[Haley O’Halloran]

in reply to: Record retention requirements and privacy legislation #97356

Yes – Ontario is a little more nuanced but here are my findings and recommendations.

Under the Employment Standards Act, 2000 (ESA) in Ontario:

Employers must keep records for each employee of their name, address, and start date of employment. These must be kept for three years after the employment ends.
Ontario

For other records (hours, wages, etc) the same three-year retention after termination generally applies.

The ESA sets the minimum retention timeframe; it doesn’t necessarily prevent keeping longer records, but it does indicate how long they must be kept.

Privacy laws and employee personal information

There is no general Ontario provincial statute that governs private-sector employers’ collection/use/retention of employee personal information (outside of health information) analogous to FIPPA for public institutions.

Federally, the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to federally regulated enterprises and sets broad principles regarding personal information: collection, use, disclosure and retention must be limited, transparent, necessary, deceased when no longer required, etc.

The workplace privacy guidance from the Office of the Privacy Commissioner of Canada emphasizes that employee privacy rights persist (even for former employees) and that retention of personal information must be addressed.

Key privacy / retention principles

Some of the fundamental “fair information principles” relevant here are:

-Purpose limitation – collect only what’s needed for a stated purpose.
-Retention limitation – keep personal information only as long as necessary for the stated purpose.
-Transparency / policy – inform employees (or former employees) about what is collected, how long it will be kept, for what purpose.

What the law does not require / allow

The ESA gives a minimum retention period; it doesn’t mandate indefinite retention of all employee data.

There is no Ontario statute that says you must delete all employee personal information after X years (for private sector employers). The retention must be reasonable under privacy principles.

Blanket indefinite retention of personal information without a clear purpose and retention policy may raise privacy-risk issues.

Applying this to your scenario

You mention:

The CRA payroll records must be kept for 6 years + current year (for tax compliance).

You want to retain former employees’ name and position (and perhaps limited other info) beyond the minimum three-year ESA requirement.

Question: Would this be a breach of privacy?

Here’s how I’d analyse it:

Legitimate purpose: You have a legitimate business/tax purpose in keeping basic former employee information (name, position) for historical, auditing, or reference reasons. This supports purpose limitation.

Minimum requirement from ESA: For name/address/start date etc you must retain for at least 3 years after termination. If you keep longer, you are going beyond minimum—but that is not automatically prohibited.

Retention beyond that: The key is whether the extended retention remains justified (purpose still valid), documented, and proportionate. If you only keep “name + position” (low sensitivity) and you can show business value (e.g., for referencing past roles, verifying experience, responding to inquiries) then the privacy risk is low.

Sensitive vs non-sensitive info: The greater the sensitivity of the personal information (e.g., SIN, health information, detailed performance review, disciplinary records) the more careful you must be. Name + position is relatively benign compared to more sensitive personal data.

Transparency / policy: Have a clear retention and deletion policy that states: “We retain former employee basic records for X years (or until end of business need) then we review and either archive securely/deidentify or delete.” Communicate this to employees (or include in employment agreement/HR policy).

Secure storage: Even basic information must be protected from unauthorized access/disclosure.

Deletion/archival plan: After the business purpose ceases, you should delete or anonymise the data. For example if you say you’ll keep name+position for up to 10 years for reference, after 10 years you might move to a “former employees archive” or remove altogether.

Regulatory compliance (CRA): Because you have a regulatory requirement for payroll records (6 years + current year) you must retain certain data for tax audit purposes. That gives you a clear purpose and time frame. For other info (like name+position beyond that requirement) you need to ensure you still have a purpose.

So: Is it a breach of privacy?

In my view: It is unlikely to be a breach of privacy if you:

-Limit what you keep (name + position) to what you need.
-Have a documented purpose (e.g., auditing, historical reference).
-Have a retention limit or periodic review for deletion/archiving.
-Apply appropriate safeguards.
-Are transparent with employees.

It could become problematic if you keep large amounts of personal information indefinitely without purpose or policy, or if the information is more sensitive than necessary.

