Forum Replies Created
-
AuthorPosts
-
in reply to: Answer for Travel Time as regular work hour #87183
Apologies for the delay in responding. This from our payroll expert, Alan McEwan:
There isn’t any jurisdiction that has legislation that defines what work is precisely.
However, as a rule of thumb, particularly for hourly paid employees, if an employee has to report for work a location specified by the employer and is then transported to the actual work site, the travel time is considered work. It isn’t as clear whether travel time for salaried employees, i.e. flying to another city to work on a temporary basis, would also be enforced as “work time” by most employment standards.First, check out this HRI piece about the general employer liability risks of coronavirus. https://hrinsider.ca/compliance-briefing-the-4-kinds-of-coronavirus-control-measures-required-by-law/
1. Probably not because of workers’ comp ban on injured/ill workers’ suing employers for negligence. Yes, Form 7 required if worker contracts CV at work and:- is absent from regular work and/or
- earns less than regular pay for regular work (e.g., part-time hours) and/or
- requires modified work at less than regular pay and/or
- requires modified work at regular pay for more than seven calendar days following the date of accident
2. Yes. Workers’ comp bar on negligence lawsuits doesn’t apply to third parties, including customers, visitors, etc.
3. No because of workers’ comp bar on negligence suits by workers against employers. But you would still face potential liability under OHS, public health and other laws–just not a negligence lawsuit by a worker for money damages in civil court
4. This Q is the hardest one. Clearly, you not only can but must shut down if you’re ordered to do so. The approach you outline sounds reasonable but the rules are highly fact-specific and I can’t really assess whether your solution works without knowing much more about the situation, including whether there are any applicable collective agreements, your HR policies, the number of employees affected, etc.
Hope this helps and feel free to follow up. Glennin reply to: Answer for Hours worked with multiple employers #87181This is a problem because workers in Alberta aren’t allowed to work more than 12 hours per day except in emergency circumstances.
ESC Hours of work confined
16(1) An employer must confine an employee’s hours of work within a period of 12 consecutive hours in any one work day unless
an accident occurs, urgent work is necessary to a plant or machinery, or other unforeseeable or unpreventable circumstances occur.So, if the “unless” clause of Sec. 16(1) doesn’t apply, SOMEBODY is committing an ESC violation–and that’s probably going to be you if your the worker’s employer. Yes, you have the right to limit the number of hours your employees work for third party contractors. In fact, you have the DUTY to do so. The way to carry out that duty is through the contract with the contractor which should stipulate that the contractor and the work must comply with all applicable laws, including but not limited to the ESC and OHS Act, Regs and Code. Even if your contract doesn’t say this, you need to step in and put a stop to the practice of 16 hour days and ensure that no worker is going beyond the 12-hour daily limit (unless one of the Sec. 16(1)) exceptions applies.
Apologize for taking so long to respond. Was a bit ailing last week. Please do as I say and not as I do and take care of this right away. Thanks. Glennin reply to: Answer for Quebec – Banking time #87180Forgive me for the long delay but there was some confusion and miscommunication on our end. Our payroll expert, Alan McEwen, advises that you can engage in overtime banking in Quebec as long as the employee agrees. Sorry again to keep you waiting. Glenn
You can make your life easier by implementing a standard no-pets policy, subject to accommodations for employees with disabilities. The moment you allow everybody to have dogs, you subject yourself to legal claims from the employees with allergies. But if you do go the latter route and are prepared to accommodate the allergic employees, you have the right to insist they provide a doctor’s note or other verification of the disability/allergy and their need for accommodation. At the end of the day, you really need to weigh the advantages of letting people bring dogs to work and whether it’s worth all the hassles. Hope that helps. Fun conversation. Glenn
This from our payroll guru who is far more concise than me:
BC, no
AB, 12 hours/day, except in case of emergencies
ON, no work past 8 per day or 48 hours per week, without consent
QC, no limit on hours worked, but limits on mandatory overtime
PE, no
NS, noin reply to: Answer for Overtime #87172My payroll guy, Alan McEwan, sent me the following response: All of the assumptions are correct and overtime would be owing in the circumstances described.
Hope that helps. GlennGET A LAWYER!!! You need someone to draft a carefully worded release clearly setting out the terms of the severance arrangement and ensure it’s properly executed. Make sure the employees properly release you from all claims. Urge the employees to carefully read the document and have it reviewed by their own lawyer. Again, PLEASE don’t try to be a hero and do this on your own. I’ve seen countless cases where employers have been sued–often successfully–by an employee with whom they thought they had a legally binding settlement and release agreement. So many ways to void these things, including what’s called “unconscionability.” So, no foolin’ around. Get a lawyer to help you with this. Glenn
Wow, there’s a lot going on here.
