Transcript Slide 1

No Nonsense Manager or Bully?
Respectful Workplace Issues
Presented by: Rochelle Pauls
Reasons to Deal with Workplace
Bullying
• Harassment is disrespectful, degrading
and demoralizing
• Employees perform better in a
harassment-free work environment
• Legal considerations:
• Workers’ Compensation Act
• Human Rights Code
• Constructive dismissal claims
What is Bullying?
The act of intentionally
causing harm to
others, through verbal
harassment, physical
assault or more other
subtle methods of
coercion such as
manipulation, including
ignoring and isolating
the person
Examples
• Raising unsubstantiated performance concerns
• Threatening and intimidating tactics and
unreasonable demands
• Yelling at, swearing or belittling an employee
• Persistent and unfounded criticism
• Vulgar and demeaning remarks to subordinate
employees
• Refusing to allow an employee to take breaks,
attempting to discipline him without cause and
holding him to a higher standard of productivity
Bullying vs. Legitimate
Management Authority
• The legitimate exercise of management
authority is not bullying
• An exercise of management authority may
cross the line if it is unnecessarily harsh,
cruel or vindictive
Zlatogourskaia v. Veisman (2005
Ontario Superior Court)
• Employer severely reprimanded the
plaintiff for leaving patient records
unattended
• In the course of reprimanding her, Mr.
Veisman yelled and cursed
• The court found the plaintiff had failed to
establish Mr. Veisman’s conduct was
unnecessarily harsh, cruel or vindictive
Bullying vs. Personality Conflicts
• King v. Skyview Financial Advisors (2006
Ontario Superior Court)
• Court found that the employee’s tense
relationship with a co-worker who treated
her with hostility did not impede her ability
to do her job or subject her to any form of
harassment
• The matter amounted to a simple
personality conflict
Bullying Bosses
Shah v. Xerox Canada Ltd. (2000
Ontario Case)
• Mr. Shah worked for Xerox for 12 years
• Took a new position with the company
• Had always received good performance
reviews, bonuses and pay raises before
• 6 months into his new position, manager
raised largely unsubstantiated concerns
with his performance
Shah v. Xerox Canada Ltd.
• At his review, he was told there were
performance complaints against him
• He was not provided with any specific
details and his manager did not verify the
complaints
• Received an unexpected, unjustified and
vague warning letter
Shah v. Xerox Canada Ltd.
• Was asked to sign a list of tasks assigned
to him for completion
• He refused – many were unreasonable
• Got another warning letter and was placed
on probation
Shah v. Xerox Canada Ltd.
• The court found that instead of telling Mr.
Shah what was expected of him and giving
him a chance to respond, his new
manager became “more authoritarian,
impatient and intolerant”
• The manager’s treatment of Mr. Shah
made his continued employment
intolerable
Bullying Co-Workers
• There is an onus on employers to prevent
harassment from occurring between coworkers
• An employer’s failure to prevent the
harassment of an employee by coemployees can lead to a claim for
constructive dismissal
Morgan v. Chukal Enterprises (2000
BC Case)
• Plaintiff had been employed as a waitress
at a pub for 13 years
• Claimed the new kitchen manager treated
her and the other staff with hostility and
rudeness
• He yelled, swore and belittled them, often
in front of other customers
Morgan v. Chukal Enterprises
• Owners took kitchen manager’s side
• Admitted to the court that they were aware
of his behaviour and tolerated it
• Court ruled in favour of the plaintiff, finding
that the situation was intolerable and
represented a fundamental change in her
working conditions
Hertz Canada v. Canadian Office and
Professional Employees’ Union
(2011 Grievance Arbitration)
• Arbitrator found that an employee had
been the target of an intentional silent
treatment by the grievors and that this
conduct constituted harassment
• They “stopped talking to him” in vehicles
while on their way to collect cars and drive
them to other locations
Consequences of Bullying
