The practice of law has changed. The days of the gun-slinging Harvey Specter-esque litigator, sipping single malt scotch whiskey and ready to obliterate his opponent at a moment’s notice, has given way to a new breed of tech-savvy, collaborative and cost-conscious lawyers who are more concerned with serving their clients’ personal and business needs than delivering memorable zingers in the courtroom.
There is still a time and a place for the Harvey Specters. Certain conflicts are unresolvable and require the full arsenal of “bet the company” legal mercenaries. But business, technology and work culture have evolved. Employment lawyers know that it often is not worth the cost, uncertainty and effort involved to demoralize an adversary in the courtroom. Working towards collaborative solutions and front-loading the risk of litigation are often in everyone’s best interests. In this post and next week we will explore Alternative Dispute Resolution in Employment law.
First, we’ll take a look at some of the formal ways of resolving workplace disputes.
Formal Resolution of Workplace Disputes
In Ontario, there are currently three main forums for resolving workplace disputes, each serving different purposes and bringing their own set of strengths and weaknesses.
1. Ministry of Labour (MOL)
The MOL investigates complaints regarding violations under the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act and is a free resource for employees who could not otherwise afford a lawyer. The MOL Employment Standards hotline offers information about employment standards and can help employees to understand their ESA rights. Employees can also make employment standards claims through the MOL which will deal with issues related to ESA rights, such as unpaid wages, vacation or overtime. The MOL and employment standards claims only deal with statutory ESA rights, so will not be useful for addressing disputes arising from the contract of employment or other entitlements.
2. Human Rights Tribunal of Ontario (HRTO)
The HRTO is a free dispute resolution process to address violations under the Ontario Human Rights Code. While it is a useful forum for employees to address workplace discrimination issues, decision makers are limited in their ability to award punitive and aggravated damages, unlike a judge in court.
A court action can address violations of any employment law related statute, contractual disputes, or claims for punitive or aggravated damages occurring as a result of an employment relationship. However, there are filing costs associated with a court action which will often require a lawyer for proper representation and the losing parties can be liable for the winning party’s costs. Perhaps for all these reasons, people have been turning less and less to courts to resolve disputes.
Stay tuned for our post next week in which we will discuss the alternative to these formal dispute resolution forums.