[Haley O’Halloran]

in reply to: Stat Schedule #97537

Employees must receive at least the minimum statutory entitlements of the province in which they work—no exceptions.
Even if you informally follow a different province’s holiday schedule, you cannot contract out of Employment Standards.

So yes — Manitoba employees must follow Manitoba requirements for Remembrance Day, regardless of what Ontario does.

Part 1: Why Remembrance Day is Causing Issues
Ontario

-Not a statutory holiday.
-Businesses may close or stay open freely.

Manitoba

-Not a general statutory holiday, but it is a “Restricted Holiday.”
-Retail businesses have specific rules, but all employees who work must receive 1.5× regular pay.
-The day cannot be substituted for another day off.

This means:
If your Manitoba employees work on Nov 11, you must pay 1.5×.
If they don’t work, you are not required to pay them (unless your internal policy grants the day as paid).

Can MB staff simply follow the Ontario stat schedule?

Yes and no.

You can offer additional paid holidays, beyond Manitoba’s minimums.

Example:

Give Boxing Day as a paid holiday even though MB doesn’t require it.

This is legal and common.

You cannot use the Ontario schedule to remove or override any Manitoba minimum entitlement.

Example:

You cannot avoid the 1.5× pay requirement on Nov 11 by saying “we follow Ontario holidays.”

How to handle Remembrance Day if you don’t want to pay 1.5×

You have two legal options:

Option A — Do not schedule MB staff on Nov 11

If they don’t work, you owe no premium pay.

They can either have:

-Unpaid day off (minimum standard), or
-Paid day off (your choice as an enhanced benefit).

Option B — Keep operations open but pay the 1.5× premium

-Must pay 1.5× for all hours worked.
-The day cannot be substituted.

Should the day off apply only to MB staff or to all staff?

This depends on consistency, equity, and operations.

Acceptable:

-Give only MB staff Nov 11 off (paid or unpaid), since it’s a provincial requirement.
-Make Nov 11 a company-wide paid day of observance.

Many national Canadian employers choose the second option to avoid confusion.

Pros of company-wide:

-Avoids perception of unequal benefits
-Simplifies communication
-Aligns values & culture around remembrance

How to Align the Holiday Schedule Across Both Provinces

You have two realistic models:

Model A — “Core Holiday Schedule + Local Add-Ons” (Most common for multi-province employers)
Core Company Holidays (apply to ALL staff)

Ex:

-New Year’s Day
-Family Day
-Good Friday
-Canada Day
-Labour Day
-Thanksgiving
-Christmas Day
-Boxing Day
-(Optional) National Day for Truth and Reconciliation
-(Optional) Remembrance Day – paid day of observance

Local Add-Ons

-Manitoba Day (if relevant)
-Ontario Civic Holiday

This maintains fairness while respecting provincial minimums.

Model B — “Provincial Stat Minimums + Extra Company Holidays”

You formally state:

“All employees receive the statutory holidays required by their province of employment, plus the following company-wide paid holidays…”

For example:

-Add Boxing Day as a universal paid holiday (solves your current desire)
-Choose whether to add Remembrance Day as a company-wide paid holiday

This model keeps compliance simple and avoids accidentally breaching ESA rules.

Recommendations Based on Your Situation
Create a formal written policy (your current informal practice creates risk)

Include:
-Provincial compliance obligation
-List of company-wide holidays
-Clarification of location-based differences

Give MB staff Nov 11 off — at least unpaid, or paid if you want consistency
-This fully avoids the 1.5× issue.

Continue to give Boxing Day to all staff as a company holiday
-This is already working operationally and is allowed.

Present a unified annual holiday calendar to all employees
-Avoids confusion about which province gets what.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Employee on Gradual Return to Regular working hours #97528

Note: This is general guidance, not legal advice. For complex cases like this, it’s appropriate to consult an employment lawyer.

You’re facing several overlapping challenges:

A. Lack of Clear, Predictable Hours

The employee historically worked inconsistent early-morning/late-night hours. Returning to irregular, unstructured hours is not operationally feasible.

B. A GRTW Plan That Is Incomplete

The doctor’s note gives daily hours, but not when those hours must occur. Without time-of-day restrictions, you decide the schedule, not the employee.

C. Boundary-Pushing and Emotional Meetings

The employee agrees to schedules, then requests additional flexibility. Emotional responses (crying) make discussions difficult but do not change your rights and obligations.

D. Performance Concerns

Productivity is low and tasks take significantly longer. You need to document this and manage performance separately from accommodation, but in a coordinated way.

Your Legal Framework (Canada)
Duty to Accommodate

You must accommodate disability to the point of undue hardship, but you are not required to:

-Allow the employee to choose any work hours they want.
-Allow unlimited flexibility.
-Accept irregular, unpredictable hours if it disrupts operations.
-Approve overtime, especially if the doctor has set hour limits.
-Tolerate poor performance if it is not medically justified.

You can and should require:

-Predictable hours.
-Work performed during business operating times.
-Compliance with the medically-approved GRTW plan.
-Updated medical information if the plan is unclear or ineffective.

What You Can Do Next (Best Practices)
A. Request Clarification From the Treating Physician

This is your strongest next step.

You are entitled to request medical clarification when the current doctor’s note is insufficient for operational planning.

What you can ask (legally permitted):

-Whether the employee can work within your standard business hours.
-Whether the employee has any medical restrictions on time of day they can work.
-What level of predictability/consistency is medically required.
-Whether overtime or extended hours are clinically contraindicated.
-Expected prognosis for functional improvement (NOT diagnosis).

You can provide the doctor with your business hours (e.g., 8:00–4:30) and ask whether the employee can work their 2, 4, or 6 scheduled hours within those parameters.

You should also ask the physician to comment on:

-Any required pace of work.
-Ability to complete tasks within normal timeframes.
-Whether additional rest breaks are required.

This is not a request for diagnosis—only functional capacity.

B. Reinforce That the GRTW Plan Must Be Structured

Tell the employee (and put in writing):

-“Your GRTW hours must occur between X and Y.”
-“Overtime is not permitted during your medical accommodation period.”
-“Hours outside business operations are not acceptable.”

