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in reply to: Answer for Physically Demanding Work #86898
If he’s not disabled in any way, the employee would not be entitled to accommodations and termination would not be disability discrimination.
BUT THAT’S A BIG “IF”
How do you KNOW he’s not disabled? Have you asked him? Has he undergone a medical exam? As employer, you need to make such a determination–and document that you did so–before firing an employee, especially when the grounds for termination is failure to perform the physical demands of the job. You can bet that this will be the first thing his lawyer will ask him if he seeks counsel after getting his pink slip.
Another discrimination risk is that he may be protected on a grounds other than disability, e.g., race, religion, age, sexual orientation, etc.
Bottom Line: While it looks on the surface like you can proceed with the termination, there are definitely risks that you need to address. Above all, talk to counsel. While I hope this response helps, keep in mind that it’s just a general opinion based on a limited knowledge of the facts and is in no way substitute for the advice of counsel. Hope this helps. Glenn Demby, 203 354-4532in reply to: Answer for Maternity leave #86897Absolutely yes. ESA-required maternity/parental leave counts toward service time at least for purposes of ESA rights and benefits accrual. That same basic rule applies not just in BC but every jurisdiction, although there may be minor differences from province to province. Here’s the relevant language from the BC ESA statute:
Employment deemed continuous while employee on leave or jury duty
56 (1) The services of an employee who is on leave under this Part or is attending court as a juror are deemed to be continuous for the purposes of
(a) calculating annual vacation entitlement and entitlement under sections 63 and 64, and
(b) any pension, medical or other plan beneficial to the employee.
(2) In the following circumstances, the employer must continue to make payments to a pension, medical or other plan beneficial to an employee as though the employee were not on leave or attending court as a juror:
(a) if the employer pays the total cost of the plan;
(b) if both the employer and the employee pay the cost of the plan and the employee chooses to continue to pay his or her share of the cost.
(3) The employee is entitled to all increases in wages and benefits the employee would have been entitled to had the leave not been taken or the attendance as a juror not been required.
(4) Subsection (1) does not apply if the employee has, without the employer’s consent, taken a longer leave than is allowed under this Part.
(5) Subsection (2) does not apply to an employee on leave under section 52.2.in reply to: Answer for Personal Emergency Leave #86896We cover changes to PEL in our broader analysis of Bill 148. (There’s a big chart summarizing the changes.) But here’s a quick overview:
PEL existed before (under Section 50 of the Ontario Employment Standards Act); but Bill 148 changes Sec. 50 to make PEL more generous for employees. 3 changes:- BEFORE: PEL was required at workplaces with 50 or more employees; BILL 148: Now PEL is required at ALL workplaces
- BEFORE: Employees had 10 days of PEL; BILL 148: Employees still have 10 days but now at least 2 of them MUST BE PAID
- BEFORE: Employers could require employees to provide a doctor’s note certifying need for PEL; BILL 148: Employers can still demand evidence of need for PEL but CAN’T insist on a doctor’s note
All of the previous PEL rules remain unchanged, e.g., with regard to
- What injuries, illnesses and personal emergencies justify employee’s taking PEL
- Employee obligations to notify employers when they take PEL
- PELs taken on public holidays, ETC.
in reply to: Answer for Compensation Value of a Company Vehicle #86895From Glenn: Alas, this Q calls for an expertise that I don’t possess. So I have called in the heavy artillery–our resident expert, Alan McEwen
From Alan: There isn’t a flat dollar amount that can be given for the taxable benefit associated with the provision of a car to an employee. Instead there are formulas, given in this guide, https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/rc18.html, that must be used. The factors in the formula that affect the result are based on:- The value of the car, whether the purchase price or monthly lease cost;
- The portion of the year the car is available to the employee;
- The ratio of business to personal use;
- Whether the employer has paid operating costs in addition to providing the car itself; and
- Whether the employee has repaid any portion of the benefit received.
Let me know if I can be of further help,
Alan McEwen & Associates
855 Berwick Road South, Qualicum Beach, BC V9K 1S7
250-228-5280in reply to: Answer for Child Death Leave #86894You can also call me directly if you need an immediate answer. Glenn Demby, 203 354-4532.
I’m not an expert in collections laws but I think you’re handling it right. Just pass along the call and try to stay out of it. (I’d also be curious to know by what right the creditor is contacting the debtor’s employee but I’ll let the collection agency’s lawyers worry about that.) Now if the creditor gets a garnishment order against the employee, you’ll need to take immediate action. HRI has a lot of good stuff on how to respond to garnishments when and if you have to cross that bridge.
Glenn, 203 354-4532in reply to: Answer for Child Death Leave #86892Depends on which jurisdiction’s ESA laws applies. Where are you located–or is your organization federally-regulated?
There is NO medical leave under the current Alberta ESC. But once Bill 17 takes effect on Jan. 1, employees will get 16 weeks’ unpaid long-term illness and injury leave. And you’re right, once leave ends, return to work will be governed by Alberta Human Rights Act. Because the injury/illness is likely to constitute a “disability,” you must make accommodations to the point of undue hardship.