Practical recommendations for your checklist

Here are some steps to build into your retention checklist to ensure you’re aligned with ESA + privacy best practices:

-Record the regulatory retention requirement:
-Payroll tax / CRA related: keep for 6 years + current year (you have).
-ESA minimum: name/address/start date etc for 3 years after termination.
-Define your business-purpose extension:
Example: Keep “name + position (and termination date)” for up to X years (e.g., 10 years) for reference/historical purposes.
-Document rationale for X years.
-Classify data types:
Minimal (name + position + termination date) → lower sensitivity → you may keep longer.
More sensitive (home address, SIN, health info, disciplinary records) → limit retention and delete when no longer needed.
-Establish retention review/deletion schedule:
For each data class define: retention period, storage format, deletion method, review trigger.
Example: Every year review “former employee basic records older than X years” for deletion or archival.

Transparency / policy:

Include in your HR/Privacy policy: that you retain certain former employee basic records, for how long, why, how they can request their data etc.

Consider letting former employees (or employees) know about the retention policy.

Safeguards:

-Ensure access control, encryption where appropriate, secure deletion procedures.
-Ensure when archived the data is still protected.
-Document decision-making:
-Document how you determined the retention period and business rationale in case you need to justify it (e.g., if challenged).

A few nuances & caveats

If your organization is federally regulated (banks, airlines, telecoms), then PIPEDA (and its privacy obligations) apply. Then your obligations around retention, access and correction are stricter. In Ontario private sector for provincially-regulated employers there’s less specific statute but best practice is still to follow PIPEDA-style principles.

Even in private sector, there is emerging case law around employee privacy expectation (especially with electronic devices) which emphasizes that employers must still respect privacy rights and not treat “anything goes”.

Just because you can retain something doesn’t mean you should retain it indefinitely. Privacy risk grows over time (lost records, accumulation of data, cross-reference risk).

If you share, disclose, or transfer former employee personal information (even basic name/position) externally, you must also consider privacy obligations around disclosure and consent.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Performance Improvement Plan #97353

These are great and nuanced HR questions! Let’s address them one by one in the context of Ontario employment law and best HR practices.

Implementing a PIP After a Performance Appraisal

While it’s best practice to introduce a Performance Improvement Plan (PIP) soon after a performance review that identifies deficiencies, you can still implement a PIP later if performance has declined after the appraisal. The key is to ensure that:

You have clear, recent documentation of the performance issues.

You can demonstrate that these concerns are new or escalating since the last performance appraisal.

The timing of the PIP is linked to observable performance issues, not arbitrary.

Employers often need to implement a PIP mid-cycle when performance deteriorates. Just ensure that it doesn’t appear retaliatory or inconsistent with prior documentation.

Implementing a PIP After a Salary Increase

A salary increase following a performance review doesn’t prevent you from issuing a PIP later. However, optics matter:

A raise signals satisfactory performance at that time.

If you introduce a PIP shortly afterward, it could raise questions about fairness or timing.

To mitigate that risk:

Clearly show that the performance problems arose or worsened after the raise.

Document specific incidents or quality issues with dates.

In communications, frame the PIP as a supportive step to help the employee regain prior performance levels.

So yes, a PIP can still be used — the critical factor is causal timing and documentation.

Whether to Wait Until the Project Is Complete

Generally, address issues as they arise, especially if they’re recurring or significant. Waiting until the project ends can:

Weaken the employer’s position by suggesting tacit acceptance of substandard work.

Limit the opportunity for the employee to correct course.

Lead to compounding errors or project impacts.

However, if the employee’s work is critical to project completion and immediate discipline could jeopardize delivery, you can document current issues, provide verbal feedback, and formalize the PIP immediately after completion.
Balance timing and operational risk, but don’t let the behaviour go unaddressed.

If the Employee Cites Personal or Family Issues

When personal factors (e.g., childcare, family illness, etc.) are affecting performance:

Ask if accommodations are needed, consistent with the employer’s duty to accommodate under the Ontario Human Rights Code.

You can still proceed with a PIP, but:

Adjust timelines or expectations as appropriate if accommodations are requested.

Document that you considered accommodations.

Frame the PIP as a collaborative tool, not punishment.

If no accommodation is requested, or if accommodations have been made and performance issues persist, you may continue with the PIP process as usual.

I hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Absenteeism Article in a Collective Agreement #97351

Yes, you do have grounds to include a clause addressing absenteeism, as long as:

It aligns with statutory entitlements (e.g., ESA, human rights accommodation obligations, and collective agreement leave provisions).

It does not create ambiguity that could be seen as overriding those statutory or agreed leaves.

The language is consistent with progressive discipline principles already recognized in arbitral jurisprudence.

Many collective agreements include similar provisions, often under “Attendance Management”, “Discipline”, or “Employee Responsibilities”. The goal is to clearly set expectations about attendance and reporting, while still recognizing legitimate absences.

