[vickyp]

in reply to: Answer for Short-Term Disability Benefits (as salary continuance) Vacationable? #87133

I directed your Q to our payroll expert, Alan McEwen. Here’s his reply. Hope it helps and feel free to follow up. Glenn
My short answer is yes this time would be vacationable.
Two points to look into further:

1. Do they literally keep employees on regular salary, while they are off on a leave, i.e. the pay statement says salary not short-term disability?
2. What does the contract of employment say about the right to vacation during inactive service. If it’s silent on this, then for sure vacationable.

[vickyp]

in reply to: Answer for Vacation – Use it or lose it policy Ontario #87132

Employees can lose their vacation time by failing to take vacation BUT employees cannot lose their vacation pay. This is often misunderstood. Many employers have a “use it or lose it” policy with respect to vacation. But this simply means that an employer can require an employee to take vacation time or lose the vacation time but this does not alleviate the employer’s obligation to pay that employee the vacation time.  For example, when a salary worker who is entitled to 2 weeks’ vacation time per year but fails to take the 2 weeks’ vacation time, and his/her employer does not force him/her to take the vacation time, the employer is required to pay the employee an extra 2 weeks’ pay.
Ontario’s Employment Standards Act, 2000 (“ESA“) provides a minimum  entitlement of 2 weeks’ vacation time to all workers to be paid at 4% of gross wages. Employers and employees can agree to more but not less. Some employed persons are exempted from the ESA such as some qualified or registered practitioners (for example, architects, lawyers, accountants, dentists, massage therapists, pharmacists, and others).

[vickyp]

in reply to: Answer for Lieu Time for Managers in Ontario #87131

A common misconception is that salaried employees are not entitled to overtime. No such exception exists. Whether an individual is paid an hourly wage or an annual salary in no way impacts their eligibility to receive overtime pay.
Managers and supervisors are among the categories of employees who are not entitled to receive overtime pay, even if they work more than 44 hours in a week. However, the title of “manager” or “supervisor” does not automatically exempt an employee from overtime pay. Rather, it is the character of the work performed by the individual that must be considered. What many don’t realize is that managers or supervisors will retain their entitlement to overtime if they perform non-supervisory or non-managerial tasks on more than an irregular or exceptional basis.
Employees are regularly told that they are not entitled to receive overtime pay because they did not receive prior approval from the company for the extra hours worked. In these cases, companies will often point to clauses in employment agreements or policies that state that prior approval is necessary for overtime hours. This is false.
Pursuant to the law, work hours include activities performed by an employee for the employer, even if the employment contract or a policy forbids or limits hours of work or requires the employer to authorize extra hours of work in advance. If an individual is required to complete a task that legitimately requires him or her to work overtime hours, he or she is entitled to receive overtime pay even if the employer did not approve the additional hours. However, employees must be mindful that failure to follow an overtime policy could, in some circumstances, be a disciplinary issue.
What you pose is a very interesting issue, however, because there is no record of the agreement of time in lieu, and the director is no longer with the company. Unfortunately, case law shows that the burden of proof is on the employer to show that this agreement was not in force. You may want to negotiate a settlement in this case and amend your policy to reflect a maximum overtime allotment without formalized written consent.

[vickyp]

in reply to: Answer for Overtime #87143

Thanks for the reply. An employee wouldn’t be eligible for time off in lieu until they crossed the 44 hour threshold correct? That would just be up to the discretion of the employer to give time off, if they worked extra hours but not enough hours for overtime.

[vickyp]

in reply to: Answer for Who can access employee files? Is Sr. Management i.e., the president, employee managers alowed to see the entire file – as in guarnishments, medical information etc? #87130

You should always treat personnel files just like any other private documents within the company. Normally personnel records are kept within a locked file cabinet that only certain people have access to. You should make sure that these files are only available to the people that have a legitimate and valid reason to look at the files.
As a suggestion, you may want to set up a company policy that the only people that are allowed to access an employee’s personnel record are the human resources manager, the employee’s supervisor or manager, and the employee himself. By setting up such a policy, you will protect the confidentiality of these files, your employee’s privacy and also limit the opportunities for false documents to get into the files. In addition, by having a policy in place, you have the right to discipline anyone that breaks the policy.
Since, like everything else these days, employee personnel files are likely to be available in electronic form, your policy should also address who has access to the databases where employee records are kept. You should limit electronic access to those people and groups listed above.

