Comments on: Human Rights Inquiries from Work

Question: Human Rights Inquiries from Work

Raynyn — Tue, 24 Feb 2009 16:39:23 -0800

Can an employer discipline you for making calls to Human Rights on work time?

If you feel you are being discriminated against at work, do you think it is acceptable to contact the Human Rights Commission during work time? If you feel you are being discriminated against at work, do you think it is acceptable to contact the Human Rights Commission during work time? I live in Canada, and I made a couple of calls to the Human Rights Commission when my employer was changing my duties and threatening to fire me following a medical leave. I also sent my employer an email responding to a request they had made for extensive medical information, which I believed to be beyond what was legal. My employer argues that it was not legal to make these phone calls or send them emails regarding my medical issues and return to work during their time. Are they right?

By: HuronBob

HuronBob — Tue, 24 Feb 2009 16:42:42 -0800

I would suggest you hire an attorney.

By: london302

london302 — Tue, 24 Feb 2009 16:49:55 -0800

These matters should be covered under Canadian employment law and perhaps privicy law which should be your first port of call. Human rights are only usually invoked to cover rights not covered by other specific legislations such as contract law, employment law. There may be some employment helplines such as those set up by Canadian labour law department which you can contact. It may be in your best interest to call them from the privicy of your home.

By: Raynyn

Raynyn — Tue, 24 Feb 2009 17:05:03 -0800

The issues at hand are human rights issues, I am now in the process of pursuing a complaint against my employer under human rights legislation. I'm arguing that they were trying to intimidate me regarding my communications with the human rights commission (retaliation) and they are arguing I didn't have the right to be speaking to them on work time. I can't afford an attorney, so I'm looking for anyone out there who might know something about the legal precedent for a situation like this. Human Rights didn't give me a clear answer when I asked if I had a right to call them from work. Anyone?

By: Fiasco da Gama

Fiasco da Gama — Tue, 24 Feb 2009 17:11:20 -0800

First things first: it's their telephone, it's their email system.
This kind of thing will be covered in your employer's IT policy about use of work resources. They might be open to reasonable personal use of the telephone, or they might not. If they're not, then of course they can discipline you.
As well as the Human Rights Commission, I'd suggest contacting your applicable trade union, and joining it. Labour law and workers' compensation are what trade unions do best.

By: Meagan

Meagan — Tue, 24 Feb 2009 17:16:27 -0800

Anyone?

Sorry, but no one with a true answer (a lawyer specializing in such fields) will be coming in and giving you a definitive answer (lawyers are not encouraged to provide legal advice casually over the internet without knowing your case details). There is generally no legal precedence when it comes to such issues (or if any it varies by province), nor would the existence of a legal precedence be any sign as to whether your individual case had merit or not. This is a very specific issue related to your specific employment contract, as such it really needs the attention of someone with the specific knowledge. I don't mean to put down your question or to give you a non-answer, but seriously, in cases with such relevance and impact to your life, an attorney really is the best option for success. Good luck.

By: Ironmouth

Ironmouth — Tue, 24 Feb 2009 17:53:04 -0800

In the USA, I'd nail 'em. Classic retaliation fact pattern. In Canada, I'd see a Canadian lawyer.

By: phearlez

phearlez — Tue, 24 Feb 2009 17:55:56 -0800

Until such a time as you get a definitive answer from someone, I'd suggest you act as if the answer is "yes they can" and act accordingly. They've already demonstrated their willingness to screw you, why would you want to provide them more ammunition?

Is it worth endangering your larger case to avoid having to make these calls/emails on your own time?

By: *s

*s — Tue, 24 Feb 2009 19:02:42 -0800

IANACL, but if your employer has told you not to make these calls and send these e-mails, you're setting yourself up for aggravation if you do not comply, even if you are somehow entitled to take company time/resources to pursue your claims. If you need free or low cost legal advice, which it sounds like you do, contact your local bar association or see if there is an employment law clinic at a nearby law school. You don't have to (and probably shouldn't) do it on your own.

By: Raynyn

Raynyn — Tue, 24 Feb 2009 19:03:32 -0800

pherlez - I'm not endangering my larger case at this point, just trying to get opinions regarding the past actions. I'm no longer employed there. Had only made two calls, both were directly related to things that were urgent - my employer threatening to fire me for not accepting return to work conditions. I took up no more than 5 or 10 minutes of time with these phone calls, arguably it could have been break time. While they might have an argument about the phone calls, I don't really understand how responding to their request for medical info on work time was an issue. I mean, why should i have to take up my personal time responding to their requests?

By: Grrlscout

Grrlscout — Wed, 25 Feb 2009 01:39:20 -0800

They can fire you for using the phone for personal business if they have a policy in place, particularly if they'd seen the first call and had specifically asked you to not use the phone for personal calls.

If they fired you for this, though, given what you've described, (bullying you into accepting a clearly unacceptable back to work arrangment), you might have a case against them for constructive dismissal.

The most you could threaten them with at this point would be that they would have to take you back. Do you really want to work there?

Talk to an attorney, to whatever the Canadian equivalent of Citizens Advice Bureau is. See what they say.

But really, I'd just chalk it up to experience and move on.

By: mattoxic

mattoxic — Wed, 25 Feb 2009 05:12:16 -0800

Fiasco da Gama is correct, and I say save yourself the trouble.

By: pardonyou?

pardonyou? — Wed, 25 Feb 2009 06:50:18 -0800

In the USA, I'd nail 'em. Classic retaliation fact pattern. In Canada, I'd see a Canadian lawyer.
posted by Ironmouth at 8:53 PM on February 24 [+] [!]

Maybe yes, maybe no. We don't have enough information. In the U.S., the facts most important would be whether the employer has an existing policy or practice of prohibiting non-work related telephone calls on work time. If it has applied such a practice consistently in the past (and if the severity of the discipline has been consistent), then it would be hard to prevail on a retaliation claim, since the most likely motive is enforcement of the policy, not retaliation for calling human rights. As an anecdote, the civil rights laws in the U.S. generally don't give an employee the right to take time off from work to attend a hearing or deposition relating to a discrimination charge or lawsuit -- generally the employee has to take vacation. An employee who takes time off work without permission to attend a civil rights hearing can be subject to discipline to the same extent as other unexcused absences. This isn't too different, analytically.

On the other hand, if it's clear that the employer is not being "content neutral" and allows employees to make non-work related phone calls, then a retaliation claim is far more likely to prevail.

I am a U.S. employment lawyer -- have been for 13 years. This could be totally different in Canada.

By: Raynyn

Raynyn — Wed, 25 Feb 2009 08:17:30 -0800

I looked up the personal phone use policy, all it says is personal phone calls are to be kept to a "minimum". I'd rarely used the phone for personal reasons outside of these calls, so I definitely was not in violation.