• Increased absenteeism, turnover and stress
• Increased recruitment costs
• Decreased workplace productivity, morale and
customer service
• Increased risk of accidents and incidents
• Reduced corporate image and customer
confidence
• Legal liability – human rights and constructive
dismissal
Human Rights Liability
• Human Rights Code prohibits
discrimination in employment
• If workplace bullying and harassment
involves one of the protected grounds, an
employer can face liability under the Code
• Remedies can be substantial
McIntosh v. Metro Aluminum Products et
al. (2011 BC Human Rights Tribunal)
• Tribunal awarded the complainant lost
wages and expenses of $17,394.65 and
$12,000 for injury to dignity
• Subjected to sexual harassment
• Was briefly engaged in an affair with the
owner of the company
• After it ended he continued to send
inappropriate text messages, which got
progressively more offensive
Wutke v. Mageria Holdings (2006
BC Human Rights Tribunal)
• Complainant worked as a cook in a pub
• Suffered from short-term memory
problems and chronic back pain
• Kitchen staff yelled at her frequently
• Inferences that her memory problem
resulted from drug use
• Introduced as a “space cadet” to a new
employee
Wutke v. Mageria Holdings
• Tribunal found that her manager knew she
had memory problems and should have
been more sensitive to how things were
said to her
• Should have explained to the other staff
that they should not speak to her in such a
manner
Liability for Constructive
Dismissal
Liability for Constructive Dismissal
• A constructive dismissal claim may be
made if an employee leaves because of
intolerable working conditions created by
bullying and harassment
• Employee can seek compensation for
reasonable notice of termination
Liability for Constructive Dismissal
• Examples:
• Shah v. Xerox – 12 months notice
• Morgan v. Chukal Enterprises – 13 months
notice
• Likely to find constructive dismissal where
the treatment is so unfair or harsh as to
create intolerable working conditions
under which it would be unreasonable to
expect an employee to keep working
Bullying Legislation
• Occupational Health and Safety
Regulation includes a section on “Violence
in the Workplace”
• Federal jurisdiction also has regulation
with respect to workplace violence
• Current B.C. Legislation only prohibits
physical violent workplace harassment
Conclusions
• Prevention is the key
• Conduct will sometimes be questionable –
not every inappropriate management
decision will constitute bullying
• Awareness and communication are
essential
What’s New in the Zoo?
Labour & Arbitration Update
Presented by Taryn Mackie
What’s New at the Zoo?
• Drugs
• Privacy
• Drugs
• Privacy
Audience Poll…
Random Drug & Alcohol Testing
Random Mandatory Alcohol Testing
• Enter Re Irving Pulp & Paper, 2011 NBCA
• Kraft paper mill that in 2006 unilaterally
adopted a workplace policy that included
mandatory and random alcohol testing
• Testing was limited to a breathalyzer
• Testing was limited to employees performing
safety sensitive jobs
Random Mandatory Alcohol Testing
• Re Irving Pulp & Paper, 2011 NBCA
• The “randomness” of the testing was
accomplished by having the names of the 334
eligible employees selected by an off-site
computer
• In any 12-month period, the computer would
select 10% of the names on the list
Random Mandatory Alcohol Testing
• Re Irving Pulp & Paper, 2011 NBCA
• An employee who occupied a safety sensitive
position was randomly tested
• The employee’s test results revealed a blood
alcohol level of zero
• Nevertheless, the Union filed a policy
grievance challenging the “without cause”
aspect of the random mandatory alcohol
testing policy
Random Mandatory Alcohol Testing
• Re Irving Pulp & Paper, 2011 NBCA
• A union has the right to challenge a workplace
policy unilaterally imposed by management
on the basis that the rules fail to meet the
KVP test, which requires, for example, that:
The rule be consistent with the collective
agreement
> The rule be reasonable
> The rule be clear and unequivocal
>
Random Mandatory Alcohol Testing
• Re Irving Pulp & Paper, 2011 NBCA
• The Union in this case challenged the random