The doctor has not stated that the employee must work irregular hours, so you do not have to allow them.

C. Separate the Accommodation From Performance Issues

You cannot discipline for disability-related performance issues if the disability is the cause.

But you can:

-Document all missed deadlines, prolonged tasks, and quality issues
-Ask the doctor whether the performance concerns are medically related
-Set clear expectations during the GRTW period

If performance problems are not medically linked, you may proceed with performance management later.

D. Manage Emotional Responses Compassionately but Firmly

Meetings with crying employees can make employers hesitant to set boundaries. But emotional reactions do not change your obligations.

Best practice is to:

-Acknowledge their feelings
-Keep meetings short.
-Focus on the agreed GRTW plan.
-Avoid negotiating schedules during emotional distress.
-Always follow up with written summaries.

E. Set Clear Boundaries Around Overtime

While the employee is on a GRTW:

-No overtime should be permitted
-Doing more hours than medically approved can be a health and liability risk
-If they insist they “can do more,” refer back to the doctor
-If needed, ask for clarification: “Is the employee medically allowed to exceed the graduated plan?”

A Sample Script You Can Use With the Employee

“We are committed to following your doctor’s recommendations for a gradual return to work.
Your doctor has approved X hours per day for the next two weeks, increasing gradually.
These hours will be scheduled within our normal business hours of [8:00–4:30].
We are not able to support work outside of business hours, nor overtime, as this does not align with your medical plan or operational needs.
If your medical provider believes you require a different schedule, we will need updated medical documentation specifying the required hours and restrictions.”

If the Employee Declines the Structured Schedule

If the employee:

-Refuses to follow the GRTW.
-Insists on working outside business hours.
-Pushes for overtime.
-Does not show up for scheduled hours…

…then they may need to remain on medical leave until they are able to perform work in accordance with operational needs.

An employer is not obligated to implement an unstructured or unworkable accommodation.

When to Escalate to Legal Advice

Consult a lawyer if:

-The employee refuses to follow the schedule.
-The doctor will not clarify the functional limitations.
-Performance issues escalate.
-You believe you have reached “undue hardship”.

I hope this helps and best of luck!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Total and Permanent Disability Termination #97514

There is no automatic rule in Saskatchewan that says “after 12 months of disability you can terminate.” Termination is sometimes lawful in that situation, but only if:

-you’ve met your duty to accommodate to the point of undue hardship, and
-the medical evidence shows the employee is not reasonably expected to return to any work in the foreseeable future, so the contract is effectively “frustrated.”

Whether that’s true in your specific case is very fact-dependent and is something a Saskatchewan employment lawyer should confirm.

What the law in Saskatchewan actually says

The Saskatchewan Employment Act (SEA) provides rules about job-protected medical and serious illness leaves and establishes minimum notice or pay in lieu for termination. It also requires employers, where reasonably practicable, to modify duties or reassign a disabled employee who cannot perform their regular job. However, the SEA does not set a maximum duration for medical leave and does not contain any rule that automatically allows termination after 12 months of disability.

In addition to the SEA, the Saskatchewan Human Rights Code prohibits discrimination based on disability and requires employers to accommodate employees to the point of undue hardship. The Human Rights Commission emphasizes that the threshold for establishing undue hardship is high. The employer’s duty is generally considered fulfilled only when the employee has been accommodated and still remains unable to return to work in the foreseeable future, or when continuing the accommodation would threaten the proper operation of the business. The Commission also makes clear that there is no fixed duration of absence that automatically permits an employer to end employment. Employees may be away for many months or even years and still have a reasonable prospect of returning.

How “no ability for any meaningful work” is usually analyzed

In the scenario where an employee has been absent for more than twelve months, cannot return to their pre-disability occupation, and has medical evidence indicating no ability to perform any meaningful or productive work, employers often consider whether the employment contract has been legally frustrated. Frustration is a common-law concept that applies when an unforeseen event, such as a long-term disability, makes the performance of the employment contract impossible or futile.

To rely safely on frustration or non-culpable termination, employers are generally expected to have reliable and current medical information confirming that the employee has no reasonable prospect of returning to any form of work in the foreseeable future. This includes not just the pre-disability job but any modified, alternative, or reduced-duty position. Employers are also expected to show that they made genuine efforts to accommodate the employee. This usually involves a documented review of whether job duties could be modified, whether alternative work exists, whether hours or schedules could be adapted, and why each option was not feasible or would produce undue hardship. The undue hardship assessment must take into account the employer’s resources, the cost and impact of accommodation, and implications for operations and workplace safety.

Even where frustration applies, the employer must still comply with the SEA’s minimum requirements for notice or pay in lieu, unless the situation meets the narrow conditions in which statutory entitlements do not apply. The termination must be framed as non-culpable because the employee’s inability to work arises from disability rather than any form of misconduct.

Whether the employer can terminate in the situation described

There is no provision in the Saskatchewan Employment Act that permits automatic termination after twelve months of disability. Termination may be lawful in the circumstances you described if the employer has already fulfilled the duty to accommodate, if the medical evidence shows the employee is not reasonably expected to return to any type of work in the foreseeable future, and if further accommodation would result in undue hardship for the organization. The employer must also provide the required statutory entitlements and follow a proper, non-culpable termination process. If these conditions are not met, the employer faces a heightened risk of a human rights complaint or a wrongful dismissal claim.

Practical next steps and risk-management considerations

To approach a situation like this responsibly, employers typically begin by confirming the medical prognosis with updated and detailed information about the employee’s functional abilities and likelihood of returning to work. They document their accommodation process, including all possible modifications or alternative roles that were considered and the reasons those options were not viable. Employers also verify whether any job-protected leaves remain available under the SEA or any applicable policies or agreements. Before proceeding with termination, employers usually seek legal advice from a Saskatchewan employment lawyer to determine whether the facts support a true frustration-of-contract conclusion. Throughout the process, they prepare for the possibility of a human rights complaint by ensuring they can demonstrate good-faith and thorough attempts at accommodation.