Risks in the Current Wording

Your proposed wording is clear but may raise union pushback on two fronts:

“Repeated or excessive absenteeism” — can be seen as subjective unless defined or contextualized.

“Up to and including termination of employment” — signals a disciplinary framing, which unions may argue should instead be addressed under existing discipline or attendance management policies.

The union might counter that attendance issues should be managed through a non-disciplinary attendance management process (e.g., counselling and accommodation steps) rather than as a disciplinary matter unless there’s misconduct (e.g., failure to report).

Suggested Alternative Wording

Here are a few softer, but still enforceable alternatives that preserve management’s flexibility:

Option A — Balanced with “May Be Addressed”

“Employees are expected to maintain regular attendance and adhere to established reporting procedures. Repeated failure to meet attendance expectations, without reasonable justification, may be addressed through the employer’s attendance management or progressive discipline process, as appropriate.”

-Keeps flexibility but uses a less punitive tone.
-Recognizes that not all absenteeism is disciplinary.
-Links to existing policies rather than creating a new standalone rule.

Option B — For Inclusion under “Attendance and Reporting”

“Employees are required to attend work regularly and follow established reporting procedures when absent. Unexplained or repeated absences beyond statutory or agreed-upon entitlements may be subject to review and appropriate action, which may include progressive discipline.”

-Emphasizes accountability.
-Uses “may be subject to review” to soften disciplinary tone.
-Maintains the employer’s right to act if attendance problems persist.

Option C — For a Policy Reference Clause

“The parties agree that attendance expectations and procedures shall be outlined in the Employer’s Attendance Management Policy. Repeated failure to meet these expectations may result in appropriate corrective action.”

-Defers specifics to policy (which can be amended later without reopening the agreement).
-Keeps the CBA language general but enforceable.

Recommendation

If the union is resistant to disciplinary language, Option A or C is most likely to pass — they retain your flexibility to discipline when misconduct occurs (e.g., no-shows), while emphasizing fairness and consistency.

If your organization’s culture or operational impact of absenteeism is severe (e.g., safety-critical, small teams), you could keep “progressive discipline” explicit but balance it with “as appropriate” or “in accordance with established policies.”

I hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Dismissals in a Union Environment #97348

Excellent questions — and they show a clear understanding of how unionized and non-unionized employment relationships differ in Canada. Let’s unpack this carefully:

1. Without-Cause Termination in a Unionized Environment

Once a collective agreement (CA) is in place, the individual employment relationship is governed by the CA, not the common law or individual contract principles that apply to non-union staff.

Under a CA:

All discipline and discharge are “for just cause” unless otherwise specified.

A “without-cause termination” (i.e., dismissal with notice or severance in lieu) is generally not permitted once the CA is in force.

If the employer terminates an employee without cause, the union can grieve the termination and take it to arbitration, where the employer must demonstrate “just cause” under the CA.

So, even if you follow a fair process and have performance-related reasons, you still need to meet the “just cause” standard — or use a non-disciplinary layoff or redundancy provision if the CA allows it (e.g., lack of work, funding cut, or reorganization).

Bottom line: In a unionized setting, you cannot retain a unilateral “without-cause termination” right unless the union expressly agrees to include such a clause — and that’s extremely rare because it undermines the core protection of “just cause.”

2. Including a “Without-Cause Termination” Section

It’s generally not advisable to include a section referencing “without-cause termination” in the CA. Doing so could create a conflict with the fundamental “just cause” protection in most CAs.

Instead, you can:

Include a separate layoff or position-elimination clause, which allows terminations for operational reasons, usually with recall rights, notice, or severance conditions.

Maintain probationary period language, since employees within probation can usually be released “without cause” (subject to reasonableness and non-discrimination).

If your intent is to maintain flexibility, work with the union to clarify:

Layoff and recall procedures.

How terminations for funding loss or program closure are handled.

Whether fixed-term or project-based roles are excluded from the bargaining unit.

3. Meaning of “For Just and Proper Cause”

The phrase “for just and proper cause” is a variation of “for just cause” and is interpreted the same way by arbitrators.

It means:

The employer must have a fair, valid, and proportionate reason to dismiss the employee, following due process.

It does not allow for without-cause dismissal; rather, it reinforces that any termination must be justified based on conduct, performance, or bona fide operational grounds (through layoff provisions).