mandatory alcohol testing on the
reasonableness criterion
• At arbitration, the Board balanced the privacy
interests of the employee against the safety
interests of the employer, and found that the
policy was unjustified because the employer
failed to establish a need for the policy
Random Mandatory Alcohol Testing
• Re Irving Pulp & Paper, 2011 NBCA
• According to the Board, the employer could
not demonstrate that the mill operations
posed a sufficient risk of harm that
outweighed an employee’s right to privacy
• Specifically, the Board noted that there was
no evidence of prior incidents of alcohol
impaired work performance at the mill and the
mill was not an “ultra-dangerous” place
Random Mandatory Alcohol Testing
• Re Irving Pulp & Paper, 2011 NBCA
• The majority of the NBQB ruled to set aside
the Board’s decision
• The NBQB found that if the “potential for
catastrophe exists”, no prior incidents should
be required
• The NBQB also noted that the breathalyzer
requirement was minimally intrusive and the
testing was limited to safety critical positions
Random Mandatory Alcohol Testing
• Re Irving Pulp & Paper, 2011 NBCA
• The NBCA dismissed the union’s appeal
Past alcohol-related problems are not required if
the workplace is “highly” or “inherently dangerous”
> “Highly” or “inherently dangerous” workplaces
include employers involved in the production and
refining of oil products or chemicals and
employers in the mining and forestry sectors
> The NBCA noted some resistance to classifying
trucking operations as “inherently dangerous”
>
• To be continued before the SCC…
You be the Judge…
Follow your nose?
Do you follow your nose?
• Re British Columbia Maritime Employers
Assn. 2012 CLAD
• 30-day suspension imposed on the grievor for
suspected drug use at work
• The grievor was found in the dock office with
the strong smell of marijuana in the air
• The grievor denied using drugs
• The grievor was in a safety sensitive job
Do you follow your nose?
• Re British Columbia Maritime Employers
Assn. 2012 CLAD
• Witnesses testified that the office was used by
many people and “sometimes stinks”
• The office typically contained dirty coveralls
and garbage
Do you follow your nose?
• Re British Columbia Maritime Employers
Assn. 2012 CLAD
• The grievor described the site as “a potash,
coal and canola oil site with piles of steaming
crud all over”
• There were many animals onsite as well, such
as skunks, geese, and raccoons
• It was not uncommon to smell skunk
Do you follow your nose?
• Re British Columbia Maritime Employers
Assn. 2012 CLAD
• The arbitrator set aside the suspension
Although the foremen believed that they smelled
marijuana in the office, the employer’s application
of “the nose knows” test was insufficient; the
foremen were not experts
> The grievor’s conduct was not particularly
suspicious (e.g. no attempt to conceal anything
and no signs of impairment)
>
Do you follow your nose?
• Re British Columbia Maritime Employers
Assn. 2012 CLAD
• The arbitrator set aside the suspension
There was no “direct, clear, or cogent link” to the
grievor smoking marijuana at the dock office
> Circumstantial evidence of smell alone is
insufficient to establish that link
>
You need something more…
[Insert clip from 1:51 – 2:11]
http://www.youtube.com/watch?v=pTMRYbh
PbZE
Do you follow your nose?
• Re British Columbia Maritime Employers
Assn. 2012 CLAD
• The arbitrator set aside the suspension
>
To succeed, the employer must show, on a
balance of probabilities, with cogent evidence that:
(1) the smell was marijuana; and
(2) the grievor was smoking marijuana
You be the Judge…
Union Access to Personal
Information
Union Access to Personal Information
• Re Port Transport, 2011 BCLRB
• In preparation for collective bargaining, the
Union asked the Employer to produce certain
personal information about employees in the
bargaining unit, including their:
>
Names, addresses, telephone numbers, dates of
birth, e-mail addresses, benefit coverage data
(single, family, enrolled, ineligible, etc.), wage
rates, premiums, job classifications, vacation
entitlements, benefit usage data, etc.