Important disclaimer

This explanation provides general legal information rather than legal advice. I do not know all the specific facts of your situation, and each case can turn on details in medical evidence, job duties, employer resources, and contractual terms. Before making any termination decision, it is advisable to consult a Saskatchewan employment lawyer or seek guidance from the Saskatchewan Human Rights Commission or Employment Standards. If you want, I can convert this into a more concise internal guidance note or policy explanation for supervisors.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Reprisal on receiving Survey results feedback #97512

Of course Trisha, anytime! We <3 you too!

[Haley O’Halloran]

in reply to: Reprisal on receiving Survey results feedback #97510

Hi! Here are some best practices I recommend to approach this situation:

Immediate Priorities (Risk and Organizational Protection)
A. Protect the employees from further reprisal

The manager’s behaviour—confronting an employee about 360° feedback and threatening punitive action in performance reviews—constitutes retaliation, which is a serious breach of organizational policy, psychological safety obligations, and potentially occupational health and safety laws related to bullying and harassment.

Immediate actions:

Instruct the manager in writing to have no further conversations with employees about the 360° feedback, the survey, or any performance reviews until your investigation is complete.

Temporarily restrict the manager’s decision-making authority related to year-end reviews if feasible.

Remind employees that retaliation is prohibited and that you are addressing the situation confidentially and promptly.

B. Document everything

Keep detailed records of employee complaints, 360 feedback process steps, your coaching efforts, and the recent reprisal incident.

Document how the organization has responded—this shows due diligence.

Conducting the Investigation Interview With the Manager

Your interview will focus on gathering facts and giving the manager an opportunity to respond. Keep the tone neutral and investigative, not disciplinary (yet).

A. Before the meeting

Prepare a factual script of what you know:
e.g., “On [date], you received your 360 feedback results. On [date], you spoke with Employee X. It was reported you said…”

Have policies ready:

-Respectful workplace / anti-harassment
-Performance management
-Retaliation/reprisal policy (if applicable)

B. During the meeting

Use structured questions to assess:

1. Acknowledgment of actions

“Can you walk me through your conversation with Employee X after you received your feedback results?”

2. Intent

“What was your intention behind addressing the 360 feedback with the employee?”

(Intent is not an excuse, but it helps determine sanction, training needs, and whether the behaviour was deliberate.)

3. Awareness of impact

“How do you think the employee may have perceived this conversation?”

This helps assess whether the manager understands psychological safety and power dynamics.

4. Understanding of policy

“Can you explain your understanding of our policies on retaliation, respectful communication, and coaching?”

5. Future behaviour

“If faced with difficult feedback again, what steps will you take to ensure professional conduct and maintain psychological safety?”

C. Provide procedural fairness

Give the manager an opportunity to provide context.

Do not argue or debate; gather facts and evaluate after.

3. Post-Interview Assessment

Based on findings, determine:

A. Severity

Retaliation is considered a serious violation because it:

-Damages trust
-Undermines the feedback process
-Threatens psychological safety
-Can create a toxic climate or constructive dismissal risk

B. Likely outcomes

Depending on severity, history, and intent, outcomes may include:

-Formal disciplinary warning (written)
-Final written warning if behaviour is severe or repeated
-Mandatory structured coaching with clear behavioural expectations
-Restriction of supervisory duties
-Performance improvement plan (PIP)
-Removal from leadership role if improvement is unlikely or employees’ safety is compromised

Best Practices Moving Forward
A. Strengthen and clarify your retaliation policy

Ensure it clearly states:

-Employees can raise concerns or participate in feedback tools without fear.

-Retaliation is strictly prohibited and will result in discipline.

-Managers have a higher standard of accountability.

B. Leadership training must include power dynamics and psychological safety

Managers often think “I was just joking” is a defense. It is not.
Training must cover:

-Impact vs. intent
-Power imbalance
-Trauma-informed communication
-Emotional regulation
-Safe feedback practices

C. Introduce guardrails on performance reviews

At least temporarily, verify all this manager’s year-end reviews through HR before delivery. This:

-Prevents retaliatory ratings

-Protects the organization from claims

-Models accountability

D. Continue coaching and monitoring

Set very clear, measurable expectations:

-No jokes at others’ expense
-No discussing 360° results with staff
-Demonstrate respect in all communications

If expectations are not met, progressive discipline should escalate.

Messages to Employees

You do not share disciplinary decisions, but you can assure them of safety:

“We take your concerns seriously. We are addressing the matter in line with our policies. Retaliation will not be tolerated. If you experience any further issues, please notify HR immediately.”

This keeps them protected without divulging confidential details.

Protect the Integrity of the 360° Process

Make clear to all leaders:

-360 feedback is not a tool for punitive action.
-Leaders must never confront employees about who said what.
-Results should be reviewed with HR or a coach, not staff.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Reduced schedule to medical reasons #97492

In British Columbia, this situation involves two overlapping obligations:

The Employment Standards Act (ESA) – which covers basic leave entitlements, and

The BC Human Rights Code (HRC) – which requires employers to accommodate disabilities to the point of undue hardship.

Because your employee’s reduced schedule is due to “illness,” this likely falls under the duty to accommodate a medical condition or disability under the Human Rights Code — not just ESA sick leave rules.

Medical Information: What You Can Request

You can ask for additional medical information, but there are limits — you’re entitled only to information necessary to understand the employee’s functional abilities and restrictions, not their diagnosis or specific treatment.

It’s reasonable and legally defensible to ask for clarification when:

-The doctor’s note is vague (“reduced schedule due to illness” with no details);
-The accommodation has been extended multiple times;
-You need information to plan work scheduling or ensure safe return-to-work.

You may request a functional abilities or capacity form (sometimes called a “fitness for work” or “return-to-work” form) if:

-You frame it as necessary to understand what work the employee can safely perform; and
-You do not ask for diagnosis or unrelated personal health information.

What You Can Ask For (Examples)

You can reasonably request that the doctor provide:

-The employee’s functional limitations (e.g., number of hours per day/week the employee can work, lifting restrictions, stamina, concentration limits, etc.);
-The expected duration of these restrictions or accommodations;
-Whether the limitations are temporary or permanent;
-Whether there are specific work duties or conditions that should be avoided.

