Analysis of the Employment Laws - Assignment Example

The Place of the Employment Law in Striking a Balance among Employers, Employees and Society in General Introduction and the Framework The present employment law is the product of various legislative enactments, judicial precedents, executive orders and some degree of borrowing from international standards, including the United Kingdom’s and United State’s laws (Lynk 16). The Canadian employment law specifically targets the non-unionized employees and employers. This sets the main difference between labor and employment laws. The former are mainly concerned with the unionized individuals and entities. In Canada, each province has the autonomous authority to enact laws that govern employment relations in their jurisdictions, provided they conform with the overall employment laws and the constitution in general. Owing to this autonomy conferred upon the provincial authorities, many employment laws have been developed and applied within individual provinces. On the basis of this, the arguments made in this paper relate to the employment law, with specific reference to the common law, Ontario Human Rights Code (HRC), Employment Standards Act (ESA) and Pay Equity Act (PEA). In this paper I argue that the employment law, beginning with the Common Law up to the statutes that currently govern it has not always attempted to strike a balance among the rights of employers, employees and society in general. I have made reference to relevant statutes; their foundations in Common Law, and analyzed their overall impact on the welfare of employees, employers and the general society. Cognizant of the fact that not all parties are equally appreciative of the legal provisions of employment, this essay focuses on what implications the above stated legal provisions, statutes and judicial precedents have had on the parties. Analysis of the Employment Laws There are numerous attempts to strike a balance between the needs of employees, employers and expectations by society. However, these attempts have at times been hindered by compelling disparities between different laws that the courts should rely on to make sound decisions. In this respect, judges have at times had to overrule certain legal provisions in order to uphold more acceptable thresholds of determination. These disparities in legal provisions that govern the same aspect of employment form the basis of my argument that the laws have not always attempted to uphold a balance among the parties. To the extent that they difference in content, these laws can be considered as objects of perpetuating inequality in law, as each law with a flawed perspective hurts a party to a case while benefitting the other unnecessarily. For instance, we can review the law on wrongful dismissal of an employee in Ontario. In common law, the courts do not have the option of reinstating the wrongfully dismissed individual (Isthatlegal.ca par 3). The common law basis for this argument is that ruling for a reinstatement is tantamount to creating an unlawful association between the court and the dismissed employee. In this case, the employer appears to enjoy greater authority than the employee as provided by common law. The undesirable net effect is that society views employers as being overprotected. Common law gives employers the leeway to dismiss employees knowing that there is no way they could rejoin their workforce. Furthermore, common law is remarkably unfair to employees who, for any reasons, are unable to attend to their work or are simply unable to perform their work optimally. Under this law, no work equates to no pay. This position does not change despite the human grounds behind the inability to work appropriately. However, employees facing these challenges are practically cushioned from the adverse effects of such treatments by the ESA, HRC, and EPA (Ontario par 9). Under the Ontario HRC, the courts are granted the power to rule from a wide range of remedies, including the option to reinstate the affected employee. Specifically, s. 45.2 gives the judges the power to make suitable rulings in accordance with the unique circumstances of the case (Isthatlegal.ca par 8). Effectively, this section of the Ontario HRC lifts the veil provided by common law, and guarantees more suitable options to the parties in a case. The ESA is equally protective of employees when a perceived, wrongful dismissal dispute arises. The act covers matters of the relationships between the victimized employee and their employer up to the period following the ruling for reinstatement. The ESA attempts to strike a balance between the parties by outlining the general expectations in terms of the employer’s conduct. In the event that the employer-employee relationship deteriorates due to unethical/ unprofessional conduct by the employer, the ESA provides for tough penalties on the erring employer under what it terms as “acts of reprisal” in Ch. 9, s. 2. (Isthatlegal.ca par 9). The ESA particularly addresses the problem of non-payment for incomplete or undone work. In c. 41, s. 28 (4) (2000), the employee is entitled to full payment for all work performed for their employer, regardless of whether they may have failed to satisfy the work duration agreed per day (Ontario par 21). This sets the stage for arguably more favorable terms for the employee, and leaves the employer with no justified recourse in case failing to complete the work to specified hours affects other plans by the employer. For instance, if the employee’s portion of work forms the basis of continuation of the work by other employees, the ESA does not provide for a way to address the losses that the employer may incur due to the ensuing idle time (especially where departments produce partially completed products for use by other departments). Even in such cases, the employer is still obligated to first pay up the erring employee for their already worked hours. Conclusion The scenarios presented in this discussion indicate historical inexistence of a balance among employers, employees and society. While many of the current laws appear to more protective of the employee, their foundations in common law are visibly not protective of the employees; they offer greater protection to employers. The present attempts by such laws as the ESA, Ontario HRC and EPA to reverse some of the undue benefits accorded employers by common law also appear to trample the rights of employers in the workplace. Therefore, the employment law and the subsequent laws enacted to protect employers, employees and the societies’ interests have always failed to strike a balance among the various parties. Works Cited Isthatlegal.ca. Guides to Ontario and Canadian Law. (2014). Web. . Lynk, Michael. Union Democracy and the Law in Canada. Just Labor. 1(2002): 16-30. Print. Ontario. Employment Standards Act, 2000. (2014). Web. Read More