[vickyp]

in reply to: Answer for We are a small non unionized employer in BC. Several years ago we changed our sick leave policy so that employees could no accumulate paid sick leave days without end to no rollover to the new fiscal year. In addition, we eliminated the pay out of sick leave credits when the employee leaves. When we did this we grand-parented in any existing employees. We are now at the point were one employee has changed jobs within the company to a much higher salary rate and they have at least 5 months of paid sick leave on the books. If they leave we are paying out a lot if it has to be at the current salary. This liability is growing and we would like to pay it out and end the increasing liability. Can we do this? What do we need to do to do it? Should be just bit the bullet and do it for all of the employees who are still grand parented? Or can we simple figure out the salary the employee was earning at the time the sick leave was accumulated and pay out at that rate? #87119

Here’s Alan’s response. Feel free to follow up.
Glenn:
The answer depends on what these people’s contracts of employment were at the time of hire and when the person changed jobs. For example, if the offer letter incorporated the company policies by reference and stated the employer had the unilateral right to change these, then the employer would probably be able to limit its liability in the way expected.
This isn’t so much an employment standards issue as one of contract law, so without more details it’s little hard to give a more precise answer

[vickyp]

in reply to: Answer for We are a small non unionized employer in BC. Several years ago we changed our sick leave policy so that employees could no accumulate paid sick leave days without end to no rollover to the new fiscal year. In addition, we eliminated the pay out of sick leave credits when the employee leaves. When we did this we grand-parented in any existing employees. We are now at the point were one employee has changed jobs within the company to a much higher salary rate and they have at least 5 months of paid sick leave on the books. If they leave we are paying out a lot if it has to be at the current salary. This liability is growing and we would like to pay it out and end the increasing liability. Can we do this? What do we need to do to do it? Should be just bit the bullet and do it for all of the employees who are still grand parented? Or can we simple figure out the salary the employee was earning at the time the sick leave was accumulated and pay out at that rate? #87118

I’ve asked our payroll consultant, Alan McEwen, to weigh in on this one. Will get back to you as soon as I hear from him.

[vickyp]

in reply to: Answer for Overtime Hours #87117

Those are pretty much the rules under the Ontario ESA but with a few slight modifications.
First, the minimum period between shifts is 8 hours, not 11 hours unless: i. total time worked on successive shifts is 13 hours or less; or ii. the employer and employee agree otherwise (Sec. 18(3)). The 11 hours refers to the maximum hours PER DAY. The latter rule cannot be contracted out of. Ditto for the minimum 24 consecutive hours per week off requirement.
The only thing I’d add are the Section 19 exceptions allowing for work above the maximum hours “so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations:
1. To deal with an emergency.
2. If something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services.
3. If something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted.
4. To carry out urgent repair work to the employer’s plant or equipment.”
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Long term leave and employer contact #87116

You can contact an employee on statutory leave to keep in touch and make arrangements for his/her return but not for work-related purposes. In other words, you can’t ask employees to perform any kind of work assignments while they’re on leave. Suggest including language in your leave policies requiring employees to maintain regular contact with their supervisor or HR during the leave. I’m pretty sure there’s at least one article in HRI discussing this issue and providing model language. You can email me at glennd@bongarde.com if you have trouble finding it.
In terms of leave NOT required by employment standards laws, you can pretty much set whatever rules you want. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Is my employee entitled to work for me or stay employed when he can not provide evidnece of work permit application #87115

I have no knowledge of immigration laws but what I do know is that employers are not only allowed but required to verify that employees are eligible to work in Canada. So, assuming that the study permit you originally relied on to verify his eligibility has now expired, you can and must insist that he provide new evidence of his eligibility to work in Canada. But here’s where my ignorance of immigration law gets in the way. I’m just not sure what the rules are for these bridge situations when an employee is between permits and whether they’re entitled to a grace period. But even assuming that they are, the employer would surely have the right to require verification that the employee has applied for a work permit or other authorization to work in Canada and that failure to provide such verification would be just cause to terminate without notice, severance, etc.
Again, this is just the educated guess of one lawyer who knows employment but not immigration laws. To the extent this scenario involves a hybrid of both laws, relying on it is probably inadvisable. Still, I hope I at least helped clarify the employment law aspects. Glenn

