[vickyp]

in reply to: Answer for How long does an employer have to hold an employee’s position / employment if they are off on a non-work related leave #87314

First and foremost, you need to talk to a lawyer. This is a case not a question and I’m not allowed to provide the legal counsel you need to deal with it right now.
Here’s what I can offer in the way of general guidance–as opposed to legal advice. The starting point is that ABSOLUTELY 1000% YES–you WOULD be exposing your organization to potential liability for wrongful dismissal and disability discrimination. For one thing, I’m not sure I understand your reasons for termination. Are you saying the employee has been dishonest? If so, you need to thoroughly document this with specific incidents. What questions did you ask? What answers did he give? Have you consistently treated all employees in similar situations for similar misconduct?
If grounds for termination is lack of physical capability to do the job, you need to perform a thorough medical evaluation. Did you perform one when you hired him? If so, what has changed since then? If not, why DIDN’T you do such an evaluation? There are a lot of red flags here.
Bottom Line: I strongly suggest you refrain from making any decisions in regard to termination until you talk to and get advice from a lawyer. These are shark infested waters you’re wading into. Good luck and feel free to contact me at glennd@bongarde.com

[vickyp]

in reply to: Answer for Employee on suspension applied for STD #87313

Good call, Sonia. You sound like just the kind of HR person any company would be privileged to have. Glad I could be of help.

[vickyp]

in reply to: Answer for Social Insurance Number request #87312

Here you go. This comes from Alan McEwan, our payroll guru.
Yes, employers don’t actually require an employee to have a SIN on hire.
Within 3 days of hire, employees have to provide their SIN to the employer.
Within 6 days of hire, if the employer has not received a SIN, that fact has to reported to Service Canada.

[vickyp]

in reply to: Answer for Social Insurance Number request #87311

Good question. Let me ask our payroll expert, Alan McEwan. I’ll let you know as soon as I hear back.

[vickyp]

in reply to: Answer for Employee on suspension applied for STD #87310

Wow. Tough question. Denying STD to an employee with a disability could very well raise a red flag under human rights laws. It could also violate your employment contract and benefits policies. So, I guess the first thing I’d want to know is what’s at stake? In other words, if you can avoid the question simply by starting her on STD without waiting for the 3 days, maybe you should just to be safe.
If there is something more than meets the eye and those 3 days have some kind of significance, the question of whether the employee can go on STD before completing her suspension will depend on the terms of: 1. Your progressive discipline policy; and 2. the terms of the STD plan. If those policies allow you to wait until the suspension is over, you should be OK, as long as you consistently treat other employees in the same situation the same way. But if the STD entitlement does supercede the suspension, sticking to your guns on insisting she finish the suspension first increases your disability discrimination liability risks.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for We are a new small manufacturing facility in Ontario experiencing rapid growth – we want to move from two eight hour shifts to two twelve hour shifts – what are the obligations to our employees? #87309

First of all, congratulations for your growth! I’m assuming that the employees affected by the schedule changes are NOT represented by a union. If they are, you’ll need to abide by the hours requirements of the collective agreement and negotiate any schedule changes with the union.
If the employees aren’t unionized, it’s a matter of complying with the Ontario Employment Standards Act and Regs (I’m assuming your company is NOT federally regulated). Under Sec 17 of the ESA, you can’t make or allow workers to work over 8 hours per day UNLESS you make a written or electronic agreement with employees establishing a regular work day of longer than 8 hours.
To do that, you must first give the affected employees the most recent information sheet for employees about hours of work and overtime pay from the Director of Employment Standards that describes the hours of work and overtime pay rules in the ESA. The agreement must also include a statement in which the employee acknowledges receipt of the information sheet. In most cases, an employee can cancel an agreement to work more hours by giving the employer two weeks’ notice in writing or electronically, while an employer can cancel the agreement by providing reasonable notice. Once the agreement is revoked, an employee may not work hours beyond the limit the agreement sets.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Modified Work Arrangement and Overtime #87308

Sorry for the delay, but Alan clarified that the payment obligations are dictated by the terms of the Modified Work Arrangement. So follow those provisions. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Modified Work Arrangement and Overtime #87307

Let me run this one by our payroll expert, Alan McEwan. I assume you’re NOT federally regulated, i.e., that you’re subject to Sask Employment Act, rather than Canada Labour Code. If this is wrong, please email me right away at glennd@bongarde.com, since this will affect the answer. Thanks.

