Some employers have taken the Covid 19 Pandemic to give them a green light to resort to the freedom of contract mentality of the early industrial revolution to extract major concessions from employees and even put the lives of employees in danger. This is regrettable but by no means surprising. The following is a list of some of the fundamental rights which employees have secured in our law over the years which are of paramount importance during these trying times:
1. Employers have a common law duty to provide a safe work environment for their employees. This has been interpreted to mean that where the nature of the work has inherent dangers which can be curtailed by special tools and equipment, the employer is to provide those.
2. Statutory enactments over the years have also gone so far as to provide employees with the right to refuse to perform work which may expose them to bodily harm or death. In Ontario section 43(3) of the Occupational Health and Safety Act provides employees with the right to refuse work they believe to be dangerous to themselves or other workers. Regrettably, the list of exempted employees is huge and includes persons working in hospitals. Unions representing hospital employees will need to be vigilant in holding employers to their obligations in providing safety equipment to those employees who must provide services and care to patients in highly contagious settings.
3. Unless you are covered by a collective agreement, the common law does not recognize the concept of a temporary layoff. An employee who is placed on "layoff" by their employer as a result of the Covid 19 Pandemic may consider themselves to have been constructively dismissed and sue their employer for damages. Of course the employee would be well advised to seek legal advice in order to weigh the pros and cons of asserting this right. Not every employee will be able to assert this right with a degree of success. In fact, most will not.
About the author:
E.J.Guiste represents clients in employment and human rights law matters - litigation,
if necessary. His focus is primarily on high-handed dismissals and those based on the
breach of public statutes like the Human Rights Code of Ontario and other statutory
laws. He is available for remote consultation. Tel(416) 364-8908 for a reasonable fee.
1. Employers have a common law duty to provide a safe work environment for their employees. This has been interpreted to mean that where the nature of the work has inherent dangers which can be curtailed by special tools and equipment, the employer is to provide those.
2. Statutory enactments over the years have also gone so far as to provide employees with the right to refuse to perform work which may expose them to bodily harm or death. In Ontario section 43(3) of the Occupational Health and Safety Act provides employees with the right to refuse work they believe to be dangerous to themselves or other workers. Regrettably, the list of exempted employees is huge and includes persons working in hospitals. Unions representing hospital employees will need to be vigilant in holding employers to their obligations in providing safety equipment to those employees who must provide services and care to patients in highly contagious settings.
3. Unless you are covered by a collective agreement, the common law does not recognize the concept of a temporary layoff. An employee who is placed on "layoff" by their employer as a result of the Covid 19 Pandemic may consider themselves to have been constructively dismissed and sue their employer for damages. Of course the employee would be well advised to seek legal advice in order to weigh the pros and cons of asserting this right. Not every employee will be able to assert this right with a degree of success. In fact, most will not.
About the author:
E.J.Guiste represents clients in employment and human rights law matters - litigation,
if necessary. His focus is primarily on high-handed dismissals and those based on the
breach of public statutes like the Human Rights Code of Ontario and other statutory
laws. He is available for remote consultation. Tel(416) 364-8908 for a reasonable fee.
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