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The Globe and Mail
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Conflicting advice confuses worker

Tuesday, January 12, 1999
MARGOT GIBB-CLARK

This case-study feature provides expert advice on management and workplace issues. Examples are hypothetical or names have been changed. 

Acme hired Louise for a two-week tryout and told her that if things worked out, she would get a five-day job with two consecutive days off each week.

But then after her tryout came a hiring freeze, and over the next few months she was given conflicting bits of advice -- ranging from "don't wait for us" to the suggestion that she apply for another vacant job at Acme.

Eventually she went to the union, which had not been told of her presence. When the union inquired on her behalf, a senior manager told them Louise had only been hired for six months.

Louise's direct supervisor told her not to worry because that wasn't true. But at this point, the union noticed payroll deductions weren't being made from Louise's cheques, which suggested she was being paid under the table.

After several months, the job Louise was doing was advertised outside of Acme. She inquired about it and was told she had only been hired for six months part-time -- 15 hours a week -- despite the fact she had been working as many as six days a week. She had even turned down another full-time job offer because she wanted to work for Acme. What should be done to straighten out this mess? 

Morna Ballantyne, director of national services at the Canadian Union of Public Employees, Ottawa:

The company appears to have acted illegally in a number of ways. Under-the-table hiring is effectively illegal because employers are required by law to make payroll deductions for items such as unemployment insurance.

As well, most collective agreements require further deductions for things such as health plans, and they often set out formal procedures for filling vacant positions.

It seems Acme has gone around these and entered into an informal agreement with Louise. Anecdotal evidence seems to show such deals on the rise.

"I think that is due to a couple of things," Ms. Ballantyne says, citing "relatively high unemployment in Canada and cuts in the social safety net." Fewer workers are eligible these days for unemployment insurance. Other supports, such as welfare or training funds, have also been cut back.

All that means there are more desperate people out there who will take work under any conditions.

Also, over the past decade, there's has been a restructuring of the economy that involves many more small employers. Some of these small companies don't have formal human resources policies in place and hire without knowing the legal restrictions.

The challenge for unions is to set up systems to monitor the growth of these informal practices and make sure employees' are getting what they are due.

Even if there was no union at Acme, it would still be good management practice to fill the vacancy formally and to set out, probably in writing, the terms and conditions of Louise's employment.

Then it would have been clear to her what Acme expected of her and she would have been able to decide whether or not to take the job. 

Rick Schubert, a lawyer and partner at KPMG's human resources consulting practice, Toronto:

Louise should contact the union again, Mr. Schubert suggests. What can or can't be done for her depends on the nature of the collective agreement between the union and Acme.

If it covers part-timers, she may be able to lodge a grievance to the effect that she is already in the job and that to hire someone else and let her go constitutes unjust dismissal.

If the contract allows the company to exclude part-timers from the union, then she could file a grievance on a different basis -- that her direct supervisor, a company representative, told her she had a full-time position, so she shouldn't fall under the clause excluding part-timers.

If the company wins the argument that Louise falls outside the collective agreement, then she could bring a lawsuit and argue "wrongful hiring," along the lines of the well-known Supreme Court of Canada case Queen v. Cognos. In that case, Mr. Queen was enticed away from a secure job to another that never materialized. The court awarded him damages.

If you or your company would like this column to address a particular people problem, contact workplace reporter Margot Gibb-Clark by fax at 416-585-5695 or by E-mail at mgibb-clark@globeandmail.ca


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