[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

[Haley O’Halloran]

in reply to: Workplace Investigation -Learning of a medical diagnosis in Respondent interview #101661

The ASD diagnosis is a relevant mitigating factor, but it is not automatically a determinative one. Under Canadian human rights law, autism is a disability, and once an employer becomes aware of it, the employer has a duty to consider accommodation to the point of undue hardship. However, the duty to accommodate does not excuse misconduct simply because it may be connected to a disability. The key question is whether the disability affected the employee’s ability to understand the impact or wrongfulness of the conduct, to regulate their behaviour, or to comply with workplace expectations. Even if it did, the employer must still ensure a workplace free from harassment and sexual harassment.

When determining proportionate discipline, it is helpful to distinguish between culpability and risk. Factors supporting mitigation include the respondent’s documented diagnosis, remorse, admissions to three of the four allegations, willingness to cooperate, any evidence that the behaviours were influenced by ASD-related social communication deficits, a previously clean disciplinary record (if applicable), and whether accommodations might reasonably reduce the likelihood of recurrence. Factors supporting more severe discipline include the seriousness of the harassment, the impact on the complainant(s), whether the conduct was repeated or deliberate, whether there was an abuse of power, whether the respondent understood the conduct was unwelcome, and whether continued employment would undermine workplace safety or trust.

The fact that the you did not know about the diagnosis before the investigation is also significant. An employer cannot be criticized for failing to accommodate a disability it was unaware of. Your obligation arose once the disability was disclosed, and it appears you appropriately addressed accommodations during the investigation. The disciplinary decision should therefore be based on the misconduct itself, while considering the newly identified disability as one factor among many—not as a shield from accountability.

If the investigation supports that the misconduct can likely be prevented through reasonable accommodation and the respondent demonstrates insight, remorse, and a genuine commitment to change, alternatives to termination could include a lengthy unpaid suspension, a final written warning, mandatory respectful workplace and sexual harassment training, individualized coaching, accommodations informed by medical information (where appropriate), and a clear last-chance agreement stating that any further harassment will result in termination. Conversely, if the conduct was sufficiently serious, created an ongoing safety risk, or there is no reasonable basis to believe accommodation would prevent recurrence, termination may still be a proportionate response despite the ASD diagnosis.

Overall, the diagnosis should prompt a careful individualized assessment rather than an automatic reduction in discipline. The decision should be well documented, demonstrating that the employer weighed the disability, considered whether accommodation could address the behaviour going forward, and balanced those considerations against its legal obligation to provide a workplace free from harassment and sexual harassment. That approach is generally the strongest position from both an employment law and human rights perspective.

You can further navigate this matter by exploring some of these available resources:
How to Create a Mental Disability Accommodations Policy
Verifying Disability Policy
Accessibility Resources
Workplace Harassment Policy
Respectful Workplace Policy
Harassment – Know The Laws of Your Province

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Ontario Stat Severance Pay #101628

No. An employee who qualifies for statutory severance pay (5+ years of service and the employer meets the payroll or mass termination threshold) is not automatically entitled to continued health and dental benefits during the statutory severance pay period.

One important caveat —

If the employee is receiving:

-common law reasonable notice,
-salary continuance under an employment contract, or
-an enhanced severance package,
the employer may agree (or be required) to continue benefits beyond the ESA minimums. That obligation comes from the employment contract, settlement agreement, or common law—not from the ESA’s statutory severance provisions.

So, under the ESA alone, benefits continue through the statutory notice period, but not through the statutory severance pay period.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Immigration Status for CPA Program #101610

In Canada, employers should generally avoid asking applicants directly about their citizenship, permanent resident status, or immigration status unless there is a bona fide occupational requirement or a legal requirement to verify work authorization. Those questions could reveal a protected ground under human rights legislation and create a risk of a discrimination claim if not handled carefully.

Instead, focus on the essential requirements of the position. Since successful enrolment in the CPA articling program is a legitimate job requirement, you can advise candidates that enrolment in the CPA program is a condition of employment and ask whether they are able to meet that requirement. For example: “This position requires successful enrolment in the CPA Professional Education Program (PEP) in accordance with CPA requirements. Are you able to meet this requirement by the required start date?” This keeps the discussion focused on the job requirement rather than the applicant’s citizenship or immigration status.

If a candidate indicates they may be unable to meet the enrolment requirement, you can ask job-related follow-up questions, such as whether they anticipate any barriers to enrolling by the required deadline or whether they already meet CPA admission requirements. You should avoid probing into why they cannot enroll if the answer would require them to disclose protected information, such as their citizenship or immigration status.

Finally, if the inability to obtain a Provincial Attestation Letter means the individual cannot satisfy an essential requirement of the role despite being legally authorized to work in Canada, the employer can generally make hiring decisions based on the inability to meet that bona fide occupational requirement—not on the individual’s citizenship or immigration status itself. Given the evolving nature of the Provincial Attestation Letter requirements, it would also be prudent to review your recruitment process with legal counsel to ensure your screening questions remain compliant with the applicable provincial human rights legislation.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation time and vacation payout policy #101532

Your proposed approach is generally well aligned with the Ontario Employment Standards Act (ESA), particularly because it recognizes the requirement that employees receive and take at least their statutory minimum vacation entitlement. However, there are a few areas where additional clarification may help reduce compliance risk and improve transparency for employees.