A Functional Abilities Form (FAF) is an appropriate tool for this — the BC Human Rights Tribunal has upheld employers’ right to use such forms when accommodations extend or affect operational needs.

What You Cannot Ask For

You cannot request:
-The exact diagnosis or underlying medical condition;
-Details of treatment or medication;
-Irrelevant personal medical history.

Best Practices

-Acknowledge the updated medical note and confirm the temporary accommodation continues.

-Explain to the employee (in writing, politely) that you need additional information to ensure the accommodation remains appropriate and sustainable.

-Provide a Functional Abilities or Fitness-to-Work Form for their physician to complete.

-Keep communication open and confidential — remind the employee that the purpose is to support their health and successful return to full duties.

Sample Wording to Request More Information

“Thank you for providing your physician’s note extending your reduced schedule. To ensure we can continue to accommodate you appropriately and maintain operational needs, we require some additional information about your current functional abilities and work restrictions.

Attached is a functional abilities form for your physician to complete. This will help us understand what work you can safely perform and what accommodations remain necessary. Please return the completed form by [reasonable deadline, e.g. one week].”

If the Employee Refuses

If the employee or physician refuses to provide functional information:

-Document your request and their response;
-Continue the current accommodation temporarily.

If insufficient information persists, you may (after fair effort) pause or modify the accommodation if you cannot verify ongoing need — but only after seeking legal or HR counsel.

-HRInsider Staff

[Haley O’Halloran]

in reply to: BC ESA – when an employer terminates employment – pay employee in 48 hrs #97491

Great question — this is a common compliance issue in BC.

Employment Standards Act Requirement

Under section 18 of the BC Employment Standards Act (ESA), when employment ends (whether by resignation or termination), the employer must pay all wages owing within specific timelines:

-If the employee is terminated: within 48 hours after the last day of employment.
-If the employee quits: within 6 days after the last day of employment.

The key phrase here is “must pay all wages owing” — which refers to when the employee actually receives payment, not just when the employer initiates it.

What That Means Practically

The ESA interprets “pay” as the employee having access to the funds, not merely the employer having processed or transmitted them. Therefore:

Submitting payroll to ADP within 48 hours does not satisfy the requirement if the funds won’t be deposited until after that 48-hour window.

The law requires that the employee be paid (i.e., the money is in their hands or account) within 48 hours of termination.

Options for Compliance

Given your ADP system’s three-day processing cycle, here are a few compliant options:

-Issue payment directly through your bank within the 48-hour window (e.g., e-transfer or direct deposit), even if this requires manual handling of taxes.

-Provide a physical cheque or bank draft within 48 hours — this meets the “paid” requirement.

-If possible, request ADP’s “off-cycle” or “expedited” payroll run — many systems can handle termination pay within 1–2 days for compliance purposes.

You can then record the payment manually in ADP and handle tax remittances in the next regular payroll cycle (consult your payroll provider or CRA for the cleanest method).

Recommended Next Steps

Confirm with ADP whether they offer a “termination pay run” or similar expedited option.

If not, pay manually within 48 hours, then enter the payment into ADP retroactively to keep records consistent and ensure CRA remittances are accurate.

Keep documentation showing when and how the employee was paid, in case of an Employment Standards Branch inspection.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Performance Improvement Plan #97468

A mini PIP, or informal performance support plan, is a very effective approach when performance has dipped but not to a serious or chronic level. It’s particularly appropriate when feedback wasn’t raised earlier in a performance appraisal or when there’s been a moderate decline that doesn’t yet justify a formal Performance Improvement Plan.

This type of plan works well as a developmental and coaching tool. It signals to the employee that improvement is needed but does so in a supportive, collaborative way. The intent is not disciplinary but to give structure and clarity around expectations and next steps. It helps prevent issues from escalating while also documenting reasonable efforts to help the employee succeed.

A mini PIP should still have some structure, even if it’s light. It begins with a short written summary stating that the plan is developmental, not disciplinary. It identifies two or three key performance areas that need attention, sets clear and measurable goals for each, and outlines the support that will be provided by the supervisor. The timeline is usually thirty to sixty days. Regular check-ins—weekly or biweekly—help ensure progress is tracked, and there should be a concluding meeting to discuss outcomes and next steps.

The direct supervisor should take the lead on the process. Because they work most closely with the employee, they are best positioned to define the expectations, provide coaching, and evaluate progress. They should document meetings and progress updates and share a copy with HR for the employee’s file. HR should not drive the process but instead act as a consultant, reviewing the plan before it’s presented to ensure that the tone and language are appropriate and that it aligns with company practices. HR’s involvement should be advisory, ensuring fairness and consistency rather than formality or discipline.

Tone and communication are critical. The conversation should feel collaborative, focusing on shared accountability and support. A manager might say, “Let’s create a short-term plan together to focus on the key areas you need to strengthen, and I’ll check in to make sure you have the support you need.” The document itself can be simple—often a one-page summary or an email confirming what was discussed and agreed on. It should avoid heavy HR or legal language such as “disciplinary step” or “final warning.”

HR should become more actively involved if the employee’s performance fails to improve after the mini PIP period, or if new concerns arise that could lead to formal action. HR should also step in if the issue becomes complex or sensitive, such as involving accommodation, health, or interpersonal conflict. At that stage, HR can help assess whether a formal PIP or another process is appropriate.

In summary, a mini PIP makes sense for moderate or recent performance issues where the goal is improvement rather than discipline. It typically lasts thirty to sixty days and focuses on a few key areas. The tone should be coaching and supportive, the process should be led by the supervisor with HR providing oversight, and the documentation should be concise but clear. If the issue persists or deepens, HR can then transition the process into a formal PIP or another next step.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Probationary Review Process #97467

Here’s a detailed breakdown addressing each of your questions about probationary periods and best practices, with a focus on Ontario employment standards and HR best practices.

1. Extending Probation from 3 to 6 Months

Legal Context:
Under Ontario’s Employment Standards Act (ESA), the probationary period is not legally defined, but termination without notice or pay in lieu is typically permissible during the first 3 months of employment. After 3 months, employees are entitled to at least one week’s notice (or pay in lieu).