[vickyp]

in reply to: Answer for Does modified work have to be offered to accommodate employees injured outside of work? #87129

As an employer, you have a duty to accommodate employees with disabilities and injuries, unless it would cause undue hardship, even if their injury is not work-related.

[vickyp]

in reply to: Answer for Aging Workforce #87128

I would highly recommend the following resources for some guidance on managing an aging workforce and some productivity issues:

1. https://alis.alberta.ca/media/2894/agingworkforce.pdf
2. https://www.brookings.edu/blog/up-front/2013/06/10/is-an-aging-workforce-less-productive/
3. https://www.bankofcanada.ca/wp-content/uploads/2010/09/beach.pdf

 

[vickyp]

in reply to: Answer for Overtime #87126

Labour laws differ from province to province. Usually though anyone who works more than 40 to 44 hours per week is owed overtime. The rate for this is one and a half times the standard amount. The law makes few distinctions about who qualifies.
It’s commonly thought that only hourly workers are eligible. In truth everyone, even if on salary or commission, is technically owed compensation for extra hours worked, unless exempted by law.
If an employee has managerial responsibilities, they generally do not qualify for overtime. Neither do professions such as lawyer, dentist and architect.
In general travel time is not considered to be hours of work for the purposes of the Code. While there may be specific industry regulations or collective agreements that allow travel time as hours of work, these must be considered on a case-by-case basis.

When considering whether travel time is work, the following principles should be taken into account:

• Whether travel is an integral part of the job;
• The degree of direction and control exerted by the employer;
• Responsibility for the employer’s vehicle and/or equipment during travel.

See: Canadian National Railway and Canadian Telecommunications Union, 1978 [1978] O.L.A.A. No. 11

See: Ontario Public Service Employees Union (Daye) v. Ontario (Ministry of Natural Resources) [2008] O.G.S.B.A No. 40(QL)

Travel time could be considered work in the following cases:

• if the employee takes a company vehicle home in the evening for the employer’s convenience;
• if the employee is required to transport other staff or supplies to or from the work place or work site; and
• if the employee has a usual work place but is required to travel to another location to perform work.
• if the employee is required to travel to different sites to carry out his functions, notwithstanding the fact that he does not drive the employer’s vehicle during such travel.

Travel time is not considered work while commuting to and from the usual work place. It is well accepted that the time required by an employee to get to and from work – commuting time – is generally not considered work time regardless of whether the employee starts and ends his day at his residence or at the employer’s lodging.

See: Lance Boot and Herzog Railroad Services of Canada Ltd. (YM2727-3387)

See: Noah Allison v. 3359492 Canada Inc. o/a Meeker’s Aquaculture o/a Blue Goose (2016 CanLII 3622 (ON LRB))

[vickyp]

in reply to: Answer for Doctor’s notes #87125

Unless there’s something going on that I don’t know about, the answer is NO. The legal analysis: The employee is asking for an accommodation for a disability. You’re required to make reasonable accommodations to the point of undue hardship. You’re entitled to request a medical assessment of the employee’s capabilities so you can determine which accommodations to make. The employee is required to cooperate in the accommodation process by providing the requested information–as long as the information is relevant to and no more than necessary to make the assessment. If the employee refuses to cooperate, undue hardship is reached and you don’t have to make accommodations.
Advice: Keep careful records documenting your requests and employee’s failure to provide the info in case you’re challenged in court or arbitration. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Previous case question – Service Canada Employment Insurance Ruling #87127

