Indentured servitude is no more
Amanda had worked as a massage therapist for a baby massage therapy company for two years. She worked three days a week.
The boss decided he needed somebody to work on Canada Day. A few days before the holiday, he said “can you please let us know if you will cover Friday in North York?”
She said “I can work Friday if I can get double time.”
He said “what do you mean double time? You are already getting a stat for it so it will be double.”
She said “I am confused, I get stat pay regardless if I work the holiday or not. I already have plans for Canada Day, however, what would be my incentive to come in?”
He said “No thank you.”
A few days later, the boss confronted her at work in a private room and asked why she had tried to blackmail him. Amanda claimed he approached her in a threatening manner and would not let her speak.
Amanda called the Ministry of Labour’s Occupational Health and Safety Branch and filed a complaint for harassment.
A ministry inspector showed up a few days later and did not reach any conclusions.
A day after the ministry inspector had shown up she was given a warning letter by the boss for “blackmailing the owner to cover a shift by asking double pay after knowing there is no one to cover the shift.” Amanda refused to sign it. Later that day she was provided with a formal letter of termination. He did not give her the two weeks’ minimum termination pay required by the Employment Standards Act and she filed a complaint.
He said he was extremely upset by Amanda’s attitude and called her demand “extortion” or “blackmail.”
Generally speaking, only people who work at a hospital or a continuous operation like a hotel, motel, tourist resort, restaurant or tavern may be required to work on a statutory holiday. Everyone else is free to refuse. The boss could not make Amanda work on July 1.
The only way the boss could get out of paying the minimum requirements of the Employment Standards Act termination pay sections was by demonstrating that Amanda was guilty of “wilful misconduct, disobedience, or wilful neglect of duty that had not been condoned by the employer.” Of course Amanda had done none of those things. The employer asked for a favour and Amanda told the employer how much money she wanted in exchange for that favour. Amanda was asking for more money than would have been required as a minimum under the Employment Standards Act to work on a statutory holiday that she did not have to. Unions negotiate such things in contracts all the time. The Employment Standards Act sets out minimums, not maximums. Somehow Amanda’s very unsophisticated boss did not understand this. He was outraged and overreacted. He was ordered to pay the two weeks’ termination pay by an investigating officer and when he appealed that order to the labour board, the decision was affirmed.
There is no difference between Amanda asking for extra money to work on a statutory holiday and somebody asking for a raise. If the answer is no, they may decide to look for work elsewhere. If the answer is yes, then it is less likely that the employee will be lost. The employment relationship is, or should be, a constant negotiation. It is not a dictatorship.
There used to be something called indentured servitude. In Merry Olde England, people would sign a contract of indentured service in order to be taken on as an apprentice. They would agree to work for the blacksmith for a certain number of years for room, board and compensation. Those contracts could be sold, loaned or inherited during their life. If a servant ran away the local constabulary would help hunt them down and drag them back. Of course all such arrangements are illegal now in civilized countries, but there are echoes of the ancient tradition evident in Amanda’s boss’ position.
This is a two-way street, however. I have received many calls over the years from employees who felt there was some sort of obligation to be provided with a yearly raise or an increase in exchange for extra duties. There simply is not. The employment relationship is a bargain made between the employer and the employee. They are both free to leave. Although finding a new job is not necessarily easy, it does not happen if you don’t look. If the employer will not give you a raise, it may be because they simply cannot afford it or because they think you will not bother to actually do something about it.
This article was originally published by The Hamilton Spectator.