Practical Benefit of 6 Months:

A 6-month probation can help in evaluating long-term fit and performance for roles that have longer learning curves.

It gives managers and employees a more realistic time frame to assess alignment with company values and competencies.

However, extending beyond 3 months doesn’t reduce liability — you’d still need to provide notice or pay in lieu if terminating after 3 months.

Since you already offer benefits and RRSPs earlier, there’s no major financial upside; the benefit is purely performance management and alignment time.

Termination Implications:
Even within a probationary period, termination “for cause” due to performance is risky unless gross misconduct or willful neglect can be proven. It’s usually safer to terminate without cause and provide appropriate notice or pay in lieu (especially post-3 months).

2. PIP (Performance Improvement Plan) After Probation

Yes — this is common and advisable.
If an employee shows potential but is not meeting standards at the end of probation, you can:

Extend the evaluation period with a structured PIP (typically 30–90 days).

Outline clear, measurable objectives and support mechanisms.

Document all feedback and check-ins.

This demonstrates fairness and due diligence if the employment later ends, and it strengthens your legal position.

3. Longer Probations for Executives (Up to 1 Year)

Legally permissible: There’s no statutory limit to probation length in Ontario as long as ESA notice/pay obligations are met after 3 months.

Recruitment risk: Executive candidates often view long probations (>6 months) as a red flag. Instead of formal “probation,” many companies:

Use performance milestones or contractual evaluation periods for executives.

Link these to bonus or stock eligibility rather than job security.

Benchmarking:
There’s no centralized database of “average probationary periods,” but:

-3–6 months is the norm for most roles.
-6–12 months for senior or complex positions is acceptable if structured well and communicated transparently.

HR associations such as HRPA (Ontario) or CCHRA/Chartered Professionals in Human Resources Canada (CPHR) may publish sector-specific survey data on this.

4. Handling Underperformance in a 6-Month Probation

If the employee is not meeting objectives despite regular check-ins:

-Document everything: Keep detailed notes from all check-ins, feedback, and development efforts.
-Provide specific feedback early: Don’t wait until month 5 or 6 to raise performance concerns.

Final review:

If minimal improvement: consider termination without cause and provide statutory pay in lieu (if beyond 3 months).

If some improvement or potential: transition into a PIP with defined timelines and support.

Follow consistency: Apply the same process to all employees to avoid claims of unfair treatment.

5. Other Considerations When Revamping the Probation Process

-Set clear objectives upfront: Include role-specific expectations and behavioral benchmarks.
-Schedule structured reviews: At 30, 60, and 90 (or 180) days — documented in writing.
-Clarify in offer letters: The probationary period, review process, and that employment may be terminated without cause (subject to ESA).
-Train managers: Equip them to deliver constructive feedback early.
-Communicate benefits timing: Ensure it’s consistent and transparent, especially if benefits start before probation ends.
-Use probation as onboarding extension: Focus not only on performance but also on engagement, cultural fit, and support.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Question about Termination Clause Validity and Severance Entitlement #97463

Hi Rebecca! Excellent, detailed questions — these raise several key issues under Alberta employment law. Here’s a structured breakdown with legal reasoning and commentary relevant to each point.

1. Validity of the Termination Clause

Clauses like this are intended to limit notice or pay in lieu to statutory minimums, but Alberta courts apply a strict interpretation against employers.
For such a clause to be enforceable:

-It must clearly and unambiguously waive common law notice rights.
-It must comply fully with the Employment Standards Code (ESC) minimums.

Even minor ambiguities can render it unenforceable, reverting the employee to common law reasonable notice (often one month per year of service).

In your clause, the language “the maximum amount of pay or notice as prescribed by section 56 of the Alberta Employment Standards Code” could be vulnerable. If any part of it is inconsistent with the ESC (see next question), courts may find it void.

Case examples:

Kosowan v. Concept Electric Ltd., 2007 ABCA 85 — ambiguous or inconsistent wording invalidated a termination clause.

Rossman v. Canadian Solar Inc., 2019 ONCA 992 — Ontario case, but persuasive in Alberta; an internal inconsistency in reference to statutory minimums voided the clause.

So: it might not effectively limit entitlement to minimums if the wording is even slightly unclear or incorrect.

2. Error in Section Reference and Terminology

You’re correct that Section 56 of the Alberta ESC deals with termination notice or pay in lieu, not “severance pay.” Alberta doesn’t have a statutory severance requirement — only Ontario and federal law do.

This mislabeling and incorrect section reference could make the clause ambiguous. Courts in Alberta have invalidated termination clauses that:

-Cite the wrong statutory section, or
-Use inaccurate terminology that could confuse the employee about their rights.

An employee (and a court) could reasonably interpret the clause as misstating the law, making it unenforceable. Ambiguity always benefits the employee in these situations.

3. Exclusion of Regular Overtime from Termination Pay

If the employee regularly works and is paid for contractual overtime, that pay is part of “wages” under the Employment Standards Code (s. 1(1)(x)).

Section 56(1) requires notice or pay “at least equal to the wages the employee would have earned” during the notice period — meaning base pay + regular overtime + other guaranteed pay components.

If the employer excludes the consistent overtime pay, that would:

-Breach the Code’s minimums, and
-Further weaken the enforceability of the clause, since it would fail to meet statutory compliance.

It could also strengthen a wrongful dismissal claim, as courts would interpret the clause and payment practice together as inequitable or misleading.

4. Effect of the New Contract (New Role and Pay)

Because the employee:
-Accepted a new role,
-Received a substantial pay increase, and
-Signed a new employment contract,
the employer may argue that this was a new employment relationship starting January 2025.

However, courts look at continuity of employment, not merely a change in role or contract. If the employee remained with the same employer and there was no break in service, courts often find continuous service for calculating notice — unless the new contract clearly states prior service will not be recognized.

In this case, since he was promoted internally, it’s likely considered continuous service. Courts in Alberta (e.g., Ceccol v. Ontario Gymnastic Federation, applied in AB) are reluctant to reset service unless the change was so substantial it created an entirely new employment relationship.

