[Haley O’Halloran]

in reply to: Meetings Policy #108374

Hi Susie! We have a virtual meetings code of conduct and a social functions policy. For your organization or goal, what a meeting is and when it should be held is totally up to you and your HR team! Meetings can vary in time from 15 minute check-ins to 3 hour quarterly analyses. Many companies like to use Microsoft or Google systems to utilize company calendars where you can see when employees are available for meetings, send out invites, and plan events. Use your discretion, discernment, and team to decide what works best for your company’s day-to-day.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Overtime Legislation Rules #108314

In both BC and Alberta, working in an accounting firm or performing accounting duties does not automatically make an employee exempt from overtime requirements. The exemption is tied more closely to professional status. In BC, the exemption applies to members of CPABC and individuals formally enrolled as students under the Chartered Professional Accountants Act. A university student completing an accounting co-op or summer internship would not generally meet that definition simply because they are studying accounting or working in public practice.

Accordingly, a BC co-op or summer student who is still completing their undergraduate degree and has not formally entered the CPA professional pathway should generally be treated as covered by the Employment Standards Act and eligible for statutory overtime. Once the individual is formally enrolled as a CPA student under the applicable legislation, there is a much stronger basis for applying the professional exemption. This aligns closely with the historical approach of distinguishing undergraduate co-op students from employees who have begun their CPA training.

In Alberta, the legislation and guidance refer to certified or chartered accountants as being exempt from overtime requirements, but they do not clearly extend that exemption to ordinary undergraduate accounting students. For that reason, the safer approach is also to treat co-op and summer students as overtime eligible unless there is a clear basis for concluding that their professional registration or CPA candidate status brings them within the exemption.

From a policy perspective, I would recommend against applying a blanket 1:1 overtime arrangement to all accounting students or junior accounting staff. For non-exempt employees, once the applicable statutory overtime threshold is reached, the firm generally cannot replace the statutory overtime entitlement with straight-time pay or 1:1 time off. A more defensible policy would make overtime eligibility dependent on each employee’s professional registration status rather than their job title, department, or the fact that they work in public accounting.

Let me know if you have any other questions!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Averaging System (On- call) #108310

If August 3 is simply an employer-provided paid day off and is not one of Ontario’s nine ESA public holidays, the ESA public-holiday premium-pay/substitute-day rules would generally not apply just because you chose to treat the day like a holiday; an employee who is on call and actually works would normally be paid according to your regular wage/on-call rules, and those hours would count toward overtime in the usual way, including under a valid overtime-averaging arrangement. By contrast, if the day is being provided as a substitute day for an actual ESA public holiday, then the public-holiday rules do apply. Ontario’s ESA specifically ties premium pay and substitute-day entitlements to statutory public holidays, and hours paid at public-holiday premium rates are excluded from the overtime calculation, whereas hours worked at regular pay with a substitute holiday are counted toward overtime.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Terminate after employee does not accept layoff #108298

Based on the circumstances described, proceeding with a without-cause termination, paying the employee their minimum entitlements under Ontario’s Employment Standards Act, 2000 (ESA), and amending the Record of Employment to reflect the termination is a reasonable step. The ESA payment should be provided unconditionally and should include all required termination pay, vacation pay and benefits continuation for the statutory notice period. Any amount offered beyond the ESA minimum in exchange for a release should remain clearly separate from these statutory entitlements.

It is important to recognize, however, that paying the ESA minimum does not necessarily eliminate the employee’s potential constructive or wrongful dismissal claim. Because the original employment agreement apparently did not contain a temporary layoff provision and the employee has expressly reserved their right to pursue constructive dismissal, there may still be potential common-law notice exposure. The earlier offer of four weeks does not limit that exposure unless the employee signs a valid release.

The employer should also ensure that the termination documentation and amended ROE accurately reflect the sequence of events. Care should be taken not to suggest that the employer is admitting the temporary layoff amounted to constructive dismissal or that the termination is occurring because the employee objected to the layoff. The termination should instead be documented as a without-cause decision, with a clear and consistent effective date.