First, you recognize that accommodating disabilities may require exemptions from a no-pets policy. Starting point is that employee must actually have a disability. You have the right to request documentation confirming the disability, e.g., a doctor’s note.
Next comes the question of the dog. The AODA applies to a guide dog or “service animal” and person requesting accommodation must provide a letter from a qualified “regulated health professional” confirming the animal is a service animal. But Ontario human rights law is much broader and applies to a “guide dog or OTHER ANIMAL.” No confirmation required. So if your employees can document their disabilities, they may be entitled to bring their dogs even if they’re not certified service animals.
Now comes the tricky part. Accommodations must be reasonable and not impose undue hardship. And Employee A’s reasonable accommodation may be allergic Employee B’s hardship. In this situation, you can’t pick sides. Instead, you have to BALANCE the needs of both the individuals involved, e.g., let A have the dog but require her to stay X distance from Employee B.
Couple of final points: 1. Employees without disabilities don’t get to bring their pets just because a disabled co-worker can; and 2. The fact that “everybody will want to bring their dog to work” is NOT undue hardship justifying refusal to accommodate a guide dog or service animal.
Hope you got all that. Good luck and feel free to follow up. GlennFrom our payroll guru, Alan McEwen:
The real question is does the manager have authority to bind the employer.
If the answer is no, then it is as if nothing has happened.
The manager should probably be subject to some form of discipline.
If the manager had no authority, then the pay raise does not have to be honoured, particularly if the employee knew there was no authority for this.
****
Hope that helps. Glennin reply to: Answer for Interview Question #87169Basic rule: You can ask about abilities but not disabilities. Once you offer the job, you can ask medical questions or request medical information to determine the applicant’s need for accommodations.
What You CAN’T Ask
What You CAN Ask
§ Do you have any physical/mental disabilities?
§ Do you have X illness or disability?
§ Do you have any health problems?
§ Do you have a disability that would interfere with your ability to perform the job?
§ Are you in good health?
§ Have you ever been treated for alcohol or drug addiction?
§ How much alcohol do you drink each week?
§ What medications do you use?
§ Have you ever been treated for emotional or psychiatric problems?
§ Are you under a doctor’s care?
§ Are you receiving counseling or therapy?
§ Do you have any allergies?
§ Have you ever received workers’ comp?
§ How many sick days did you take last year?
§ Describe essential requirements of the job, as specified in the job ad and job description and ask if applicant can perform them with or without reasonable accommodations
§ Describe or demonstrate how you would perform the essential functions of the job
§ Can you meet the attendance requirements of this job?
§ Do you use any legal or illegal impairing or intoxicating drugs?
This Q comes up all the time and I’ve tried sending this chart before. Sometimes it doesn’t format right. If that’s the case in this situation, send me an email and I’ll attach a word version of the chart to my reply. glennd@bongarde.comThere’s nothing in employment standards laws barring such a demotion and/or pay cut. The chief legal risk is for breach of contract. But as long as there’s nothing in the contract guaranteeing the employee his/her current position or salary, that shouldn’t be an issue. Still, to feel comfortable in the event of a legal challenge, you should be able to show that:
.> You have fair and reasonable performance criteria;
> You communicated those criteria to the manager;
> You applied the criteria fairly;
> The manager really did have performance issues that he/she couldn’t correct despite being given a fair opportunity to do so; and
> You apply the same criteria and procedures consistently (in case the manager has one or more personal characteristic protected from discrimination by human rights law, e.g., a disability).
Hope that helps. Glennin reply to: Answer for Labour Law #871652 Ontario labour cases with Millhaven in their title:
- Communications, Energy and Paperworkers Union of Canada and its Local 9670 v. Celanese Canada Inc. – Millhaven Plant, 2000 CanLII 3651 (ON LRB)
2000-08-24 | 1 page
consents — adjourn — die — exceeding — requests
Communications, Energy and Paperworkers Union of Canada v. Ashwarren Millhaven Plant, 2000 CanLII 4738 (ON LRB)
2000-10-25 | 1 page
vote — application for certification — constituency — employees — bargaining
There are also 2 labour cases in BC with Gooding in the title:
Gooding v. Amalgamated Transit Union, Local 1724, 2011 CanLII 4554 (BC LRB)
2011-02-03 | 5 pages
trade union — picket pay — discriminatory manner — members — contravened
Gooding v. Amalgamated Transit Union, Local 1724, 2011 CanLII 4552 (BC LRB)
2011-02-03 | 18 pages
members — lump sum payment — strike — distribute — receipt of picket payHope this is what u were looking for. Glenn
in reply to: Answer for Returning From Maternity Leave #87164I assume by “maternity leave,” you mean parental leave. (Technically, there’s no such thing as “maternity leave” in Ontario. Moms can take pregnancy and then parental leave.)