4. Key Takeaways

Once unionized, you lose the right to terminate “without cause.”

You must rely on the CA for any termination (disciplinary or non-disciplinary).

“Just and proper cause” = “just cause.”

To preserve flexibility, focus on clear layoff, redundancy, and probationary language, not without-cause clauses.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Record retention requirements and privacy legislation #97271

Great question — you’re thinking about exactly the right balance between employment and tax record retention requirements and privacy law obligations to minimize or delete personal information. Here’s a structured overview to guide you, specifically for BC and Alberta employees, under employment standards, CRA, and private sector privacy legislation.

1. Employment Standards & CRA Retention Requirements

Canada Revenue Agency (CRA)

Payroll records must be kept for six years from the end of the last tax year to which they relate.

Records include: name, address, SIN, pay information, deductions, and T4 slips.

This is the longest mandatory retention period, and overrides shorter retention periods under other legislation.

Employment Standards (BC & Alberta)

Both provinces require employers to retain payroll and employment records for a minimum of three years after employment ends.

BC: Employment Standards Act, s. 28(1) — payroll records must be kept for 2 years after the employment ends.

Alberta: Employment Standards Code, s. 15 — records must be kept for 3 years from the date the record was made.

Practically, most employers align with CRA’s 6+1 year requirement for consistency.

2. Privacy Legislation (PIPA BC & Alberta)

Both provinces are governed by their Personal Information Protection Acts (PIPA) (separate from the federal PIPEDA):

Organizations must retain personal information only as long as necessary to fulfill the identified purposes or to comply with legal/regulatory requirements.

Once the legal purpose has expired, personal information must be destroyed, erased, or made anonymous.

However, PIPA allows retaining non-sensitive information for archival or historical purposes, provided:

-There’s a reasonable purpose consistent with the original collection,
-Access is limited,
-Information retained is minimal and proportionate.

Key point: Keeping limited identifying information (e.g., name, position, employment dates) after the CRA/employment record retention period has expired is not automatically a breach, if:

-The information is kept for legitimate business or historical purposes (e.g., reference checks, workforce history, recognition records),
-You have policies limiting access and use, and
-You no longer retain sensitive data (e.g., SIN, addresses, bank info).

3. Recommended Approach

To comply with both privacy and retention rules:

Document your retention schedule clearly, linking each category of information to the legal basis and retention period (e.g., payroll → CRA → 6+1 years).

After the retention period, delete or anonymize sensitive personal information (e.g., SIN, addresses, performance records).

Retain a minimal record (name, job title, dates of employment) for legitimate business purposes.

Keep this in a separate, access-controlled historical register.

Note the purpose (e.g., “to verify past employment or organizational history”).

Include this practice in your privacy policy or retention schedule to demonstrate compliance with PIPA’s accountability principle.

4. BC vs Alberta – Differences

There are no major differences between BC and Alberta PIPA in this area. Both focus on reasonableness and purpose limitation.

Neither jurisdiction has an absolute “delete after X years” rule — instead, you must justify why you are keeping the data and ensure it’s no more than necessary.

Caution

Do not retain SIN numbers or other government-issued IDs beyond legal retention periods.

Limit access strictly to HR or records personnel.

Have a written deletion/anonymization procedure to demonstrate compliance if audited.

Payroll and tax records, including information such as Social Insurance Numbers (SIN), T4 slips, and wage details, must be retained for six years plus the current year to comply with Canada Revenue Agency (CRA) requirements. Employment standards legislation in BC and Alberta requires employment records—such as hours worked and wage information—to be kept for two to three years after employment ends. Once these legal retention periods have expired, sensitive personal information (such as SIN, addresses, and detailed payroll data) should be securely deleted or anonymized. However, organizations may retain a minimal record of former employees—typically limited to their name, position, and dates of employment—for legitimate business or historical purposes, such as verifying past employment or maintaining organizational history. This retained information should be stored securely, with access restricted to authorized personnel, and clearly documented in the organization’s records retention schedule or privacy policy to demonstrate compliance with privacy legislation.