All relevant records should be retained, including the employment agreement, communications regarding the loss of customer work, the temporary layoff notice, the employee’s objection, the settlement offer and deadline extension, payroll calculations, benefits information, the original and amended ROEs, and the final termination communication. The employer should also confirm that there are no other statutory issues that could affect the termination, such as mass termination requirements, protected leaves, accommodation obligations or potential reprisal concerns.

Given that this situation involves a disputed temporary layoff, a potential constructive dismissal claim and possible common-law notice obligations, it requires more individualized legal analysis than can appropriately be provided through a general question-and-answer forum. I recommend that the employer refer this matter to qualified Ontario employment legal counsel for review of the employment agreement, termination date, potential liability and final termination documentation, and direct any further questions on this specific matter to legal counsel.

I hope this helps and wish you well!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Performance Issues #108283

In Ontario, ADHD can fall within the disability protections of the Ontario Human Rights Code, so the employer should treat the disclosure as triggering a duty to inquire into and explore accommodation. That does not mean that legitimate performance expectations must be abandoned. The Ontario Human Rights Commission (OHRC) recognizes that employees with disabilities are expected to meet agreed-upon performance standards once appropriate accommodation is provided. Before escalating performance consequences, however, the employer should make reasonable efforts to determine whether the missed deadlines, attendance issues, or other performance concerns are disability-related and whether accommodation could enable the employee to meet the essential requirements of the position.

At this stage, I would recommend continuing the accommodation process and performance-management process in parallel, rather than waiting indefinitely for medical documentation. Meet with the employee and explain that there are specific, ongoing performance concerns—using objective examples such as missed reports, deadlines, and deliverables—and that the goal is to help them succeed. Because ADHD has been disclosed, ask whether any of these difficulties are connected to disability-related limitations and what workplace supports may help. You can follow up on the medical documentation, but frame the request around functional limitations, restrictions, ability to perform essential duties, and accommodation needs, rather than asking the physician for detailed diagnostic information. The OHRC also says employers should actively investigate possible solutions and, where appropriate, consider interim accommodation based on the information available rather than simply waiting for a medical assessment.

A collaborative PIP can therefore be appropriate, provided it is clearly about the employee’s job requirements rather than their ADHD. Identify the essential deliverables, reasonable deadlines and measurable standards; ask the employee what barriers are contributing to the gaps; and jointly consider supports such as clearer written priorities, intermediate milestones, scheduled check-ins, deadline reminders, workload organization, or other measures appropriate to the employee’s actual limitations. Document both sides of the process: the performance concerns and expectations, as well as the employer’s accommodation inquiries, proposed measures, employee responses, and follow-ups. The employee also has responsibilities in this process, including providing reasonably necessary information about restrictions or limitations, participating in discussions and cooperating with efforts to identify accommodation. If necessary information is repeatedly requested and the employee does not cooperate, that can eventually affect the extent of the employer’s accommodation obligation—but I would document several clear attempts before reaching that conclusion.

Finally, keep medical/accommodation information separate from ordinary performance documentation wherever practical and tightly restrict access. A manager generally needs to know what accommodation is being provided and what expectations apply, not the employee’s medical details. The OHRC specifically recommends that medical information be kept confidential and, where possible, separately from the personnel file, with HR communicating functional restrictions to supervisors rather than diagnostic details. Given the intersection of disability accommodation and potential discipline here, Ontario employment/human-rights counsel should review the PIP and accommodation correspondence before the organization moves toward significant discipline or termination.

I hope this helps.
-HRInsider Staff

[Haley O’Halloran]

in reply to: Medical Documentation to Support LOA #108282

You are correct that there is a balance between an employer’s duty to accommodate under human rights legislation and an employee’s corresponding duty to participate in the accommodation process. Where an employee is absent for medical reasons, the employer is generally entitled to request reasonable information necessary to understand whether the absence is medically supported, the employee’s functional limitations or restrictions, and, where possible, the anticipated duration of the absence or a timeframe for reassessment. The employee would not ordinarily be required to disclose a specific diagnosis unless there are exceptional circumstances that make that information reasonably necessary.