Return date should be 61 or 63 weeks after leave began. Explanation: Ontario ESA requires employees to give at least 2 weeks’ written notice before beginning parental leave listing the START DATE. Although not expressly required, MOL guidance “strongly advises” employees to also list how many weeks of parental leave they plan to take. https://www.ontario.ca/document/your-guide-employment-standards-act-0/pregnancy-and-parental-leave#section-2 If they don’t provide that info, you have to assume they’re going to take the full 61 weeks (63 weeks if they also took pregnancy leave) to which they’re entitled. So that’s the return date in your case. Technically, the employee could come back sooner if she gives you at least 4 weeks’ notice, but that’s not really relevant to your situation.
Notice of Resignation: Under Sec. 49(4), an employee on leave who decides to resign must provide the employer 4 weeks’ written termination notice.
Contacting Employee: ESA doesn’t address this, but you are generally allowed to contact employees on leave for legitimate employment-related purposes, including figuring out their return date. Just gotta be sensitive, professional and use common sense about how you do it.
Hope that helps. GlennSheryl: Just found this analysis which relates to the Q you asked me a few weeks ago. Glenn
****
When it comes to suspicions of misconduct, we often recommend that the employee be removed from the workplace during the investigation. We would typically advise characterizing this as an administrative leave rather than a suspension, since a suspension, particularly without pay, can be perceived as disciplinary in nature. That is generally frowned upon since it presumes guilt.
The purpose of the investigation is to determine whether or not the employee engaged in misconduct, so disciplining them first is inconsistent with any notion of procedural fairness and can expose the employer to liability.
Ontario court looks at constructive dismissal
This issue arose in Hookimawillile v. Payukotayno James and Hudson Bay Family Services. Ultimately, the Ontario Superior Court of Justice held that the employee in question had been constructively dismissed when she was suspended without pay.
Cheryl Hookimawillile worked for Payukotayno James and Hudson Bay Family Services as a services supervisor, a managerial position. On April 26, 2017, she was suspended without pay pending the outcome of an investigation into a child’s death.
On May 12, 2017, Hookimawillile’s lawyer wrote to Payukotayno alleging that her suspension without pay was a constructive dismissal. Two weeks later, Hookimawillile received a termination letter dated May 17, 2017. The letter stated that she had been on an administrative suspension and was being terminated for cause. It also stated that Payukotayno was relying on Hookimawillile’s past job performance and conduct as grounds for termination.
As a result, Hookimawillile brought an action against Payukotayno for wrongful dismissal, claiming that she had been wrongfully (constructively) dismissed and was entitled to the entire unexpired term of the employment contract. Notably, management employees were employed pursuant to a series of short-term contracts. Hookimawillile‘s most recent contract began on April 1, 2016, and was to be terminated on March 31, 2018.
Supreme Court of Canada test
In deciding whether Hookimawillile was constructively dismissed, the judge relied on the test set out in Potter v. New Brunswick Legal Aid Services Commission. In that case, the Supreme Court of Canada held that an employee has been constructively dismissed “when the conduct of an employer evinces an intention no longer to be bound by the employment contract.”
There are two branches of the test that have emerged to determine whether the employer’s conduct evinces an intention not to be bound by the contract. The first branch requires the court to identify whether an express or implied term of the contract has been breached, and then determine whether the breach was “sufficiently serious” to constitute constructive dismissal.
Under the second branch, an employer’s conduct will “constitute constructive dismissal if the employer’s conduct when viewed in light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract.”
The judge found that Hookimawillile’s suspension without pay was unauthorized and in breach of the employment contract, which did not contain any provisions for administrative suspensions. The judge further found that the indefinite suspension without pay was a fundamental and substantial change to Hookimawillile’s employment contract.
It prevented her from fulfilling her responsibilities, as well as depriving her of an income, two elements that are the very core of an employment contract. The judge held that a reasonable person in the same position as Hookimawillile would have also concluded that their employment had been terminated.
Although Payukotayno attempted to assert that it had just cause for dismissal and dismissed Hookimawillile for cause on or about May 17, 2017, the judge held that Payukotayno could not retrospectively dismiss Hookimawillile for cause. Payukotayno may have been justified in dismissing Hookimawillile for cause if the misconduct was discovered after the constructive dismissal. However, Payukotayno was aware of the issues with Hookimawillile’s job performance prior to April 26, 2017. That cannot constitute after-acquired cause.
As this was a fundamental breach of the employment contract, the judge held that Payukotayno could not rely upon the termination clause of the employment contract it repudiated. Hookimawillile was, therefore, awarded damages in the amount of $108,973.15, representing the full value of the time remaining on her contract. -
AuthorPosts