Given 7.5 years of continuous service, the employee would likely retain that tenure for notice calculation purposes.

5. Possible Constructive Dismissal or Bad Faith Termination

If management is having him train his replacement without explanation, that raises potential issues:

-If his role is being materially reduced, reassigned, or eliminated without notice or agreement, that can constitute constructive dismissal — an employer-initiated change to a fundamental term.

-If they terminate him soon after the promotion without transparent reasons, there may also be an element of bad faith under Honda Canada Inc. v. Keays, 2008 SCC 39, which could justify aggravated or moral damages.

Evidence that he’s being “replaced quietly” could help demonstrate the employer’s lack of good faith or honesty in the manner of dismissal, even if the termination itself is without cause.

Overall, the termination clause carries significant legal risk for the employer. Its ambiguity, incorrect reference to section 56, and misuse of the term “severance pay” make it likely unenforceable, exposing the employer to common law reasonable notice obligations. Excluding regular overtime from termination pay would likely breach the Employment Standards Code and further strengthen a wrongful dismissal claim. Although the employer might argue that the January 2025 promotion created a new employment relationship, the courts would probably find the employee’s service continuous for notice purposes. Finally, quietly replacing the employee without explanation could raise concerns of constructive dismissal or bad-faith conduct, potentially leading to additional damages.

I hope this helps.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Potential Misuse of BC ESA Leave Entitlements #97461

This is a delicate HR and compliance issue where fairness, due process, and consistency are essential. Here’s how to approach the situation professionally and lawfully:

1. Clarify the Legal and Policy Context

Since this involves Compassionate Care Leave, the Employment Standards Act (ESA) governs the employee’s entitlement.
Key points to remember:
-Employees are entitled to unpaid Compassionate Care Leave to care for a critically ill family member.
-The employer cannot deny the leave if appropriate documentation (a medical certificate) is provided.
-It’s not the employer’s role to assess the legitimacy of the medical situation beyond the documentation.

The company can, however, require the employee to provide the medical certificate and confirm the relationship to the family member.

2. Plan the Conversation Carefully

You should schedule a meeting that is non-accusatory, fact-seeking, and documented.
Here’s an outline for how to structure it:

a. Express Concern and Clarify Facts

Begin with empathy: “We understand this is a difficult time for your family.”

Confirm understanding of the leave request: “We’ve received your medical documentation and understand you’re requesting Compassionate Care Leave between [dates].”

Ask for clarification as needed — e.g., who the family member is, the nature of care required, and whether travel to India is necessary.

b. Acknowledge the Timing

You can gently note that you had previously discussed a vacation request for similar dates.

Phrase neutrally: “We did notice that the timeframe overlaps with the vacation request you had made earlier. Can you help us understand your current circumstances so we can ensure proper coverage while supporting your situation?”

This allows the employee to respond without feeling accused of dishonesty.

c. Outline Expectations

Reinforce that you take all leave requests seriously and must ensure coverage for the team.

Clarify the leave is unpaid, and that communication expectations remain (e.g., updates if plans change, confirming return date).

Document everything discussed.

3. Maintain Documentation and Consistency

Keep detailed records of both the vacation denial and the compassionate care leave request.

Ensure consistency with how other similar cases have been handled.

Avoid making comments that suggest disbelief — focus on policies and documentation requirements.

If any doubts remain, you can request a copy of the ESA-compliant medical certificate (if the one provided lacks specific details).

4. Balancing Trust and Due Diligence

Your Project Manager’s skepticism is understandable, but HR’s responsibility is to:
-Uphold the law.
-Protect the organization from claims of discrimination or reprisal.
-Maintain a fair and compassionate process.

Remind the PM that suspicion alone is not grounds to deny ESA leave. However, you can monitor for patterns of misuse and take appropriate steps later if evidence arises (e.g., inconsistent return, failure to provide required documentation).

Suggested Talking Points for the Meeting

“We want to make sure we fully understand your situation and provide the appropriate support.”

“Can you walk us through what care you’ll be providing during this time?”

“We’ll need to ensure proper documentation for your Compassionate Care Leave — can we confirm that we have all required paperwork?”

“Our goal is to support you while ensuring continuity for our team.”

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: OT and Piece Rate Bonus #97449

No worries at all Aleesha, I’m here to help! Ask as many questions as you have.

You’re asking a very good and important question, especially given the nature of your organization and the fact you want to give your President confident advice. I’ll outline what the law in British Columbia says, how it applies, and the risks your President should be aware of — and note this is general guidance, not legal advice (you may want to have it reviewed by counsel).

What the law says in BC

Under the Employment Standards Act (ESA) in British Columbia, for most employees:

-Standard hours are 8 hours in a day and 40 hours in a week.
-Overtime pay must be paid when the employee works more than:
-8 hours in a day (up to 12 hours) – at 1.5 × the regular wage (time-and-a-half).
-More than 12 hours in a day – at double time (2 ×).
-More than 40 hours in a week – at 1.5 × the regular wage (for the hours over 40).

These are minimum standards. You cannot contractually waive or substitute them in many cases.

There are some exemptions (for example certain managerial employees, professionals, some industries) or alternatives (averaging agreements) but the default is the above.

How this applies to “piece‐rate bonus instead of paying overtime”

From what you describe: the employer wants to pay staff on a piece‐rate basis (i.e., pay based on output) plus a “bonus” such that the total pay may end up higher than what overtime pay would be. The question: does that legal approach satisfy the overtime obligations?

Here are key issues to consider:

The method of compensation does not remove overtime entitlements
The law says “Employees are paid time-and-a-half … for hours worked over 8 in a day or 40 in a week, etc.”
It doesn’t say “unless you pay them piece rate or set a bonus”. Hence, simply paying a bonus in lieu of overtime is risky if the hours fall into overtime thresholds.

You must be able to identify the regular wage rate –
To compute overtime (1.5 × or 2×) you must know the “regular wage” for the hour. For piece‐rate or bonus systems this becomes complicated: what does “regular wage” mean when output determines pay? The legislation and interpretation guidelines assume an hourly rate base. Employers wanting to pay piece-rate must still ensure the compensation covers minimum wage and overtime requirements. (Though I did not find a clear ESA regulation with “piece rate allowed with overtime built in” in BC.)

