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in reply to: Answer for No evidence Sexual harrassment_Manitoba #87284
Yes, this is what I thought you were suggesting. And, yes, you still need to investigate the complaint. It’s not the employee’s burden to produce evidence to support a harassment complaint. His/Her only responsibility, other than acting in good faith, of course, is to provide you information and details that enable you to investigate yourself. At a minimum, that should include a description of the conduct and those who allegedly committed it. If there are absolutely no details, you should ask the employee for clarification. If he/she doesn’t provide those details, carefully document your request and the employee’s response and write a memo to files indicating that you’ve decided to close the case because of the employee’s failure to cooperate and furnish ample info allowing you to do an investigation. Does that help?
in reply to: Answer for No evidence Sexual harrassment_Manitoba #87283Hello Glenn,
Thank you for getting back to me. We are definitely going to investigate as per our normal procedure . My question was just asking whether a sexual harassments report that was issued to us within a resignation notice in which there does not seem to be any evidence to (there are no witnesses, no footage, no notes etc..) would still follow the same investigation guidelines. I assume it would as all reports/claims need to be investigated. I just thought HR Insider would be able to give me more information about what else to do whenever we have a claim where there are no witnesses nor any physical footage or documentation that can be used as evidence of the harassments. I hope this is clearer.in reply to: Answer for No evidence Sexual harrassment_Manitoba #87282How do you know there’s no evidence? Did you investigate the claim? If you did a proper investigation and found no evidence, you don’t have to take any action to resolve the matter other than notifying the employee of your conclusion. But if you didn’t look into the complaint and just think it lacks merit, you could be on shaky grounds, especially if you’re federally regulated. Even though Bill C-65 hasn’t yet taken effect, you’re still required to investigate a complaint and don’t have the leeway to dismiss it because you think it lacks merit. See the case summary below. I haven’t seen any case law from Manitoba addressing this issue but failing to take a complaint seriously without doing a little investigation is risky. Feel free to contact me at glennd@bongarde.com, if you want to further discuss this with me. Glenn
Must Employer Investigate Work Violence Claims that ‘Obviously’ Lack Merit?
A long running contention over a food inspector’s need for a special stand-up desk and extra time off to accommodate his work-related back injury came to a head when supervisors threatened violence. At least that’s what the inspector contended. But management concluded it wasn’t necessary to investigate because it was “plain and obvious” that no violence had occurred. A federal OHS inspector cited the employer for not appointing a “competent person” to investigate to investigate a workplace violence complaint, as required by Sec. 20.9(3) of the COHS Regs. The employer appealed, contending that the regulation had to have contemplated some kind of preliminary screening mechanism to avoid the need to investigate violence complaints that are plainly and obviously without merit. But the federal OHS tribunal disagreed, noting that neither the Code nor regulation mention anything about a screening mechanism or “plain and obvious” exemption. It’s up to the “competent person” and not the employer to review violence claims, the tribunal concluded [Canadian Food Inspection Agency v. Public Service Alliance of Canada, Case No. 2017-36, April 16, 2020].in reply to: Answer for Ontario – Termination #87281Good question and nice work for asking it because it indicates you understand the risks. Because the termination came before 3 months of continuous service, the employee doesn’t have any claim for ESA termination notice. However, she does have a potential claim for reprisal under Section 74, which also applies to probationary employees. The fact that she was terminated AFTER the vacation request raises the theoretical possibility that she got terminated BECAUSE of the request. And if she did file a claim for reprisal with OLRB, you would have the burden of proving that the termination WAS NOT a reprisal and that there was no link between the two things. Keep in mind that reprisal need only be ONE motive for an action. By the same token, if you can document that the decision was purely based on performance, you should be able to defend yourself against the charge with the help of a lawyer, of course. Hope that helps. Glenn
Sorry, I didn’t see your follow up question. I assume you’re not federally regulated and that Ontario law applies. My first question is whether the manager is even covered by the ESA. If he clearly exercises managerial functions, he’s not an “employee” and his leave rights are dictated by his contract/collective agreement and your employment policies.
