Your Rights
Construction workers get shaftedI've written extensively on the complexity of employment laws and the inequities of the employment standards legislation in Ontario. ALAN SHANOFF |
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Employment laws are unduly complex and make it very difficult for any employee to understand their real entitlement to notice of termination or pay in lieu of such notice.
Also, the laws that are supposed to protect employees contain bizarre exemptions. For example, gardeners, information technology professionals, swimming pool installers, mushroom growers, flower growers, and many other deserving groups are not entitled to receive overtime pay.
But construction workers may have it the worst. First, the laws relating to the maximum number of hours of work per day and per week do not apply to construction workers. In addition, the laws relating to the provision of minimum eating periods per shift don't apply either.
But what is arguably worse is that construction workers are exempted from even the minimum termination and severance sections of the legislation. That means they aren't entitled to any protection from the Ministry of Labour if they are terminated and are not given any notice, pay in lieu of notice or severance pay.
The termination and severance requirements of the employment standards legislation are by no means generous and employees are entitled to sue for wrongful dismissal if they want more than the legislation provides. But construction workers are placed in the unenviable position where their employment standards entitlement is non-existent, so if they want any compensation in relation to their terminations they must use the courts and sue for wrongful dismissal.
Using the courts can be expensive, although many employment law specialists will take on deserving cases on a contingency basis. In other words, you don't pay unless you win. This problem will also be partially offset when the monetary jurisdiction of the small claims courts in Ontario increases from $10,000 to $25,000 on January 1, 2010.
ADDITIONAL HURDLES
But construction workers who sue for wrongful dismissal may face additional hurdles in their lawsuits. For example, if their employment has been cyclical or they have had a history of layoffs -- which is often the case -- then a court may dismiss their wrongful dismissal action and award no monetary damages. So it's not surprising that there are very few wrongful dismissal actions in the construction industry.
Of course, the rights of unionized construction workers are contained in their collective bargaining agreements. The laws seem designed to force construction workers to seek the protection of a union to provide the protection the law fails to supply.
I know that our provincial government faces a lot of priorities with diminishing resources but isn't it time that we took a good hard look at our employment standards legislation and turned it into a logical coherent body of law that provides equitable protection to workers? The strange exemptions that have been passed over many decades due to the efforts of lobbyists and special interest groups must be re-examined and tossed out. Let's have fair employment laws for everyone.
-- Alan Shanoff was counsel to Sun Media for 16 years and is currently a freelance writer and teaches media law.
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