In short:

No — retaining just name and position of former employees beyond statutory periods is not considered a privacy breach, provided you have a documented purpose and safeguard the data. It’s common and permissible to maintain a “former employees directory” or organizational history record that has been stripped of sensitive information.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Wage Loss Benefits while on disability and Statutory Holiday Pay #97256

In Saskatchewan, the employer is responsible for paying statutory holiday pay, even when an employee is receiving wage loss benefits through WCB (Workers’ Compensation Board) or a group disability insurance plan, unless the insurance or WCB explicitly covers it — which is uncommon. Here’s a breakdown of how it typically works:

1. Workers’ Compensation Board (WCB) Claims

If the employee is on a WCB claim and participating in a graduated or transitional Return-to-Work (RTW) program:

WCB pays wage-loss benefits for the portion of hours the employee is unable to work (based on their pre-injury earnings and the current reduced schedule).

The employer pays wages for the actual hours worked during the RTW.

Statutory holiday pay is not paid by WCB.

If the employee qualifies under Saskatchewan’s Employment Standards (e.g., has been employed for 13 weeks, has worked at least part of their last scheduled shift before the holiday, and is scheduled to work after), then the employer must pay the statutory holiday pay.

Even if the employee is not working their full hours, if they meet those qualifying conditions, the employer pays the stat holiday pay based on their “regular” wages, which in a transitional RTW is often calculated proportionally to their current schedule, unless there’s a collective agreement or policy specifying otherwise.

2. Group Disability Insurance (Short- or Long-Term)

If the employee is on a group disability claim (not WCB):

The insurer pays disability benefits, typically as a percentage of pre-disability earnings.

Statutory holiday pay is generally not covered by insurers. These benefits are intended to replace income, not to include extras like stat pay.

The employer is usually still responsible for statutory holiday pay if the employee maintains employment status and meets eligibility criteria (e.g., not terminated or on an unpaid leave that removes eligibility).

However, if the employee is fully off work and not participating in transitional duties, they may not meet eligibility for stat pay under the Saskatchewan Employment Standards Act. If they are actively working reduced hours as part of a RTW, they often do.

3. Relevant Saskatchewan Standards

Under The Saskatchewan Employment Act, employees qualify for statutory holiday pay if they have:

Been employed for at least 13 weeks;

Worked their last scheduled shift before the holiday and their first after;

Not refused to work on the holiday if required.

If they meet these, they receive stat pay based on average daily wages, which may be impacted by their current RTW schedule but not replaced by WCB or insurance.

Practical note: Many employers in Saskatchewan top up or continue certain benefits voluntarily, but the legal minimum is that the employer, not the insurer or WCB, is responsible for statutory holiday pay when the employee is eligible.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination Notice Provisions #97249

This is a very common situation in Ontario when organizations evolve their employment templates over time but haven’t standardized past agreements. There are several legal and practical considerations here under the Employment Standards Act, 2000 (ESA) and common law.

Here’s a structured breakdown:

1. Reducing Termination Provisions for Existing Employees

Under Ontario law, you cannot unilaterally reduce termination entitlements that are part of an employee’s existing contract, even if they move into a new role internally. A termination clause that provides (e.g.) 20 weeks’ pay forms part of the contractual terms. To reduce that entitlement, you would need to give the employee “consideration” (something of value beyond continued employment, such as a signing bonus, salary increase, promotion, or extra vacation).

If you simply issue a new contract with a lower termination cap (e.g., 10 weeks), it will likely not be enforceable unless proper consideration is given and the employee voluntarily signs. If they refuse to sign, you cannot force the change, and their original contractual entitlements remain in effect.

Important: Even if you introduce a new template, the older contract continues to govern unless the employee signs a valid new agreement with fresh consideration.

2. Internal Role Changes: Special Consideration

If an employee moves into a genuinely new role — especially with significant changes in responsibilities, compensation, or seniority — you can make signing a new contract a condition of accepting the new role. However:

The new agreement must be presented before the role change takes effect.

The offer must clearly state that accepting the new role is contingent on signing the new contract.

The employee must have a reasonable opportunity to review and seek advice.

If the internal role change is minor or mostly a title change, courts often see this as a continuation of employment, meaning the old termination clause still applies.

3. Determining Termination Pay Above ESA Minimums

Beyond ESA minimums, employers have discretion to set enhanced contractual termination entitlements. There’s no legal “formula” for this. That said, best practices for determining standardized termination pay often include:

Seniority or years of service (e.g., 1 week per year of service, capped at X weeks).

Position level (e.g., executives vs. front-line staff).

Market comparables in your sector.

Budget predictability — clear caps (like 10 weeks) are increasingly common to manage liability exposure.

Once you standardize, consistency is key to avoid claims of unequal treatment.