Union Access to Personal Information
• Re Port Transport, 2011 BCLRB
• The Employer refused and said that, in the
interests of protecting employee privacy, it
would not disclose their personal information
to the Union unless the employees had
provided written consent to the Union
permitting this disclosure
Union Access to Personal Information
• Re Port Transport, 2011 BCLRB
• The Employer added that if the Union was
able to obtain their written consent, the Union
should at the same time obtain the
information it sought from the bargaining unit
members themselves
• In the Employer’s words, the Union should
just “make the effort”
• The matter went before the Labour Board
Union Access to Personal Information
• Re Port Transport, 2011 BCLRB
• According to the Union, the Employer’s failure
to provide the information was contrary to the
Code by interfering with the Union’s ability to
represent its membership and by failing to
bargain with the Union in good faith
• The Union was not asking the Employer to
hunt down information from members, only
provide information it already had in its
possession
Union Access to Personal Information
•
Re Port Transport, 2011 BCLRB
•
•
The Labour Board sided with the Union
The Board applied a 2-part test to determine
whether the Employer was in breach of the
Code by refusing to provide the information
(1)
(2)
Does the refusal interfere with the union’s
capacity to represent the employees in the
bargaining unit?
If so, is there a sound business purpose that
counterbalances that adverse impact on the
union’s capacity?
Union Access to Personal Information
• Re Port Transport, 2011 BCLRB
• The Labour Board sided with the Union
>
Applying the test to the facts, the Board found that:
> The Employer’s refusal did interfere with the
Union’s ability to represent its membership in
bargaining, and the Employer did not suggest
that it would be unable to, or have difficulty
with, supplying the information to the Union
Union Access to Personal Information
• Re Port Transport, 2011 BCLRB
• The Labour Board sided with the Union
>
Applying the test to the facts, the Board found that:
> The Employer had no sound business reason
for refusing to provide the information
requested by the Union
Union Access to Personal Information
• Re Port Transport, 2011 BCLRB
• The Labour Board sided with the Union
Providing personal information on the membership
to a union certified to represent the membership
does not raise privacy concerns
> Unions have the right to access the personal
information of bargaining unit employees without
the employees’ written consent where the purpose
of the access is related to the Unions’
representation of their membership
>
Medical Certificate Forms:
One Size Fits All?
• Re OLG Point Edward Casino, 2011 Ont.
• Employer had a third party administrator
manage its sick leave claims and
accommodation claims
• When sick leave or accommodation was
needed, employees were provided with a
standard medical certificate form requiring
various personal medical information,
including diagnostic information, treatment
information, and details of symptoms
Medical Certificate Forms:
One Size Fits All?
• Re OLG Point Edward Casino, 2011 Ont.
• The Union maintained that the requirement to
disclose medical information not mentioned in
the collective agreement was unjustified,
certain of the medical information required
was an invasion of privacy, and requiring the
employee to provide the information to a third
party administrator was inappropriate
• The arbitrator agreed with the Union, in part
Medical Certificate Forms:
One Size Fits All?
• Re OLG Point Edward Casino, 2011 Ont.
• The arbitrator affirmed the longstanding case
law that although an employee’s personal
medical information is generally private, an
employer is entitled to sufficient information to
satisfy itself that either:
The employee is legitimately absent due to illness
or injury or
> The employee is medically fit to return to work with
or without accommodation
>
Medical Certificate Forms:
One Size Fits All?
• Re OLG Point Edward Casino, 2011 Ont.
• Caveat: The Employer is only entitled to
access the medical information that it
reasonably requires in the circumstances
Medical Certificate Forms:
One Size Fits All?
• Re OLG Point Edward Casino, 2011 Ont.
• There is a distinction between medical
information required to assess the legitimacy
of an employee’s absence and medical
information required to confirm fitness to work
or the implementation of accommodation
Medical Certificate Forms:
One Size Fits All?
• Re OLG Point Edward Casino, 2011 Ont.
• In legitimizing an absence, the employer,
absent a clear provision in the collective
agreement, is generally not entitled to require
an employee to disclose a diagnosis or details
regarding the specific nature of an illness, its
symptoms, or the treatment undertaken
Medical Certificate Forms:
One Size Fits All?
• Re OLG Point Edward Casino, 2011 Ont.
• In confirming fitness to work or implementing
accommodation measures, the employer may
be entitled to this additional information if
there is reasonable doubt concerning the
employee’s fitness to perform the duties
assigned and if they have a “demonstrable
need” for this information
Medical Certificate Forms:
One Size Fits All?