Your point about holding open the position until it becomes clear that the employee isn’t getting better and won’t be able to return is basically right. The hard part will be how and when you can make that determination. The accommodations process requires you to get an assessment of the employee’s capabilities and needs from his/her physician. You can ask for a PROGNOSIS but not a DIAGNOSIS. The employee also has to cooperate and furnish the medical info you need to make the assessment–employee failure to cooperate in the accommodations process is generally considered legitimate grounds for termination.
If the initial medical assessment doesn’t give a definitive and reasonable return date, you may need to keep the position open pending a later assessment. Although you don’t have to wait forever, the Q of how long is too long, unfortunately, varies from case to case.
The other key issue in determining reasonable accomm v. undue hardship will be the job-related accommodations the employee needs, e.g., with regard to work schedule, work duties, location, etc.
Bottom Line: Bill 17 doesn’t change the accommodations rules with which you’re apparently familiar; all it does is create a new set of leaves (including but not limited long-term illness and injury) to which those accommodations requirements apply.
Hope that helps and Merry Xmas. Glenn 203 354-4532in reply to: Answer for Bill 148 Vacation #86890NOTICE: THIS IS A REVISED ANSWER TO ONE I POSTED ABOUT 2 HOURS AGO: IF YOU READ THE PREVIOUS ANSWER (which I have since deleted), DO NOT RELY ON IT AS I BELIEVE IT WAS INCORRECT. USE THE ANSWER THAT APPEARS BELOW INSTEAD:
My answer would be that an employer must provide a minimum of 3 weeks of vacation time to an employee who hits the 5-year service mark, under the new section 33(1)(b). This is a minimum requirement that can’t be waived under the Act, even if the employee agrees, see section 5(1).
As far as vacation pay goes, if an employee agrees to “sell” back the extra 2% difference between 2 and 3 weeks of vacation, that would have to be treated as “vacation pay” to remain compliant with the new amendments. In other words, the minimum 6% would have to be paid, or the same amount paid as 4% vacation pay and then 2% “sold” back to the company. In these circumstances, what would the point be of “selling” back the 2%?
Alan McEwen & Associates PO Box 144 Station Main Qualicum Beach, BC V9K 1S7 250-228-5280 (Pacific time)
Thx for the Q and Merry Xmas
Glenn 203 354-4532in reply to: Answer for How To Use Ask The Expert #86889As an HR Insider member, you have access to thousands of members across Canada – all of whom have dealt with similar issues and problems that you face on a daily basis. Part of the real value of HR Insider is not only giving you REAL SOLUTIONS and best practices from our circle of experts and editors, but also putting you within arms length of a community of similar minded people.
Ask the Expert is a question answer channel. Use the form to post a question and get answers from not only us and our experts, but also members of HR Insider community. Find out what other members are doing. Give your opinion and advice to another member’s issue.
Get started now, Ask an Expert!
Any questions about using Ask the Expert? Post them below! And please include your jurisdiction because the answer may depend on it!in reply to: Answer for Termination for Excessive Absenteeism #86888It depends. The rules are complicated but let”s see if I can simplify them for you.
Step 1: Determine If the Absence Is “Culpable”
Culpable absences include things like deliberately missing work when there”s nothing physically or mentally wrong. Such absences are subject to discipline like any other form of misconduct.
But if the absence is non–culpable, e.g., absences due to illness or injury, discipline is much trickier.
2. If Absence Is Non-Culpable, Does It Frustrate the Employee”s Contract?
There are situations when it is appropriate to impose discipline for non–culpable absences. One of these is when you can prove that the absence “frustrated” the employee”s contract and made it impossible to do the job you hired her to do.
Proving frustration of contract is hard. To find out what you must do to prove frustration, click this link. https://hrinsider.ca/homepage/absenteeism-does-employee%E2%80%99s-illness-%E2%80%9Cfrustrate%E2%80%9D-her-contract
3. Does Discipline Constitute Disability Discrimination?
Because the injuries and illnesses that cause employees to miss a lot of work are often considered “disabilities” under human rights laws, discipline for absenteeism may be considered a form of discrimination. In such cases, liability typically turns on whether the employer made reasonable accommodations for the employee or, conversely, whether putting up with the employee’s continued absences constitutes undue hardship.
Click this link to find out how to determine when long non-culpable absences reach the point of undue hardship. https://hrinsider.ca/homepage/absenteeism-when-do-long-absences-become-unacceptable-part-1
I can’t give you legal advice or tell you what to do next. But what I can do is walk you through the analysis you should conduct to make that decision yourself.
1. Is Social Networking Grounds for Employee Discipline? YES []; NO [ ]
Good news: You pass the first test. Although employment law has a long way to go to catch up with social networking, early cases have made it 100% clear that employers can, in fact, discipline employees for posting harmful things about the company, clients or employees on social network sites. Stated differently, social networks are not an employee’s private domain, even if employees post after or away from work.