4. Grandfathering vs. Re-Issuing Contracts

If you want to standardize termination provisions, you have two options:

Option A: Grandfather existing contracts

Leave older contracts intact with their more generous provisions.

Apply the new standard to new hires and any future internal promotions where a new contract is signed.
Low legal risk, but creates internal inequities for a time.

Option B: Reissue contracts to existing employees

You can offer new standardized contracts to all employees, but you must provide consideration for those whose termination terms are being reduced.

If they refuse to sign, their old contract remains valid.

If you proceed without consideration, the clause can be challenged and struck down later.

If the role is not changing, you cannot simply issue a new contract with lower termination terms and expect it to override the old one.

5. If an Employee Refuses to Sign

If someone refuses to sign a contract with reduced termination entitlements:

Their existing contract remains in force.

You cannot discipline or terminate them solely for refusing to sign.

For future promotions, you could make signing the new contract a condition of accepting the new role, as long as that’s handled properly.

Practical Next Steps
-Audit current contracts to identify variations in termination clauses.
-Develop a standardized policy (e.g., 1 week per year of service, capped at 10 weeks).
-For future hires and promotions, use the new template consistently.
-For existing employees with more generous provisions, either:
-Grandfather their existing terms; or
-Offer a new contract with consideration if you want to align their entitlements.
-Consider consulting employment counsel to ensure the language of the new termination clause is ESA-compliant and enforceable (many clauses are struck down due to wording errors).

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Benefits Reductions #97245

Yes, consent is typically possible to correct an administrative error where the agreement mistakenly listed a higher tier of benefits instead of the intended correct tier. Since this is a downward adjustment, parties are generally cautious. To strengthen acceptance:

-Acknowledge the error clearly: State that the higher tier was included in error and was never intended.

-Transparency: Provide a copy of the original proposal, quote, or internal documentation showing the correct tier was always intended.

-Mutual agreement: Secure written consent from the other party that they understand and agree the correction reflects the true intent.

Your suggestion to delay the correction until the end of the year is wise. It avoids immediate reduction of benefits and helps preserve goodwill. This can be presented as:

-Interim grace period: Confirm that the higher-tier benefits will continue until December 31.

-Effective date alignment: Amendment takes effect January 1, giving the other party certainty and avoiding disruption.

-Voluntary fairness: Position the delay as a goodwill gesture, which makes the amendment more palatable.

Concerns to Address

Here are key issues to resolve so the amendment is acceptable:

Retroactivity: Ensure the amendment is not retroactive. Benefits already provided under the higher tier should not be clawed back.

Clarity: Wording must clearly state the intended tier, effective date, and that this replaces the erroneous language.

Employee/third-party impact: If this relates to staff, ensure they are not unfairly disadvantaged mid-year. If it relates to a supplier or partner, confirm service commitments remain consistent until the amendment date.

Regulatory/funding compliance: For charities/non-profits, confirm with funders that changing benefit tiers won’t conflict with grant terms or reporting obligations.

Future proofing: Add a clause that any corrections to clerical/administrative errors can be made by mutual written agreement, to avoid similar issues later.

I recommend that you draft an amendment letter that:

-States the error and identifies the correct tier.

-Confirms benefits will remain at the higher tier until Dec 31.

-Amends the agreement effective Jan 1 to reflect the correct tier.

-Obtains signatures from both parties.

Best of luck!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Piercings and Hair Color #97138

Hi! Yes, we have an attire and grooming policy that can be adjusted for any workplace.

Hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination #97080

This is a delicate situation because it involves both employment law and human rights considerations.

Probationary Employment & Termination

In most provinces, probationary periods give employers some leeway to assess suitability.

Extending probation (as you did, from 3 to 6 months) is allowed if the employment agreement or policy permits it and it’s communicated clearly.

During probation, employers can generally terminate with less notice, provided the termination is not discriminatory and meets minimum employment standards.

Medical Leave and Human Rights Obligations

Because the absences are supported by doctor’s notes and relate to anxiety/mental health, this is considered a disability under Canadian human rights legislation.

Employers have a duty to accommodate disabilities to the point of undue hardship. This means:

You cannot terminate because of the disability or absences tied directly to it, unless you can show undue hardship (e.g., safety, cost, or operational disruption).

Encouraging EAP was a good step—you’re showing support and accommodation.

“Can we terminate once he’s healthy?”

If you wait until he returns with a clean bill of health, you must be careful.

Terminating immediately after recovery may appear as retaliation for his disability-related absences.