• Re OLG Point Edward Casino, 2011 Ont.
• “One size fits all” forms may cross the line
• The arbitrator noted that although most
employees would likely appreciate providing
their information to an administrator rather
than to the employer directly, the decision of
who the employee discloses their medical
information to is the decision of the employee
ACCOMMODATION UPDATE
& PERCEIVED DISABILITIES
Presented by: Moira Aikenhead
The Duty to Accommodate
• Applies to all employers in BC
• Must accommodate
employee’s disability to the
point of undue hardship.
• Includes the duty to make
reasonable inquiries about the
employee’s limitations,
sometimes including medical
information.
Recent “Big Decisions” in Human
Rights and Accommodation Law
• Cassidy (2011, B.C. Supreme Court)
• No Separate Procedural Duty to
Accommodate
• BC Human Rights Tribunal (the “Tribunal”)
• The employer discriminated against Mr.
Cassidy by failing to treat him “fairly, and with
due respect for his dignity, throughout the
accommodation process”.
Cassidy, continued
• B.C. Supreme Court
• No separate procedural duty to accommodate
• All Tribunal should consider is whether the
employee was accommodated to the point of
undue hardship
• Treating the employee in an unfair manner
throughout the accommodation process does
not in itself amount to discrimination.
Cassidy, continued
• Always best practice to treat employees
fairly when considering accommodation.
Recent “Big Decisions”, continued
 Figliola (2011, Supreme Court of Canada)
 No Forum Shopping in Human Rights
> In the employment context, many different forums
for employment-related concerns.
• Forums include:
• B.C. Employment Standards Tribunal;
• Workers’ Compensation Review and Appeal
Divisions;
• B.C. Supreme Court;
• Internal Union Grievance Processes and Arbitrations;
• B.C. Human Rights Tribunal
Figliola, continued
• Supreme Court of Canada
>
Tribunal made an error in hearing a complaint
about issues already determined by a body “with
the authority to resolve them” (i.e. the Workers’
Compensation Board).
Recent “Big Decisions” continued
• Mowat (2011, S.C.C.)
• Federal Human Rights Tribunal May Not
Award Legal Fees
• Legal fees, or “costs”
• Supreme Court of Canada
>
Considered whether the Canadian Human Rights
Tribunal could award “costs”
Mowat, continued
• Canadian Human Rights Act, s. 53. If the
Tribunal finds the complaint is valid, it may
order the offending person:
>
“compensate the victim for any or all additional
costs of obtaining alternative goods, services,
facilities or accommodation and for any expenses
incurred by the victim as a result of the
discriminatory practice”
Mowat, continued
 Canadian Human Rights Act s. 53 does not
include the discretion to award legal fees, not
considered “expenses”.
Mowat, continued
• What about B.C.?
• B.C. Human Rights Code, section 37:
>
(2) If the member or panel determines that the
complaint is justified, the member or panel…
> (d) may order the person that contravened this
Code to…
> (ii) compensate the person discriminated
against for all, or a part the member or panel
determines, of any wages or salary lost, or
expenses incurred, by the contravention.
Mowat, continued
• Distinction – Improper Conduct.
>
B.C. Tribunal has specific discretion in the Code to
award legal fees resulting from the improper
conduct of another party.
> Failing to comply with Tribunal order;
> Filing a baseless complaint;
> Lying in the proceedings;
> Etc.
Kerr
• Final case – SCENARIO:
• What do you do?
a)
WAIT
b)
SEEK
c)
TERMINATE
Kerr, continued
• Answer = (b)
• Kerr (2011, B.C. Court of Appeal)
• Employer chose option (a), argued employee
obliged to provide objective evidence she was
able to work before it had to consider
returning her to work.
• Not the case, request for accommodation
triggers duty to inquire.
Perceived Disabilities
• Disabilities in the Human Rights context
include perceived disabilities.
• If an employee can demonstrate the
discriminatory conduct by their employer
resulted from the employer’s perception that
they were disabled, even if they are not, then
discrimination can be found.