[vickyp]

in reply to: Answer for Vacation pay wording 2 weeks verses 4%. #87306

You too, Mirella. And stay safe.

[vickyp]

in reply to: Answer for Vacation pay wording 2 weeks verses 4%. #87305

Alan just responded and he suggests that there are big problems with the language. Here’s his response:
There are red flags all over the place.

1. Ontario also has a requirement for 3 weeks after 5 years.
2. Service should be limited to active service.
3. Even for salary employees, there may be earnings that mean 2 weeks pay isn’t enough. 2 over 52 is less than 4%.
4. Discipline if the minimum employment standards vacation time off is not taken.

[vickyp]

in reply to: Answer for Vacation pay wording 2 weeks verses 4%. #87304

I’m going to run this one past our payroll expert, Alan McEwan. I’ll let you know as soon as I hear back from him.

[vickyp]

in reply to: Answer for Ontario – Voluntary Lay Off During COVID-19 #87303

Under Ontario COVID emergency orders, you can avoid permanent termination by putting the employees on unpaid Infectious Disease Emergency Leave until July 3, 2021. During that period, you don’t have to make employer contributions to their benefits plans, as long as you weren’t making such contributions when they were first temporarily laid off. The employees can’t sue you for constructive dismissal because of being on temporary layoff while the order is in effect–at least under the ESA.
So, July 3 is pretty much D-Day for return to work–unless the government extends the deadline again (it already has twice). You’re free to encourage them to return any time before that but you can’t force them to do so. Of course, you also have the option to make the temporary layoff permanent if you’re willing to pay the required termination notice and other ESA entitlements. Hope that answers your question. Glenn

[vickyp]

in reply to: Answer for How to remove an underperforming team lead from their position? #87302

That’s what I thought. Although that doesn’t change the approach and legal principles, it certainly lowers the stakes. You probably don’t need to talk to a lawyer as long as the team leader isn’t in a union and the manager reads and follows the suggestions in my first response. Even though it’s not as risky as termination, demotion is still problematic and can result in a grievance, lawsuit or legal challenge (or, if the situation deteriorates, become part of such a challenge involving the team leader later on.) Have a great weekend and thanks for the excellent question.

[vickyp]

in reply to: Answer for How to remove an underperforming team lead from their position? #87301

By “remove,” do you mean terminate or simply demote? The principles are the same, but the stakes and risks are greater if we’re talking about termination.
First and foremost, it’s always highly desirable to talk to a lawyer before you fire or demote an employee, especially if the employee belongs to a union. I’m neither qualified nor allowed to offer you the legal counsel you need, especially since I don’t know any of the facts or what your HR and disciplinary policies say. What I can offer is a general analysis of the legal principles involved.
There are 2 parts of ensuring that discipline, demotion and/or termination is legally sound:
Part 1 is the substance of the legal case. Specifically, you must be able to show that the team leader failed to meet your standards for attendance and performance. And that means that you must actually have such standards, preferably (very preferably) in writing and that you clearly communicated them to your employees, including the team leader. You must then be able to document the things he/she did or didn’t do to meet those standards. You need records of dates, times, descriptions, explanations, resolutions, etc.
Part 2, which is just as important is procedure. Performance and attendance issues are almost always dealt with via progressive discipline (as opposed to violence, theft and other egregious violations that may merit termination or severe discipline even as a first offence). You must show that you have a progressive discipline policy and that you followed it in dealing with the team leader. That means warnings and perhaps intermediary discipline like suspension or demotion–based on what your policy provides. You must also be able to show that you have been consistent in meting out progressive discipline to other employees who committed the same offences. Consistency is particularly imperative if the employee belongs to a class protected against discrimination under human rights laws–race, religion, age, sex, disability, etc.
I also suggest searching the HRI site. There’s tons of material about progressive discipline, attendance and performance. Here’s a link to get you started.

Managing Absenteeism: 8 Things to Include in Your Attendance Management Program

I hope this helps and I want to again urge you to talk to a lawyer if you can–especially if you’re planning to terminate rather than just demote the team leader. Good luck. Glenn

[vickyp]

in reply to: Answer for Inter-Provincial Employment Standards #87300

Does this answer your question?
Yes, there must be an averaging agreement that covers all employees who work in Alberta, even those whose work in SK would be covered by an agreement in that province.
The good news is that so long as the employer meets the requirements of the Alberta legislation, employees who work in Alberta are subject to such an averaging agreement on 2 weeks written notice, or if it is part of the terms and conditions of employment on hire. Employee consent is not required.

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