Even if technically on probation, this could expose your organization to a human rights complaint.

You would need to demonstrate that the decision is based on non-discriminatory factors (e.g., performance issues unrelated to illness, conduct, operational requirements).

Best Practices & Options

Document everything: Keep records of absences, notes, accommodations offered, and any performance issues.

Assess undue hardship: If the absences seriously undermine operations (especially in safety-sensitive roles like truck driving), you may be closer to demonstrating undue hardship.

Consider alternatives:

Extending probation again if possible.

Offering modified duties or a gradual return-to-work plan.

Consulting an employment lawyer before any termination decision.

Risk Management

If you terminate solely because of health-related absences, you risk a human rights claim.

If you terminate citing clear, well-documented operational concerns (e.g., inability to meet the attendance or reliability standards of a truck driver role despite accommodation), you may have legal footing.

Recommendation: Do not plan to terminate as soon as he gets a clean bill of health. Instead, wait, evaluate his ability to meet job requirements upon return, and only consider termination if ongoing concerns exist despite accommodation. Before acting, I strongly suggest seeking an employment lawyer’s opinion to ensure compliance with your province’s employment and human rights laws.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation pay on Termination notice periods #97068

Great question — Ontario’s Employment Standards Act (ESA) and common law notice interact a bit differently when it comes to vacation pay.

Statutory Notice under the ESA

When you provide statutory notice (working notice), the employee remains employed during that period.

They continue to earn vacation pay as if they were actively working.

Therefore, vacation pay must be calculated on the statutory notice period (2 weeks in your example).

Common Law Pay in Lieu of Notice

Common law notice is not an ESA requirement; it is a court-imposed entitlement for reasonable notice of termination.

When employers provide pay in lieu of notice (instead of requiring the employee to work), this is treated as damages for wrongful dismissal, not as “wages” under the ESA.

Because of that, the ESA does not require vacation pay to accrue on common law pay in lieu.

That said, some employers do pay vacation on the common law portion for consistency or if employment contracts/policies require it — but it is not legally mandated under the ESA.

Using Your Scenario as a Practical Example

2 weeks ESA notice: Vacation pay (6%) must be calculated on this portion.

6 weeks common law pay in lieu: Vacation pay is not required under the ESA, unless your contract or company policy explicitly says so.

So strictly speaking, you would calculate 6% on 2 weeks only, not on the full 8 weeks.

Answer in short:
Vacation pay in Ontario is only mandatory on the ESA notice period (2 weeks here). It does not have to be added on the common law pay in lieu of notice unless contract, policy, or settlement terms specify otherwise.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Splitting parental leave – one parent taking non-consecutive leaves #97066

Great question — this touches on the interaction between federal EI rules (which set eligibility for benefits) and provincial employment standards law (which sets leave entitlements and obligations for employers).

EI Benefits vs. Employment Standards

EI Parental Benefits (federal, under Service Canada):
Employees can choose standard or extended parental benefits and may divide them into non-consecutive periods within the 78-week (extended) or 52-week (standard) window, depending on which option they elected. This is about benefit payments, not an automatic right to time off work.

Job-Protected Leave (provincial, under BC Employment Standards Act [ESA]):
In BC, employees are entitled to up to 62 consecutive weeks of unpaid, job-protected parental leave, to be taken immediately after pregnancy leave (if applicable) or within 78 weeks of the child’s birth/placement. The ESA states that parental leave must be taken in one continuous block. The Act does not provide for splitting it into multiple segments.

Employer’s Role

You are legally required to provide one continuous block of parental leave, as outlined in the ESA.

While EI may allow benefit payments over several segments, that doesn’t create a corresponding employment entitlement.

Therefore, if the employee requests three separate leaves, you are not obligated to grant that structure.

You may allow it as an accommodation or by mutual agreement, but it is within your discretion. If granting multiple leaves causes operational difficulties, you can reasonably decline and require the leave to be taken as one block.

My recommendations

-Communicate clearly with the employee that EI rules and ESA entitlements are not identical.

-If you are open to flexibility, you may approve split leaves as an employer policy decision, but you are not legally required to.

-Always confirm in writing which arrangement you and the employee agree upon, to avoid confusion with Service Canada’s benefit rules.