Cases
• Cartwright, B.C. Human Rights
Tribunal, 2011.
• Employers must rely on the
medical evidence provided to
them.
• If employee and doctors say fit to
work, employer has fulfilled its
duty to inquire.
Cases, continued
• Johnson, B.C. Human Rights Tribunal,
2010.
• Unique decision, not clear any “adverse
treatment” other than hurt feelings.
• Indicates employers should not even mention
assumptions about an employee’s abilities.
• When in doubt, ASK.
Cases, continued
• Morgan-Hung, B.C. Human Rights
Tribunal Decision, 2009.
• Even if an employee has a disability,
employers should not make assumptions
about the limitations of that disability.
Morgan-Hung, continued
• Possible employee’s cognitive capacity was
declining and a reduced week would have
been a beneficial accommodation.
>
Employer discriminated by not seeking medical
information, assuming cognitive impairment and
imposing “accommodation”.
Lessons for Employers
• Do not assume an employee has restrictions
unless you have received specific information
from them that they do, preferably backed up by
medical evidence.
• Even where medical condition or disability
exists, do not make assumptions about the type
of impairment this causes.
• Best interests of employee no excuse
Lessons for Employers,
continued
• When you perceive decline in performance,
INQUIRE.
• Seek medical evidence
USE IT, DON’T ABUSE IT
Use of Company Equipment in the Age of
Technology – Presented by Ryan Berger
Use it, don’t abuse it
• Overview:
•
•
•
•
•
Management rights and obligations
Vehicles
Computers at work
Telephones
Laptops and mobile devices
Trying not to abuse it…
• Audience response system
• Questions 1 – 6
Use of Equipment
• Right of employer to manage the
workplace
• What / where is the workplace?
• Includes use of company equipment
Use of Equipment
• We have the technology – can we use it?
•
•
•
•
•
•
Manage and monitor productivity
Safety of employees
Safety and security of systems and equipment
Theft prevention
Equipment maintenance
Avoiding liability
Don’t abuse it…
privacy obligations
• Reasonable collection, use and disclosure
•
•
•
•
What is the need?
Is the use effective in meeting the need?
Is the loss of privacy proportional to the benefit?
Is there a less intrusive way?
• Are you notifying employees? (use policy)
• Investigations may be treated differently
Equipment - Vehicles
GPS and Telematics
• What information do you collect?
• How are you using the information?
• Is your use policy appropriate?
Equipment - Computers at work
• Computers record almost everything
• Over-collection is hard to avoid
• Regular monitoring without cause is probably
too invasive
Keystroke logging
> Email and internet monitoring
>
• Are there alternatives?
blocking access
> separate station / connection for break times
>
• Is your use policy appropriate?
Telephones
• Can you record telephone calls?
• What can you do with it?
• Consider:
•
•
•
•
Job duties
Is statistical information sufficient
Can you exclude personal calls?
Is your use policy appropriate?
Laptops and Mobile Devices
• Location services
• Probable over-collection of information
• Regular monitoring without cause is probably
too invasive
• Is your use policy appropriate?
Conclusion
• Are your use policies appropriate?
• Are you notifying employees?
• Are you balancing business needs and
privacy?
• Just because you can do it, does not
mean you should…
Is posting on the Intranet enough?
Policies and Training
Presented by: Herb Isherwood
Context
• Review of Practice towards Policies
• Trending – our perspective
• use of policies is up
• no. of issues is up
• complexity is up
• Proactive vs. Reactive
Context
• Expectations & Need
•
•
•
•
“Polyone”
Need to tell employees not to steal?
Phone v. email + internet policies
May be a generational
aspect to this
Context
• Duty of loyalty may not be obvious
• Need to be more prescriptive – employees
expect it
• “You ought to know better” isn’t enough
Context
• But we are also problematic seeing
implementation practices
door stops + paper weights
> adhoc and incremental
>
• There is an opportunity
to add value
Context
• disciplined + pro-active approach
• part of risk management
• assist with prevention (the primary goal)
and enforcement
• not advocating that you go rule crazy
• do advocate a planned and purposeful
approach
Reason for a Policy
a.
b.
c.
d.
e.
