them, so this case is cautionary. Although Hudson’s Bay might have been careless rather than deliberate regarding the ROE and severance, that will not serve as an excuse.
As for the job it offered him, the court obviously viewed it as being too clever by half given the reality — which courts recognize — that employees at the time of dismissal are vulnerable. The courts will invariably provide employees the protection which they believe the employer should have provided.
3. The case of Kosteckyj vs. Paramount Corp.
This interesting decision by the Alberta Court of Appeal found that employees who have their salary and benefits reduced have only 10 days to take the position that it is a constructive dismissal, failing which they will be deemed to have accepted the reductions. This is a question which has long plagued employers, employees and employment lawyers.
4. The case of Gracias vs. Walt Dentistry
This case serves as a lesson, particularly to employees and their lawyers, to not make exaggerated allegations of human rights or other abuses or they will be punished in costs at the end. It also sends a message to not sue in Superior Court for cases that legitimately should be in small claims. As well, it reminds employers not to make unfounded allegations of cause only to withdraw them later.
5. Older workers shown the door
Another trend we saw in 2022 was that of employers disproportionately dismissing older workers. Employers relied on the hot job market, the best in 50 years, to dismiss employees who they had wanted to let go for a long time but had been concerned about severance costs.
This year, because such workers could find work quite readily, with almost two job vacancies for every unemployed worker, employers’ severance costs were dramatically reduced since the employees would either find work or the employer could prove in court that they could have found work.
6. The return to the office
Last but not least, the return to the workplace has been the biggest employment law theme of 2022 (and will be the subject of an upcoming column). Employers generally want employees back in the workplace for team-building and productivity. Employees, to a large extent, are resistant.
We have reached the point where employees have a good argument that they have been permitted to remain home far longer than the pandemic required so that a recall to the office is a constructive dismissal. Employers have either had to accept that fact or, if they permit employees to remain working remotely, have them sign contracts permitting them to recall them at a future point with a defined advance notice.