If the piece rate always works out to more than what overtime would yield – that does not guarantee compliance.

Just because the employee in a particular week/or day ended up earning more than what 1.5× or 2× might have produced does not mean the employer is exempt from having to pay overtime or that the employer is safe. The statute sets the entitlement based on hours worked, not output. In past similar jurisdictions (outside BC) piece rate pay requires special design and monitoring to ensure it meets minimum standards; failing that the worker may claim unpaid overtime.

If an employee is under an averaging agreement or other special arrangement there may be some flexibility
The ESA allows for written “averaging agreements” for hours of work over 1-4 weeks such that overtime is calculated differently.

That may complicate matters but doesn’t automatically allow ignoring overtime pay. Also, some employees might be exempt from overtime under Regulation (for example certain professionals, managers). You’d need to check if your staff fall into any exemption.

Record-keeping and documentation are key
Because the piece‐rate + bonus strategy placing the employer in a risk area, you would want to document how you derived the regular wage, how overtime is accounted for (if at all), that the piece‐rate “bonus” is truly above and beyond what would have been overtime, and that the employment contract/arrangement makes clear how pay works. But even good documentation doesn’t override the statute’s minimum standards.

My conclusion / what I’d advise your President

Given all of this, what you told your President is essentially correct: The ESA’s overtime provisions apply and simply substituting a piece‐rate plus bonus does not automatically allow you to avoid paying overtime at the required 1.5× or 2× rates for hours over the thresholds.

So to advise:

You should assume that for most of your staff (unless they are clearly exempt under the Regulation) the overtime rules apply.

If you want to implement a piece‐rate + bonus structure in lieu of overtime, you should first evaluate very carefully:

Are the standard hours being exceeded (8/day or 40/week)?

Are you comfortable that your pay formula always results in equal or better compensation than what the overtime rate would produce?

Are you comfortable you can prove that for each employee for each day/week (because the law is about entitlement per hour).

Do you have contracts or policies that are clear and consistent and conform with the ESA (but note you cannot contract out of minimums).

Consider getting formal legal advice because if a claim is made by an employee (or group of them) the employer may have to pay arrears, interest, perhaps administrative penalties.

It may be safer (and simpler) to continue paying overtime in the statutory way, or to put in place a properly designed “output/piece‐rate” scheme that is assessed as compliant (i.e., you ensure regular pay + overtime equivalent) and document it well.

Given your organization (charity/non-profit in BC) and non-unionized state, you’ll want to avoid surprises such as large overtime claims. So the “piece‐rate bonus instead of OT” route is higher risk unless structured with precision and legal review.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Pay Transparency-HRIS systems #97404

Good questions. Here’s how the Pay Transparency Act treats your issues — and some practical considerations for your organization (a non-profit with fewer than the large-employer thresholds at present).

1. Does the legislation require an HRIS or analytic system?

No, the Act does not explicitly require the employer to have a dedicated HRIS (Human Resources Information System) or analytics tool. The legislation mandates certain data-collection, disclosure and reporting obligations, but does not prescribe the exact technology or system you must use.

More detail:

Under the Act and the associated Regulation, “reporting employers” must collect prescribed employee information (gender category, pay, hours, overtime, bonus, etc.) in order to prepare the annual “Pay Transparency Report”.

The guidance notes that employers should “collect and process pay rate information and identify differences in the prescribed gender categories.” (The Government of B.C. has also developed a Pay Transparency Reporting Tool (PTRT) to assist employers.)

Because these obligations involve data collection, aggregation and reporting, many employers have chosen to use HRIS or analytics-capable systems as a practical matter — but this is a choice or a best-practice rather than a legal hardware requirement.

Since you already conduct regular fair-pay analyses and likely have HR/payroll data, you’re well positioned. From a compliance/risk-mitigation perspective it is wise to ensure your systems can:

-Capture the required data (gender category, pay, hours, bonus, overtime) in a way consistent with the Regulation.
-Provide the ability to generate or extract reports for potential future “reporting employer” status.
-Ensure secure handling of personal/identity data (voluntary disclosures of gender, etc.), aligning with privacy obligations.

So while the law doesn’t force you to buy a specific HRIS, using one (or ensuring your current system supports these functions) is prudent.

2. Must your fair-pay analysis be documented and retained? For how long?

Yes, any analysis you conduct should be documented (i.e., you should keep records) — both as a good governance practice and to support compliance (and if you become a “reporting employer”).

There is no specific retention period in the Pay Transparency Act that covers “how long you must keep the analysis/reporting work-papers” for the pay transparency regime. However:

Under the Employment Standards Act, employers must keep payroll records for 4 years after the record is created. Given that the pay transparency regime draws on payroll/pay-hours/bonus data, retaining the underlying records for at least the same period (4 years) is consistent with broader statutory obligations and good practice.

In addition, the Act requires that the “pay transparency report … must continue to be available until the employer makes available a new report”.

Practical recommendation:
You should document your fair-pay analyses (methodology, data, findings, corrective plans) and retain those materials for at least 4 years, and preferably longer (e.g., 5-7 years) considering possible future audits, stakeholder inquiries or your organization’s evolving size/status. Ensure you have versioning or archival procedures so that you can reconstruct past analyses if needed.

3. Do you have reporting obligations under the Act?

Depends on your size and status. Right now, given your staff size (12 at one location + 30 at the other = total ~42 staff, excluding contractors) your organization likely falls below the current threshold for “reporting employer” under the Act.

Key points:

The Act phases in the “reporting employer” requirement by size:

-By November 1 2024: employers with 1,000+ employees must prepare & post a report.
-By November 1 2025: 300+ employees.
-By November 1 2026: 50+ employees.

Until you meet the “reporting employer” threshold, you are still subject to the other core obligations of the Act (job-posting salary disclosure, prohibition on asking pay history, anti-reprisal protections).
If you ever grow to meet/ exceed 50 employees by January 1 of a reporting year, you would need to prepare and publish a pay transparency report by the relevant November 1 deadline.