Assuming that he IS an employee covered by ESA, the question of whether he’s entitled to emergency illness leave depends on WHY he must be home to care for the daughter. He would be entitled to leave if she has COVID, is in self-isolation or has been affected by a school or daycare closure. If she’s okay and her school/daycare is open, the manager would not qualify for emergency disease leave but may qualify for other forms of leave, depending on the circumstances.
If he does qualify for leave, it would be unpaid.
Final possibility is whether the manager has requested the schedule change as a reasonable accommodation based on his family/parental status. The question of whether you’d have to make that accommodation or whether it would impose undue hardship, would again depend on the facts. But based on case law, the manager would have to show a compelling reason why he has to be home with the daughter and why at that particular time. His mere personal preferences won’t be enough.
Does that cover everything? Pls do get me on gmail any time you have an urgent question since I don’t check Ask Experts as frequently as Gmail, and may not notice follow up questions as part of an existing thread. Good luck.My pleasure. Good luck with the redo.
Your template is fine as a letter offering employment. If it’s actually an employment contract, you should include all of the other key terms of employment, including sick days, stat holidays, bonuses, etc. You don’t necessarily have to spell them out in the document. You can just indicate that the employee has received and acknowledged the terms as set out in your HR policies and attach a copy as an exhibit to the agreement. You can also do the same thing for Code of Conduct.
Awesome! Without knowing all the facts, it sounds to me like the supervisor is being insubordinate. Just be sure you understand and can identify the job duty he/she is refusing. I should also mention that you need to respect the supervisor’s OHS rights if the refusal is a dangerous work refusal.
For purposes of the template, I would keep things simple by adding the following after “VACATION”.
LEAVES OF ABSENCE
You will be entitled to take all unpaid leaves of absence provided for in the Ontario Employment Standards Act and associated regulations provided that you meet the eligibility requirements and follow the notice and other procedures required for the particular leave of absence.
I’m assuming that this is a non-union employee and that the leave benefits are the minimum required by the ESA. If this is incorrect, you’d need to delete the ESA reference and substitute whichever collective agreement or contract providing for the more generous leave. Because there are so many different kinds of leave, I’d recommend not specifically referencing each one in the template.The basic question is this: What are the supervisor’s contractual job responsibilities? If you can establish that those job duties included “assisting during Salt season,” you have grounds to discipline the supervisor for not performing the duties of the job, which could include termination, depending on the circumstances. OK, so how do you show that the supervisor did, in fact, have such a contractual duty. Here are the basic theories to use, in order of preference:
First place to look is in the written employment agreement, assuming you have one. What to look for, in order: A. The contract expressly lists “assisting during Salt season” as one of the supervisor’s job duties. If that doesn’t work, go to B: The contract doesn’t spell out the specific job duties but incorporates them from the job description attached to the contract, and that job description lists “assisting during Salt season”; C. The contract or attached job description doesn’t list “assisting” but does imply it.
Theory 2: If the contract or attachment doesn’t spell out or imply “assisting,” you may be able to claim that the job description is an implied part of the contract. But you’ll need evidence that the supervisor saw and agreed to the job description before accepting the job offer. Best case scenario: He/She signed and dated the job description before starting the job.
Theory 3: You may be able to argue that you had an oral agreement on job duties, including “assisting.” Again, you’ll need evidence of this, which would likely include correspondence before and during hiring.
Theory 4: You may be able to argue that there was a mutual understanding that “assisting” would be part of the job, e.g., the supervisor knew that all of your supervisors are expected to “assist.”
Caveat: Even if you can use one of these theories to show the supervisor had a duty to “assist,” consider past practices. Has the supervisor worked for you during previous winters? If so, did you require him/her to “assist”? If you didn’t, the supervisor may be able to claim you waived your right to require him/her to “assist.”