First, the ESA requires that employees take their earned statutory vacation time within 10 months after the end of the vacation entitlement year. Employers cannot simply pay out statutory vacation time instead of ensuring the employee actually takes the required vacation leave, unless the employee’s employment ends or the Director of Employment Standards approves an alternative arrangement. As a result, any policy language suggesting that unused statutory vacation time will automatically be paid out in April could create compliance concerns if the employee has not actually taken the minimum vacation leave required by the ESA.

Second, the distinction between statutory vacation entitlement and any additional employer-provided vacation should be made very clear. For example, employees with three weeks of entitlement under company policy but only two weeks of ESA entitlement may have different treatment applied to the additional week. Clearly defining what constitutes “statutory vacation” versus “additional discretionary vacation” will help avoid misunderstandings and support consistent administration.

Third, the provision stating that vacation in excess of the statutory minimum may be forfeited if not taken and not approved for carry-over warrants careful review. While employers generally have more flexibility regarding vacation benefits that exceed ESA minimum standards, forfeiture provisions can be challenged if employees were not provided a reasonable opportunity to use the earned time or if the policy is not clearly communicated and consistently enforced. Many employers choose to pay out excess vacation rather than forfeit it to reduce employee relations concerns and potential disputes.

Fourth, you may wish to include language confirming that management reserves the right to schedule vacation where necessary to ensure compliance with ESA requirements. This helps protect the organization if an employee repeatedly declines to schedule vacation, as the employer remains responsible for ensuring statutory vacation is taken within the required timeframe.

Fifth, consider clarifying the approval process for carry-over requests. For example, specify when requests must be submitted, what factors will be considered when approving carry-over, and that approval is not automatic. This additional detail promotes consistency and helps employees understand their responsibilities regarding vacation planning.

Overall, the strongest compliance concern relates to the treatment of unused statutory vacation time. A safer approach would be to state that statutory vacation must be taken within the ESA-required timeframe and that any payout provisions apply only to vacation benefits that exceed ESA minimum entitlements. You may also wish to have employment counsel review the final wording to ensure it reflects both ESA requirements and any recent Ministry of Labour interpretations or decisions.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Sick Leave #101154

Your initial assessment is generally correct. In jurisdictions such as Alberta, British Columbia, New Brunswick, Nova Scotia, Ontario, and Saskatchewan, statutory sick or illness leaves are primarily job-protected leave entitlements, while your organization’s 80-hour paid sick leave policy is a separate employer-provided benefit. In practice, when an employee takes time off due to illness, the absence should typically count against both the employer-paid sick leave bank and the applicable statutory leave entitlement at the same time, provided the reason for the absence qualifies under the provincial legislation.

This means that an employee who is absent due to a qualifying illness would generally receive pay from Harbor’s 80-hour sick leave bank first, while the corresponding statutory sick leave entitlement is tracked concurrently. The statutory leave is not normally deferred until after the paid bank is exhausted. Doing so could inadvertently provide employees with a longer period of protected leave than intended by the legislation and complicate compliance tracking.

Once the employee has exhausted their 80 hours of paid sick leave, any additional absence may become unpaid. However, the employee may still be entitled to job protection if they have remaining statutory sick leave entitlement available under their province’s employment standards legislation. Depending on the circumstances, they may also qualify for other protected leaves, such as long-term illness, critical illness, or disability-related accommodations under human rights legislation.

For Workday configuration purposes, many employers establish a paid sick leave plan that runs concurrently with statutory sick leave. The system deducts hours from the paid sick bank while simultaneously recording usage against the applicable provincial statutory leave. This approach helps ensure employees receive their paid entitlement first, maintains compliance with provincial job-protection requirements, and provides accurate reporting when paid time is exhausted but protected leave rights continue.

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

[Haley O’Halloran]

in reply to: Releasing info for employee who has passed away #101090

I would not recommend waiving the proof requirement simply because a T4 has already been mailed or because the relative states they are managing the estate.

A T4 is generally issued as part of the employer’s normal statutory obligations and may be sent based on information already on file. Providing additional employment, payroll, benefits, or account records is a separate disclosure of personal information and should be treated more cautiously.

That said, a practical, risk-based approach is often appropriate. If the relative is requesting relatively limited information (for example, copies of pay statements, ROE information, or confirmation of final pay amounts), and they have already provided a death certificate and there are no concerns about competing family members or estate disputes, some employers may accept a copy of the will naming them as executor, rather than insisting on probate documents. In Ontario, probate is not always obtained immediately and may not be required in every estate.

Where the individual has provided no documentation beyond a statement that they are managing the estate, best practice would still be to request proof of authority before releasing further information. At a minimum, you could ask for:

-A copy of the death certificate or funeral director’s statement of death; and
-Documentation showing they are the executor or estate trustee (such as the relevant portion of the will, probate documents if available, or other estate documentation).

If the requester cannot provide any evidence of their authority, I would be hesitant to release additional records. The inconvenience of requesting documentation is generally outweighed by the privacy risks associated with disclosing personal information to someone who may not be legally entitled to receive it.

A practical response could be:

“Although the relative has advised they are managing the estate and has already received the deceased employee’s T4, it would still be prudent to obtain some form of documentation confirming their authority before releasing additional records. The T4’s issuance does not, by itself, verify that the individual is legally authorized to act on behalf of the estate. Depending on the circumstances, this may be as simple as a copy of the death certificate and documentation identifying them as the executor or estate trustee. Requiring at least minimal proof helps protect the employer from potential privacy complaints or disputes among family members regarding access to the deceased employee’s information.”

-HRInsider Staff

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