So for your current organization:

You likely do not yet have to prepare and publish the annual pay transparency report, but you should be ready: begin implementing policies, data-collection, and analysis readiness so that if/when you cross threshold you are compliant.

You must comply with:

-Including expected pay or pay-range in publicly-advertised job postings.
-Not asking applicants about their pay history (unless publicly available).
-Ensuring employees are not penalized for discussing pay or asking about the pay transparency report.

What this means for your organization (recommendations)

Given your size and current practices, I would suggest you treat this proactively:

Maintain your regular fair-pay analyses (you’re already doing them) and document them thoroughly (data, methodology, findings, corrective actions).

Update your job-posting templates so that any publicly-advertised roles include a realistic pay range (not “$ TBD” or “starting at”).

Review your recruitment documentation to ensure you do not ask applicants for their past pay history.

Update your pay transparency policy or procedure (and incorporate into your HRIS or tracking system) so you have:

-Mechanism to collect gender category disclosures (voluntary) when required.
-A process to provide employees an annual opportunity to update their gender/identity data.
-A defined archive/retention process for pay-data, analyses and reports (4-5 years minimum).

Monitor your employee count — if you approach or cross 50 employees, begin preparing for the report requirement (data-architecture, drafting the first report, publishing on a publicly-accessible site).

Communicate internally: Let your staff know that you’re implementing fair-pay transparency practices, that you comply with the Act, and that you protect employees who ask questions or share pay-related information.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Pay Transparency Policy Requirement #97403

Hi Susie! Good question. The short answer is yes, employers subject to the relevant pay-transparency legislation do need to take certain steps, but there is no general blanket federal law in Canada that says “every employer must have a pay transparency policy.” The obligations depend on jurisdiction and employer size.

What pay-transparency laws currently require

In the Pay Transparency Act (BC-specific), which came into effect May 11, 2023, employers must include the expected pay or pay-range in all public job postings.

This law also prohibits employers from asking job applicants about their past salary history (with limited exceptions) and protects employees who ask about or disclose pay from reprisals. It requires larger employers to prepare and submit annual pay‐transparency reports (e.g., gender-pay gap info) and make the report available to employees.

In the Working for Workers Four Act, effective Jan 1, 2026, employers with 25+ employees who post publicly advertised jobs must include “expected compensation or range” in the posting, among other rules (such as disclosing AI use in recruitment).

The federal level (for federally-regulated employers) has a related framework under the Pay Equity Act which mandates proactive pay‐equity plans, but it does not generally require posting salary ranges in all job ads across all employers in Canada.

Does the law require a specific “policy” document?

While the legislation requires certain actions (posting pay ranges, banning salary-history questions, reporting, etc.), it does not always explicitly require a standalone “pay transparency policy” document in all jurisdictions. The requirement is more about compliance with the substance of the law (job postings, disclosures, protections) than about creating a standalone policy heading “Pay Transparency Policy.”
That said, from a good-governance and risk-mitigation perspective, having a written internal policy (or procedure) is strongly advisable. It helps ensure consistent treatment, provides clarity for managers, and evidences proactive compliance.

I hope this helps! You can refer to our Pay Transparency Template if you want to implement one at your workplace or update your current policy.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Can the employer demand employee seek medical attention? #97402

Yes — it would be both appropriate and advisable to set clear behavioural expectations on her return, while also approaching the situation in a supportive, legally sound, and psychologically safe way. Here’s how you can handle it step by step:

1. Prepare for the Return-to-Work Conversation

When you contact her before the return date, confirm:

-Whether she feels ready to resume her duties.
-That her wellbeing is the top priority, and the conversation upon return will focus on ensuring a sustainable workload and healthy workplace interactions.

This sets the tone that the discussion is supportive, not disciplinary — even though boundaries will be clarified later.

2. Structure the Return Discussion

Hold a private, scheduled meeting with her and her manager (possibly with HR present). Key components:

a. Acknowledge the disclosure

Begin by recognizing her statement that she is feeling burnt out. This builds trust and signals that you’re taking it seriously.

“You mentioned before your break that you’ve been feeling burnt out. We appreciate you being open about that — we’d like to make sure you’re supported in returning to work successfully.”

b. Set behavioural expectations clearly

You can — and should — outline the specific behaviours that have caused disruption, focusing on observable conduct, not personality or emotion:

“We’ve observed that there have been tense interactions and outbursts that have affected the team dynamic. Going forward, we expect communication to remain respectful, even in moments of frustration.”

Avoid labeling (e.g., “angry” or “negative attitude”) and focus on impact (“has left team members feeling uneasy or unsure how to approach you”).

3. Include a Performance and Health Safety Clause

Yes, you can indicate that if the behaviours continue, a medical assessment may be necessary to determine fitness for work — but phrase it carefully as a duty-of-care measure, not a punishment.

Example phrasing:

“If these behaviours reoccur or there are ongoing signs of distress, we may need to request medical documentation to confirm that you are fit to safely perform your role and to identify if accommodations are needed. This is a standard part of ensuring both your well-being and the safety of the workplace.”

This aligns with your duty under occupational health and safety and human rights legislation to ensure employees are medically fit for work, while also preventing undue hardship on the team.

4. Document and Follow Up

-Document the meeting (who attended, what was said, and agreed next steps).
-Provide a summary email to the employee confirming expectations and supports.
-Schedule a follow-up check-in (e.g., after two weeks) to review progress and reiterate support.

5. Offer (Don’t Impose) Support Resources

Even if the employee resists self-reflection, gently remind her of:

Access to Employee Assistance Program (EAP) or community mental health resources.

Options to discuss workload adjustments or coaching.

Frame it as “resources available if you wish to use them,” rather than “you need help.”

6. When to Involve Medical or HR Specialists

If the concerning behaviour continues or escalates:

Consult HR or an occupational health professional (I do not count!).

A formal Fitness-for-Duty (FFD) or Independent Medical Examination (IME) may be appropriate.

Document that the trigger was a pattern of behaviour affecting safety or performance, not personal traits.

Best of luck!
-HRInsider Staff

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