•
align values
enhance reputation
uniform and consistent decisions
enhance efficiency
reduce risk of liability or loss
Effective and appropriate policies are
indicative of a well run organization
>
fortifies your credibility
Why?
•
•
There are a number of reasons
Some policies may be needed for more than
one reason
1. There is or could be confusion or
misunderstanding
•
•
•
•
•
dress code
email and internet use
off-duty behaviour
confidentiality
right to lay off
Why?
2. Specific guidance is needed
•
•
•
•
•
expense reimbursement (use of company
credit card)
employee discounts
control procedures
general employee conduct
absenteeism
Why?
3. Protect against or reduce or reduce liability
•
•
•
•
•
•
•
respectful workplace/non-discrimination
conflict of interest
overtime
commission and bonus
policies
employee health
telecommute
safety
Why?
4. Comply with legal requirements
•
non-public organizations
>
>
•
public companies
>
•
Privacy
WorkSafe
code of conduct and disclosure + trading policy
there are very few policies that are legally
required
Why?
5. Establish consistent work standards & rules
•
•
•
•
progressive discipline
leaves of absence / notification of absence
work process or procedure
break rules
6. Establish consistent and fair treatment
•
benefits rules & procedures
>
•
•
sick leave
posting rules
assessment process
Why?
•
Ultimate goal – add value
>
>
•
e.g. – absenteeism or overtime
clear and objective value
value may be subjective
>
e.g. policies that align culture
>
>
code of conduct
charitable giving
Why?
•
If you can’t identify the value – do you need it?
>
>
>
>
judgment comes in here
can’t cover everything
there are no end of ways that employees can go wrong
consider:
i.
ii.
iii.
iv.
•
risk to organization
likelihood of occurrence + frequency
how many employees impacted
impact on reputation / stakeholders
need to cover what is important to the organization
Why?
• If can show value – you enhance value of HR
to the organization
if you are told “We need a policy on that”, I suggest
you test the idea against this criteria
> consider the reasons
> determine if the policy will add real value
>
Preparation
• do some thinking before you write
• what needs to be dealt with
• not just because it has happened
• be proactive – what could go wrong
– how can we improve
Preparation
•
canvass the organization
>
•
what are the unwritten rules
>
>
•
or at least a sampling
are there exceptions
do they need to be codified
what are the common frustrations
•
get ideas from the internet
>
>
>
what are the issues?
but be critical and discriminating
won’t need some policies
i.
ii.
iii.
>
visitors
working abroad
concealed weapons
some will be specific to Canada and BC
Getting Support
• need to ensure you are not climbing out on
the branch
• if support not there, will be undermined
• may need to decide what issues to fight for
Writing
• should be able to write your own
• involves a “what if” exercise
identify what might happen
> address real possibilities
>
• try to be clear
• be concise as you can
Legal Review
•
may need a legal review
>
policies with legal implication
i.
ii.
>
•
privacy
respectful workplace
does not mean legalese
policy needs to be
understood to be effective
>
but there will be wording that needs to be legally
designed
Implementation
• to enforce, you need knowledge +
understanding
• simply posting + asking employees to
review is dangerous
• Ideally all policies will be explained to each
employee
training
> mandatory attendance
>
Implementation
• if want to discipline need to show employee
knew about policy or that it was wrong
• posting on intranet – good
>
intranet helps
>
>
>
>
access
availability
but vulnerable
doesn’t establish knowledge, only availability
• require employees to know / sign off – better
>
>
helps with enforcement
but not as effective at prevention
Implementation
• Training programs are the best
require and record attendance
> good for important policies
>
• not always practical
• re-affirm annually
>
>
>
>
good for enforcement
but may not help
prevention
add a test?
form to fill out
Implementation
• new employees
same concerns
> obligate them to know and comply – good
> show them where it is on the system – good
> walk them through the policies – best
>
• part of the employment contract
obligate employees to comply
> can be part of employment contract
> but need to reserve right to change at any time
>
Interpretation / Enforcement
• be consistent
can be exceptions
> will be discretion
> but take rational approach
>
• can be a challenge
where multiple
managers enforce
> but could be fatal
>
Interpretation / Enforcement
• monitor the policy – measure results
lots of exceptions?