2. Did the Employee’s Postings Harm Your Company? YES [ ]; NO [ ]
To constitute grounds for discipline, you must demonstrate that the employee’s postings hurt the company or its reputation. It’s not immediately clear in this case whether criticising a sister school crossed the line. To make that determination, you must consider factors like:
What exactly the employee said;
– The tone in which she said it;
– The exact relationship between you and the sister school targeted for criticism—how in other words, the criticism harmed your own company; and
– The employee’s position at the company—criticism is much more harmful if the employee is responsible for public relations or occupies a high position. (Example: Nunavut Tourism was justified to fire “Polar Penny,” a marketing employee, for posting critical blogs about the city she was hired to promote.)3. Did the Employee’s Postings Constitute Insolence? YES [ ]; NO [ ]
Another theory you may be able to use to justify discipline is that the employee’s postings constituted insolence or insubordination. The basic test for insolence is whether the employee’s conduct is disrespectful and undermines the ability of management to direct the workforce. Again, I don’t have enough information to judge if the employee’s criticism of the sister school crossed the line—although her refusal to take the post down after being warned would probably constitute evidence of insolence.
4. Do You Have a Social Networking Policy? YES [ ]; NO [ ]
Your legal case will be much stronger if your company has implemented a written social networking/internet use policy that bans employees from criticizing the company, or in this case, its sister schools on Facebook, blogs, etc., and provides that violations can result in discipline.
5. Do You Have a Progressive Discipline Procedure? YES [ ]; NO [ ]
Answering YES to all of the above questions means you likely do have grounds for discipline. At that point, it becomes a matter of how you discipline the employee. The first step is to make sure you have a progressive discipline policy or procedure at your company and use it consistently to enforce your social networking and other HR policies.
6. Are You Following Your Progressive Discipline Procedure? YES [ ]; NO [ ]
As long as there is, in fact, a progressive discipline procedure in place, deciding what to do next should be pretty straightforward: Simply follow the procedure. It sounds like the employee has already received a warning. Accordingly, check your procedure to determine the appropriate penalty for employees who commit offences after a warning.
7. Are You Documenting Your Actions? YES [ ]; NO [ ]
Last but not least, be sure to make a written record documenting the disciplinary actions you take and how you decided to take them in case you get challenged in a grievance hearing or lawsuit.
*****
Good luck and I hope the above analysis helps you deal with your situation.Administrator
It is tough to say exactly how much more to give, because it depends on their current compensation and the economic landscape. Given the employees age, they may opt for early retirement with a rich enough buy-out.
You need to look at your business and see what is fair for you to offer. I can advise you that it is very likely the employee will pursue some type of action if you only offer the minimum – and it is very likely that the employee will win the action given the circumstances you have described.
Ask yourself, how much are you comfortable paying and treat it as a negotiation to get to that point.
Administrator
Anita Lau
Thanks for the advices. They are very useful.
The employee in question is now around 63-65 years old, and I doubt he will prepare to find another job in the same industry, if after lay-off.
The new department of the company will focus more on use of new social media, e.g. facebook, websites, wechat, cell phone, etc. to develop our products. The employee in question should not have enough knowledge with the new technology.
My question is: Will the termination with no cause and lay-off be treated the same ? We have sufficient background documents (e.g. business strategy and proposal) for valid reason of re-structure and not special pin-point the employee in question,
If we agree to pay the employee in question more than minimum required by the law, that is, 11 weeks, then how much more we should pay, so as to avoid possible litigation ? Given he has worked in the company for 22 years
Administrator
This is more a question about this employees ability to find comparable work than the minimum required termination/lay-off notice/pay. The courts will look at how easy it was for the Manager in question to find comparable work at comparable pay when determining if the compensation was adequate.
I assume that the Manager in question, given his/her 20 year tenure, is at least in his/her 40s. Does the Manager have up-to-date skills in the new hiring environment? Do they have degrees and experience that make them an attractive hire, or are their skills very niche to your industry, or your company? Usually when an employee has been with a single company for so long, there skills are not as transferable as you would think. Lastly, how competitive is your Industry? Could they go to your competitor and get a job, or do you have a non-compete.
The long and the short of it is that you are going to have to pay more than the minimum if you want to avoid a future nightmare… it will happen.
You can look at structuring your compensation as a combination of pay and working notice to lessen the direct financial burden. You can also look at offering retraining or other services to lessen the time to find comparable employment.
You should also add a rider to your letter that states that when comparable employment is found, working notice/termination payments stop if you structure it with ongoing payments. You don’t want the employee to double dip.
I understand the complexity of the situation you are in, but without knowing the specifics of their job, we have to offer advice in the worst possible scenario – and with that perspective, the courts will and have always sided with a long tenured employee that is older than the median hiring age when deciding on whether the minimum termination pay was adequate.
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