It wasn’t a dream. You’re talking about the Alexander case and “issue estoppel.” I’ve pasted a Word version of the April 2019 article in which the case was discussed. You can also find it on the HRI site.
***
Navigating the Employment Insurance (EI) system is part of the termination process. That’s because employers must provide an explanation for employees who no longer work. The problem is that in completing the EI paperwork and going through the claims processing system, you may say things about the reasons for termination that come back to bite you in the behind later. The risk stems from a legal principal called “issue estoppel” that many employers don’t learn about until after they get socked with a wrongful dismissal damages award. Here’s a look at the trap and how to avoid it.
ROE Filing Requirements  
To explain issue estoppel, we need to discuss the Service Canada EI reporting rules which require employers to file a Record of Employment (ROE) within 5 days of termination (or within 5 days of the following pay period end if the ROE is filed electronically. In either case, employers must also provide a reason for the employee’s leaving in Block 16 of the ROE—either M for dismissal or K for other.
The EI Claims Determination Process
Stage 1: Regardless of whether you list code M or K in ROE Block 16, the employer can expect a call from a Service Canada agent asking whether the termination was due to the employee’s misconduct or reasons having nothing to do with his/her behaviour. The Service Canada agent will also contact the employee and give him/her the chance to explain why the employment was terminated. The separate versions of each party are among the information the agent relies on to determine if the employee is eligible for EI benefits. If the agent determines there was employee misconduct, the claim will be denied. If the agent finds no misconduct (or that misconduct occurred but wasn’t the reason for dismissal), EI benefits will be granted.
Stage 2 and beyond: After this decision is reached, the EI process becomes more formal and judicial, i.e., court-like in the sense it unfolds as a series of appeals to different tribunals each of which applies legal principles to decide the issue. The process begins when and if a party to the Service Canada decision makes an appeal to the Social Services Tribunal. An SST member then reviews the Service Canada decision and renders a ruling that either party may contest it to another member in the Tribunal’s appeal division. Thereafter, decisions can be appealed to the Federal Court of Appeal and from there to the Supreme Court of Canada.
The Alexander Case
Keep in mind that if the terminated employee files a claim for EI benefits—and not every terminated employee does—the EI claim is settled well before any employment standards complaint or civil action stemming from the termination that the employee might bring. A recent arbitration ruling in a Canada Labour Code wrongful dismissal lawsuit illustrates the unforeseen and potentially damaging consequences employers face as a result of this timing.
The case involved an employer that didn’t provide an employee it fired any reason for termination at the time of termination. When questioned by the Service Canada agent, the employer simply stated the employee wasn’t meeting expectations. But it provided no real evidence or details to support that statement. Service Canada found no evidence of misconduct and granted the employee EI benefits. It also sent the employer a notice from Service Canada explaining how it could appeal the decision and finding of no misconduct. But the employer took no steps to appeal.
That decision came home to roost when the employee later filed a wrongful dismissal claim against the employer under the Canada Labour Code. The employer denied the charge and argued that the employee had been terminated for misconduct—at least it tried to. But the adjudicator ruled that the that in the course of deciding the EI claim Service Canada had already decided that the termination wasn’t due to misconduct. As a result, the employer wasn’t allowed to re-argue that point in this case.
The Dreaded Issue Estoppel Pitfall
In technical terms, the adjudicator cited “issue estoppel,” the legal principal that once one tribunal makes a decision on a particular fact, the issue can’t be reargued in another tribunal. In this case, Service Canada’s finding that the employee wasn’t terminated misconduct, “estopped” the employer from arguing that he was terminated for misconduct in the wrongful dismissal proceeding. And once stripped of the “misconduct” defence, there was nothing the employer could do to avoid having to pay the employee wages in lieu of notice and severance pay for wrongful dismissal under the Canada Labour Code [Huron Commodities Inc. v Alexander, 2019 CanLII 11915 (CA LA), Feb. 14, 2019].
Takeaway
The moral of this story: Recognize that the way you characterize an employee’s termination during the EI process can be held against you in a later case arising from the termination. More precisely, if you say on the ROE or to the Service Canada agent during the EI process that an employee wasn’t dismissed for misconduct, you may be unable to reverse course and claim there was misconduct if the employee later sues you for wrongful dismissal.

[vickyp]

in reply to: Answer for Changing a Administration Manual and Personnel Policy #87124

First of all, sorry for taking so long to get back to u. I somehow missed your Q when I last did a mail check.
Instead of re-executing all of your employment contracts, I’d suggest having each employee sign an acknowledgement indicating that they’re read and understood the new Policy. Might be a good idea to distribute a memo explaining the significant changes before getting them to sign. Also suggest you add language to the part of your employment contract template in which employee agrees to be governed by the Policy “including such amendments made by the Company from time to time at its sole discretion,” to cover yourself for future changes. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Staff and others are making an observation that one employee is having periods of memory lapse & also on occasion displaying some moodiness or rudeness with customers that they do not recall. As an employer and using HR best practices what wisdom would you have in how to approach this situation and possibly even looking at whether she is able to continue functioning in her role? #87123