In BC, the statutory entitlement is to one continuous parental leave. The employer can refuse multiple, non-consecutive leaves if they are operationally problematic. EI’s flexibility in benefit payment does not override provincial employment standards.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Accident after work hours #97049

This is a tricky situation, because liability depends on whether the incident is deemed work-related under workers’ compensation and occupational health and safety laws, which is why I once again recommend seeking out legal counsel.

If the employee was socializing independently after work, generally it would not be compensable under workers’ compensation. If the employee was entertaining or accompanying customers as part of their role—even outside regular work hours—there’s a stronger chance the incident could be deemed work-related. Many jurisdictions consider client dinners, events, or business-related socializing as “arising out of and in the course of employment.”

Employer Liability Risks

Workers’ Compensation Claim: If the injury is accepted as work-related, the employee’s medical care and wage loss would likely be covered by workers’ comp. In that case, your organization would generally be shielded from direct lawsuits (the “exclusive remedy” principle).

Denial of Claim: If the compensation board denies the claim (e.g., because it’s deemed a personal activity), the employee might try to pursue other legal avenues, such as alleging negligence or unsafe work expectations. However, these claims are harder to prove if the event was clearly outside employer direction.

Reputation & Duty of Care: Even if there is no strict legal liability, there could be reputational risks, especially if alcohol, late hours, or implied work obligations were involved. Employers are expected to set clear boundaries for “work-related” functions and safe conduct.

Key Risk Factors to Consider

Was the customer event sanctioned or encouraged by the employer?

Was attendance voluntary or expected?

Was alcohol or late-night socializing involved, and was the employee acting in a “work host” capacity?

Was there employer reimbursement for meals/drinks, or was it on company time/expense?

The more the answers lean toward work-related expectation or benefit to the company, the greater the risk of the injury being compensable and employer-linked.

Bottom Line:
If the employee was clearly “with customers” as part of their job—even after hours—there’s a significant risk this could be considered a work-related injury. That means your organization could face a workers’ comp claim. If it was purely personal, liability is low.

[Haley O’Halloran]

in reply to: Accident after work hours #97044

You’re right to approach this carefully—because the incident happened outside of work hours and there are gaps in the facts, you’ll want to handle the investigation in a way that is respectful, fact-based, and protective of both the employee and your organization. Here are some best practice considerations you can follow:

Clarify the Scope of the Investigation

Since the incident occurred after hours, focus your investigation on whether there was any connection to work (e.g., was the employee traveling for work, attending a work-related event, or otherwise engaged in employer-related duties).

Establish early whether this falls under workplace incident reporting (e.g., workers’ compensation) or if it is considered a personal injury outside of work.

Collect Factual Information (Not Assumptions)

When speaking with the employee:

Ask open, neutral questions such as:

“Can you walk me through your day leading up to the hospitalization?”

“Do you recall where you were, who you were with, or what activities you were doing?”

“Did you experience any symptoms or warning signs before the incident?”

Since the employee has memory gaps, also gather information from:

The hospital (with the employee’s consent).

Witnesses, coworkers, or anyone who was last with the employee.

Supervisor notes from when the employee called in.

Avoid questions that suggest blame or speculation (e.g., don’t directly ask about alcohol unless the employee volunteers it or you have documented third-party information).

Documentation Practices

Record dates, times, and facts only—avoid including opinions or assumptions.

Note who provided the information and when (e.g., employee statements vs. third-party accounts).

Keep medical information confidential unless needed for workplace health and safety or workers’ compensation reporting.

Communication with the Employee

Express concern for their health first—frame the investigation as a way to understand if there are any workplace obligations, not as a disciplinary matter.

Explain clearly:

Why you’re asking questions (to determine if it is work-related).

How their information will be used (for reporting and to ensure duty of care).

Liability & Risk Management

If alcohol or personal activity unrelated to work is involved, that generally places the incident outside employer responsibility—but avoid concluding this without proper documentation.

Consult with:

Your HR/legal advisor to ensure proper handling.

Your workers’ compensation board to clarify whether reporting is required given the circumstances.

Next Steps to Protect the Organization

Preserve records: flight bookings, supervisor notes, hospital confirmation (with consent), any emails or messages.

Notify insurers/compensation board if there’s any chance of workplace connection.

Stay neutral in documentation until all facts are established.

Ultimately, approach this as a fact-finding exercise, not a fault-finding one. Keep the scope limited to work connection, ask neutral questions, and ensure your records are defensible if reviewed later.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Unionization #97041

Of course Aleesha, I always enjoy speaking with you. Take care and I hope this advice was useful 🙂

[Author]

Posts