Hope that helps. Glennin reply to: Answer for Salary Continuance – Alberta #87274This answer comes from our payroll expert, Alan McEwan, to whom I referred your Q. I hope it helps. Glenn
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The real issue here is when will the employment end? At the end of the “salary continuance” or a when separation agreement is reached.
This decision has both source deduction and Record of Employment reporting consequences.
The simplest thing is to treat the 1-year period as inactive employment, i.e. the person is getting paid what they would, but is not expected to work.
The year would constitute the notice period, no termination pay would be owing and an ROE would only be issued at the end of the year.
The downside of this is that the person would still be an employee, entitled to benefits, including potentially vacation pay.
If the employer wishes to severe the employment relationship immediately, then yes, the termination pay owing under the Alberta employment standards would have to be paid as a lump sum within 10 days. However, the “salary continuance” would be a series of retiring allowance payments, meaning no CPP, no EI and no benefits. A single ROE could be produced showing the sum of the retiring allowance payments to be made over the year in Block 17.There’s no specific notice requirement for wage cuts under Ontario ESA. Accordingly, the required notice depends on what your contract and HR policies say. If they don’t specify a notice requirement, look to organization practices and notice you customarily provide employees of changes to employment terms. At a minimum, I think employees should get notice of one pay period, although two would be better. Also be careful that your cut doesn’t violate minimum wage requirements or give rise to claims of constructive dismissal keeping in mind that courts and arbitrators are apt to see big cuts, e.g., 20% or more, as crossing the constructive dismissal line.
It depends, on part, on what that role happens to be. A general office worker should probably get the hang of things in a few days, while specialists may require months. Can you please be more specific about the position and skills involved? Thanks.
I sympathize for both you and the employee. True, the Canadian Human Rights Code does ban age discrimination. But the best way to approach this is as a question of performance rather than age. Specifically, if you can document that the employee isn’t performing up to legitimate expectations, you can take appropriate disciplinary and termination actions the way you would with any other employee who’s underperforming REGARDLESS OF AGE, race, sex, religion, etc. The key thing is being able to document that:
- You have clear and objective performance standards;
- You communicate those standards to all employees, including the gentleman in this case;
- You apply those standards consistently to all employees regardless of age, etc.
- Importantly, you give the employee adequate warning, including the possibility of termination, support and an opportunity to improve, which again should be based on objective, measurable and age-neutral standards;
- The employee has failed to achieve the necessary improvement despite your warnings and support.
More immediate action may be OK if the situation is urgent, e.g., the position is crucial and the employee’s performance is utterly egregious. BUT IN NO WAY WHATSOEVER SHOULD YOUR DETERMINATIONS AND CONCLUSIONS ABOUT THE EMPLOYEE’S ABILITIES BE BASED ON HIS AGE. If age is even one factor in your decision making, you can be found liable for discrimination. So again, focus purely on performance and not age. Hope that helps and good luck to all involved. Glenn
in reply to: Answer for COVID Testing #87270I apologize for the delay. I actually did answer your question last week. But when the site shut down, it apparently erased my response. And I didn’t realize that until just now. So, here’s my response again.
No. Employees don’t have to tell employers anything about their private medical care if it doesn’t pertain to the workplace, which would be the case if they test negative. Things get a bit more tricky if they test positive. Employees ARE supposed to tell their employers if they have COVID. You also need to screen them to ask about symptoms, recent exposure, etc. If they withhold that information, it’s grounds for discipline. Not only that but you also have to do contact tracing and tell recent exposures, i.e., people with whom the employee who tested positive had contact closer than 6 feet/2 meters at the workplace in the past 48 hours, that THEY may have been exposed to COVID and should self-isolate and get tested. If possible, disclose that info without revealing the employee’s name or other identifying info. “A person with whom you recently had close contact tested positive for COVID,” NOT “John Doe recently tested positive for COVID.”
But, again, the simple fact of being tested isn’t something an employee must disclose. If you ever find yourself waiting on my response again, please feel free to contact me directly at glennd@bongarde.com. Nobody should ever have to wait 2 weeks for a response. Nobody. -
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