Very carefully. You got a bunch of legal landmines here, including risk of liability under privacy and discrimination laws. Suggest approaching her in a non-disciplinary, non-confrontational way. Say you’ve noticed that she’s been behaving a bit differently and ask if everything’s okay and if there’s anything you can do to help. Remind her about your EAP (if you have one) or any other support resources you offer employees. Refer her to specialists or other appropriate providers who may be able to help. Tell her your door is always open and she can come to you any time. Ask her if there are any accommodations you can make to help. DON’T say anything about her age, mental or physical health, e.g., “it’s not unusual for people of your age to have memory lapse.”
If that doesn’t work and problems continue, I’d try again but this time provide a warning to the extent the problems are affecting her job performance or violating company rules. At that point, you’ll need to bring in a lawyer–if u haven’t already. This is very sensitive stuff and you need to move gently. Hope these suggestions are helpful. Glenn

[vickyp]

in reply to: Answer for Ghosted by Employee #87122

Yeah, I get that Q a lot. I like your phrasing of “ghosting” but as a matter of law, the Q is at what point can you deem a missing employee as having abandoned the job and end his/her employment. The answer, of course, is it depends. First of all, you can’t invoke abandonment if the employee still has time under the leave. Based on the way you phrase the Q, I assume that is not the case here. I also assume that the employee hasn’t demonstrated a clear and unequivocal intent to abandon the job.
So now it becomes a matter of reasonableness. And even though there’s no formula for amount of time, one thing is very clear: To show abandonment, you must be able to prove that you took reasonable steps to reach the employee and find out if he/she was coming back. Sounds like you’ve been doing that. Find out if anybody else at your organization has spoken to or knows how to reach the employee.  Very importantly, keep detailed records of all attempts to make contact, including time, date, method and results. And if you decide to pull the plug, send written notice explaining your reasons to employee’s last known address.
The other thing I’d do is turn the Q around on the LTD carrier. They probably deal with these situations all the time. How long do THEY (and their counsel) usually give a missing employee to resurface? Their answer isn’t quite the same as legal counsel but it may help–kinda’ like I hope this response does. Good luck and let me know what happens. Glenn
BTW, here’s a good piece on this subject from the HRI blog     https://hrinsider.ca/awol-how-much-leave-is-too-much-leave/

[vickyp]

in reply to: Answer for Assessing addiction after incident #87121

Kudos for doing everything right, so far. The answer is YES, you do have to make a determination of whether the employee has an addiction or is just a recreational user. But you don’t necessarily have to bring in an outside expert to do it. You can simply ask the employee. And if he/she says yes, you can ask for a doctor’s note or other verification.
If the employee is simply a recreational user, you have just cause to discipline for violating your fitness for duty policy, PROVIDED THAT, the positive test denotes current impairment. If the substance was marijuana you may have a problem to the extent that THC metabolizes slowly and can be in the system long after the high wears off.
If the employee has an addiction, you need to accommodate him/her to the point of undue hardship. How that plays out depends on the circumstances. But the fact that the employee didn’t disclose the addiction gives you a legal advantage. See the 2017 Stewart v Elk Valley Coal case from the Canadian Supreme Court https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16679/index.do  (or see our analysis of the case on HRI–search “Fitness for Duty”)
The same accommodations analysis applies if instead of being an addict, the employee is using medical marijuana for a disabling condition. Again, fitness for duty is crucial, especially if employee is safety-sensitive.
Great job so far and good luck seeing this through to the next step. Hope this helps. Glenn

[vickyp]

in reply to: Answer for Employee Theft and term with cause #87120

I’m neither qualified nor allowed to give you legal advice. So, my first suggestion is that you talk to a lawyer.
If you want my personal opinion, which again is NOT legal counsel, based on the scenario you describe and not knowing all of the facts: You may have a tough time justifying termination for cause. No doubt, theft is a just cause offence. But there are some problems here: First of all, unless I’m missing something, taking a couple of boxes of tea seems like a fairly minor and harmless act of theft. While it may warrant a warning, termination seems excessive. On the other hand, a relatively minor offence could rise to the level of just cause if the employee has a history of discipline for committing the violation, has received repeated warnings or suspension and/or is on a last chance agreement. But absent some other aggravating factors not mentioned in your Q, if this is a first offence, termination isn’t likely to hold up.
Please be careful here. It sounds like you may be overreacting a tad. And if you’re wrong about just cause, you risk not just ESA liability but wrongful dismissal claims. But again, I don’t know the entire situation. And it sounds like you have a problem employee who deserves discipline–even though it may be less than termination. That’s why it’s so important that you talk to counsel before pulling the trigger on this one.
Hope that helps. Glenn

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