Given that more than two months have passed and several reasonable deadlines have apparently been missed, the next step would typically be to provide the employee with a clear written request outlining exactly what information is still required, a final reasonable deadline for providing it, and the consequences if the information is not received. The communication should acknowledge that there may be legitimate reasons for delays in obtaining medical documentation and invite the employee to advise you promptly if they are experiencing difficulty meeting the deadline. It is also important to document the requests, deadlines, responses, and any explanations provided by the employee, as this demonstrates the employer’s continued efforts to obtain the information necessary to assess and support the leave.

If the employee continues to communicate but does not provide the required information or a reasonable explanation for being unable to obtain it, you may eventually be in a position to advise that you cannot continue to substantiate or administer the absence as a medically supported leave without appropriate documentation. However, I would exercise caution before moving directly to discipline or termination, particularly if a disability may be involved. The applicable employment standards and human rights requirements should be reviewed for your province, and given the length of the absence and repeated non-compliance, obtaining legal advice before taking a step that could affect the employee’s employment would be prudent. The absence of a formal medical-leave policy does not necessarily prevent you from requesting reasonable supporting information, but implementing a consistent written policy going forward would help establish expectations and ensure similar situations are handled consistently.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Organizations responsibility to investigate potential harassment concerns #108276

An employer’s duty to address workplace harassment does not depend on whether an employee chooses to file a formal complaint. Under Ontario’s Occupational Health and Safety Act (OHSA), once an employer becomes aware—or ought reasonably to be aware—of potential workplace harassment, it has a legal obligation to take appropriate steps to assess and respond to the situation.

In this scenario, the employer has been informed that an employee experienced unwanted touching and comments from a coworker and that other female employees may have had similar experiences. Even though the employee later indicated that she did not want to pursue the matter, these allegations are serious enough that the employer should not simply ignore them. An employer that fails to act after becoming aware of potential harassment could face legal and regulatory consequences if similar incidents occur in the future.

A formal complaint from the affected employee is not required for an employer to investigate. The employer should assess the information available, consider the seriousness of the allegations and whether there may be an ongoing risk to others, and determine whether a workplace harassment investigation or preliminary fact-finding process is appropriate. If the employee chooses not to participate, the employer should respect that decision as much as possible while explaining its obligation to maintain a safe workplace.

The supervisor should document what was disclosed, report the concern to HR or the individual responsible for workplace harassment matters, and avoid promising complete confidentiality, as an investigation may be necessary. Depending on the circumstances, the employer may also need to implement interim measures to protect employees while the matter is being assessed.

Check out our harassment investigation policy and workplace harassment investigation checklist.

-HRInsider Staff

[Haley O’Halloran]

in reply to: work remote request #108264

While there is no legal requirement to wait until an employee has resigned before discussing a potential independent contractor arrangement, it is generally a prudent risk management practice to keep the employment decision separate from any future contracting opportunity. If a contract role is offered at the same time the employee is advised that their remote work request has been denied, it may create the impression that the employee was encouraged or pressured to leave employment in exchange for continued work.

Separating these decisions helps demonstrate that the remote work request was assessed solely on the organization’s operational needs and Remote Work Policy, and that any decision regarding the employee’s continued employment was made independently of a potential contractor relationship. It also reduces the risk of allegations that the resignation was not truly voluntary, that the employer was attempting to avoid its obligations under employment standards legislation, or that the contractor arrangement was simply a continuation of the employment relationship.

Once the employment relationship has ended, the organization can assess whether there is a legitimate business need to engage the individual as an independent contractor for specific projects or deliverables. Treating the contractor engagement as a separate business decision helps support a clear distinction between employment and independent contracting, reduces worker classification risk, and demonstrates consistent application of the organization’s employment, procurement, and contractor engagement policies.

[Haley O’Halloran]

in reply to: work remote request #108261

The employee’s request for a permanent remote work arrangement should be assessed and communicated based solely on your organization’s operational needs and Remote Work Policy. If the request cannot be approved, clearly explain that the position requires work to be performed from the approved work location and that the existing terms and conditions of employment remain unchanged.

If the employee chooses to relocate and is therefore unable to continue working under those existing terms, ask them to confirm whether they intend to continue their employment as currently structured. If they are unable or unwilling to do so because of the move, the employment relationship would end through the appropriate process, such as a voluntary resignation. If they instead begin working remotely without authorization, this should be addressed through your normal performance and disciplinary processes rather than being accepted by default.