> groups not adhering?
> could be fatal
>
• review periodically
policies with legal implication
> privacy/respectful workplace
> drug and alcohol
>
• go to seminars/read newsletters!
L&E Issues in 140 Characters or Less
Presented By: Andrew Schafer
Issues
•
•
•
•
•
•
After Acquired Cause
Resignation
Dealing with EI Claims
Dress Code
Termination Clauses
Deducting Benefits and Pension from
Reasonable Notice
• Restrictive Covenants
• Limitation Period Update
This Presentation
•
•
•
•
Resignation
Restrictive Covenants
After Acquired Cause
Dress Codes
Resignation
• Employees who resign are not entitled to
reasonable notice
• Simple then, right?
Resignation
• WRONG
• In order to be effective, resignation must
be voluntary
• Subjective and objective component
Resignation
• Be careful of heat of the moment
resignations
Resignation
• Terminating someone during resignation
period can be done but employer will have
to pay damages
• Common law: Remainder of the notice
period
• ESA: lesser of the employee’s resignation
period and the employee’s entitlement to
severance under the Employment
Standards Act
Resignation
• Best Practices
• Confirm resignation in writing
• Allow time to pass in “heat of the moment”
cases
• Have provisions in employment contracts
limiting severance owed if employment
terminated during resignation period
• Investigate absences before assuming
employee has resigned
Restrictive Covenants
• Prevent former employees from working
for competitors, setting up their own
competing business, or attempting to
solicit business from company clients
Restrictive Covenants
• Not enforceable unless reasonable
• High standard
• Types
• Non-Compete
• Non-Solicit
• No Dealing
Restrictive Covenants
• In order to enforce, covenants must:
• Protect a legitimate business interest
• Contain a reasonable geographic scope
• Contain a reasonable temporal scope
• If not enforceable, courts will not fix
Restrictive Covenants
• If enforceable, can form the basis of an
action for damages and an injunction
• Consider what is reasonable before
drafting
• Avoid using same covenant for all
employees
After Acquired Cause
• General rule: employees entitled to notice
of termination unless there is cause
• Problem: what if you dismiss an employee
without cause but discover conduct that
would be just cause after they have left?
.
After Acquired Cause
• Can be a full defence to a wrongful
dismissal claim
After Acquired Cause
• Employer cannot have condoned behavior
• Does not include post-termination conduct
but can include pre-employment conduct
• Does not apply to ESA severance, only
common law
• Do not make in bad faith
Dress Codes
Dress Codes
• Unionized Businesses: must be
reasonable, must be known to the
employees, and must be enforced
consistently
• Non-Unionized: businesses have much
more leeway but reasonableness still a
factor upon dismissal
Dress Codes
• Considering human rights considerations
• Recent example: rule prohibiting hiking
boots in gym
Termination Clauses
• Limit reasonable notice owed upon
dismissal
Termination Clauses
• Cannot contract out of ESA minimums
• Must be clear
• Should be in employment agreement
• Consideration needed to impose new
termination provision
Dealing with EI Claims
• EI available to employees who lose their
job through no fault of their own
• Don’t qualify if terminated for misconduct
or if resign
Dealing with EI Claims
• Service Canada will investigate each case
and decide whether employee committed
misconduct
• Often decide that there is no misconduct
• Employer gets letter asking for response
• How should you respond?
Dealing with EI claims
• Little benefit to appealing an EI decision
• Respond by expressing disagreement with
original decision but will not be appealing
at this time
Limitation Periods
• Changing in BC
• Used to be six years, changing to two
years
• Changes coming into force next year
• Will impact record keeping practices
Deducting Benefit and
Pension Payments from
Wrongful Dismissal Awards
• Problem:
• Courts have allowed employers to deduct
disability payments made to employees
during reasonable notice period from
damages
• Courts have done the exact opposite with
pensions
• SCC will address this in the near future