Once the employment relationship has ended, you may discuss the possibility of engaging the individual as an independent contractor for specific projects, events, or deliverables. This contractor arrangement should be clearly separate from their employment and structured as a genuine independent contractor relationship, with project-based work, defined deliverables, and appropriate contractual terms. Separating the employment decision from any future contracting opportunity helps reduce legal risk and supports compliance with your organization’s policies and applicable employment laws.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Averaging System (On- call) #108258

Where an employee works on a public holiday and receives regular wages for the hours worked together with a substitute day off with public holiday pay, the hours worked would generally continue to be treated as hours worked for the purposes of an overtime averaging arrangement. If the employee instead receives public holiday pay plus premium pay for the hours worked, those premium-paid hours are excluded from overtime calculations under the ESA.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Averaging System (On- call) #108255

Based on the approach you’ve described, it is helpful to distinguish between the employee’s statutory holiday entitlement under the Employment Standards Act (ESA) and the additional earned-time recognition provided through your averaging system. Assuming eligible employees receive their paid statutory holiday in accordance with the ESA, there would generally be no requirement to provide an additional day off in lieu simply because they were scheduled to be on call, provided they did not actually work on the holiday. The enhanced 0.75-day on-call credit would be an employer-provided recognition benefit acknowledging the added inconvenience of remaining available on a statutory holiday, rather than a statutory entitlement.

For purposes of your averaging model, it would be reasonable to continue entering the employee’s regular 7-hour statutory holiday credit to reflect the paid holiday, regardless of whether they perform additional work that day. If the employee travels for work or performs work on the statutory holiday, those hours could then be tracked separately as irregular or additional work under the averaging system, consistent with how you are accounting for other work performed outside the normal schedule. This approach maintains a clear distinction between the paid statutory holiday itself, which is a separate employment standards entitlement, and the additional work or availability that your averaging system is designed to recognize. As always, if employees actually work on a statutory holiday, you should also ensure the applicable ESA requirements regarding public holiday work—including entitlement to premium pay and/or a substitute holiday where applicable or any exemptions that may apply—are satisfied independently of your internal averaging policy.

[Haley O’Halloran]

in reply to: Can we Terminate for Cause #108227

The short answer is that, on its own, this is unlikely to be enough to justify a termination for cause.

Whether an employee can engage in outside employment while on a stress leave depends on the specific circumstances. In some cases, working elsewhere during a medical leave may be consistent with the employee’s medical restrictions. However, if the outside work is inconsistent with the reason for the leave, or if the employee misrepresented their ability to work, it may raise legitimate concerns and warrant further investigation.

In this situation, several additional facts would need to be considered before determining whether discipline—or termination—is appropriate. For example:

-What were the employee’s medical restrictions while on leave?
-Was the mobile mechanic work similar in nature and physical demands to their regular duties?
-Did the employee have approval or disclose the outside employment, if required under company policy?
-Was there any conflict of interest, competition with your business, or misuse of confidential information or company resources?
-Is there evidence that the employee was capable of performing their regular job while claiming to be unable to work?

In most cases, an employer should conduct a thorough investigation before making any disciplinary decision. If the evidence demonstrates dishonesty, fraud, or a significant breach of the employment relationship, termination for cause may be considered. However, the legal threshold for just cause is high, and employers should proceed cautiously.

I hope this helps, let me know if you have any more questions.
-HRInsider Staff

[Haley O’Halloran]

in reply to: Averaging System (On- call) #108221

The most defensible approach under Ontario employment standards principles is to distinguish between being on call and actually performing work while on call. Since the purpose of your averaging system is to recognize irregular work and earned time rather than to track every scheduled hour worked by salaried employees, a fixed credit for carrying the on-call phone can reasonably be treated as a recognition benefit that acknowledges the inconvenience and restrictions associated with being available to respond.

Maintaining a fixed weekly on-call credit, such as the current 3.5-hour credit, is generally supportable provided it is clearly characterized as recognition for availability rather than a measure of hours worked. Employees are required to remain reachable, monitor the phone, and be prepared to respond within the required timeframe, even if no calls are ultimately received. This recognizes the burden of being on call without treating the entire on-call period as working time.
However, where employees actually perform work outside their regular schedule while on call, it is advisable to separately track and credit that time in addition to the fixed recognition credit. This better reflects the purpose of the averaging system and avoids situations where an employee who receives no calls receives the same credit as an employee who spends several hours responding to incidents or troubleshooting after hours.

With respect to statutory holidays, there is generally a reasonable basis for providing additional recognition when an employee is required to remain available during a holiday, even if no calls are received. The requirement to stay reachable and potentially interrupt personal or family plans can be viewed as a greater inconvenience than being on call during a regular workweek. As a result, an enhanced recognition credit, such as the current 5.25-hour credit, can be justified as acknowledging that additional burden rather than compensating for hours worked.
Overall, the most defensible model is one that combines a fixed recognition credit for the on-call assignment, an additional recognition credit where a statutory holiday falls within the rotation, and separate tracking of any actual work performed while on call. This clearly distinguishes availability from working time, aligns with the intent of the averaging system, and provides a fair and transparent method for recognizing both the obligation to remain available and any work that is actually performed.

-HRInsider staff

[Haley O’Halloran]

in reply to: Eligibility for BC ESA Statutory Leaves, i.e. pregnancy, compassionate care, etc #108185

Under the British Columbia Employment Standards Act (ESA), employees do not have to complete a probationary period before becoming eligible for most statutory leaves. Probation is an employer policy or contractual term and is not an eligibility requirement under the ESA.

Similarly, employees do not have to be permanent or regular employees to qualify for statutory leaves. Fixed-term, temporary, casual, and part-time employees are generally entitled to the same statutory leaves as permanent employees, provided they remain employed when the leave begins and meet any leave-specific requirements.

For most statutory leaves—including pregnancy, parental, bereavement, family responsibility, compassionate care, domestic or sexual violence, jury duty, and reservists’ leave—there is no minimum length of service required. Eligibility is based primarily on the employee meeting the circumstances that give rise to the leave rather than how long they have been employed.

The main exceptions are certain illness-related leaves, which require employees to have completed 90 consecutive days of employment before becoming eligible. Overall, unless a specific leave includes a service requirement, statutory leave entitlements under the BC ESA apply regardless of probationary status or whether the employee is employed on a permanent or fixed-term basis.

-HRInsider staff

[Haley O’Halloran]

in reply to: BC ESA Serious Illness or Injury Leave #101874

Although the employee has exhausted their job-protected leave under the applicable employment standards legislation, that does not necessarily end your obligations. If the employee’s injuries amount to a disability under human rights legislation, the employer continues to have a duty to accommodate to the point of undue hardship. The focus should therefore shift from statutory leave entitlements to the accommodation process. It is appropriate to maintain regular communication with the employee while requesting reasonable medical information needed to determine their fitness to return to work or whether additional leave remains medically necessary.

In this situation, the employee has already provided a Functional Ability Form clearing them to return to work but has since advised that ICBC has recommended additional medical clearance from their sports medicine physician. As a best practice, I would allow a reasonable amount of time for the employee to obtain this documentation before making any employment decisions. You may wish to confirm in writing that the employee remains on a medical leave pending receipt of the updated information and provide a reasonable deadline for submitting the documentation. If delays continue, maintain communication with the employee to understand the reason and determine whether additional time is warranted.
The anticipated surgery should be treated as a separate accommodation issue rather than as a question of whether the employee has remaining statutory leave available.

If the surgery and recovery period are medically supported, the employer should assess whether an additional unpaid medical leave is a reasonable accommodation. The absence of employer-sponsored LTD benefits does not affect the duty to accommodate, although it may impact the employee’s income replacement options. The key is to base decisions on current medical information rather than assumptions about the employee’s future ability to work.

Overall, your approach should be to continue engaging in the accommodation process, request only the medical information reasonably necessary to assess fitness for work and any restrictions, and document all communications. Provided the employee is actively cooperating and making reasonable efforts to obtain the requested medical information, granting additional time is generally the most defensible course of action. If, at some point, the employee stops communicating or is unable to provide sufficient medical information after reasonable opportunities have been given, you would then be in a better position to assess what further steps, if any, may be appropriate.

-HRInsider Staff

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