[vickyp]

in reply to: Answer for Termination Question #87114

First and foremost, you need legal counsel. All I can offer is a general opinion based on my limited knowledge of the situation and facts of the case. So here it is and take it FWIW:
The problem here, from a legal standpoint, is that it looks like you’re disguising a disciplinary issue as a return to work matter. The problem, of course, is that in allowing the lines to bleed, you’ve set it up for the manager to believe (or at least make the argument) that he’s being terminated because of his mental health issues and/or in retaliation for taking leave of absence and that his previous inappropriate relations with underlings is just a pretext.
The question then becomes whether you do have just cause to terminate. To establish just cause, you’re going to need:

• A clearly written fraternization policy
• Proof that the manager read, understood and agreed to the policy
• Written records documenting the previous disciplinary action, including what the manager did wrong, his explanation, the fact that he was warned and understood the warning
• Clear evidence of the new transgressions, including the testimony of those other employees

.You’re also going to need to provide a clear explanation of why you waited until now to take disciplinary action. I get it. You don’t want to terminate a manager just as he’s going on leave. But the timing of termination upon return is a problem that you’re going to have to deal with. So, PLEASE do yourself and your organization a big favour and talk to a lawyer BEFORE you have your meeting. And while you shouldn’t take it as counsel, I hope this response at least helps frame the situation and legal issues so that you’ll be prepared when you do talk to a lawyer.
Good luck and let me know how it goes. Glenn

[vickyp]

in reply to: Answer for Obligation to New Hire #87113

First of all, best wishes to the candidate. Legally, this is a really tricky situation.
The bad news is that you can’t simply revoke the job offer because of an injury since that would likely be deemed disability discrimination. Instead, you need to accommodate the candidate to the point of undue hardship. Whether waiting 2 months would impose undue hardship depends on the situation–what’s the position, can it be left vacant for a while or does it need to be refilled, what’s the candidate’s realistic prognosis–is it 2 months or more like one year, will the candidate even be capable of doing the job after the injury, etc.
The good news is that because the candidate isn’t an employee and hasn’t put in the minimum time of service, his or her employment standards rights haven’t vested. Translation: No termination notice, accrued vacations or any of that.
Theoretically, you could also have obligations under the terms of any contract or offer letter that the candidate signed on the remote possibility that the contract or offer addresses or applies to the candidate’s pre-employment rights.
Hope that helps and get well soon, Mr or Ms Candidate. Glenn

[vickyp]

in reply to: Answer for If we are a provincially regulated employer based out of Ontario, but we have truck drivers that travel into the US, do they fall under provincial or federal legislation? #87112

That’s a very tricky Q. The basic rule: Federal jurisdiction applies to “federal works, undertakings or businesses.” And a plant in Ontario would not qualify as such. So you’re subject to Ontario OHS laws. BUT to the extent you engage in interprovincial transport, those operations would be subject to FEDERAL law; but transport operations done just within Ontario would remain subject to Ontario law. Of course, things are rarely this simple and there have been all kinds of court cases trying to disentangle which jurisdiction’s OHS law applies depending on factors like where an incident or injury occurred, whether the worker/victim was an independent contractor or employee, etc.
I guess the takeaway is to recognize that your plant and operations within Ontario are subject to Ontario OHS laws but that your interprovincial transport operations are subject to Canada Labour Code and federal transportation rules. I know this is confusing but I hope that helps. Glenn

[vickyp]

in reply to: Answer for Pay transparency act – updates? #87111

No new developments and I don’t expect there will be as long as the PC remains in control. As you know, the Pay Transparency Act (Bill 57) has received Royal Assent but not yet been proclaimed effective. That’s only part of the holdup. To go into effect, the MOL will have to create specific regulations to implement the Bill  And based on the PC’s election campaign and subsequent actions in paring down Bill 148, I’d be very surprised to see the MOL do that. But I do I check the Gazette twice a month–most recently 2 weeks ago–and will immediately report in HRI if I see any Regs. or hear anything about Pay Transparency’s taking effect. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Clause to pay back for Professional Development #87110

Here’s a short one:

• In the event employee voluntarily terminates his/her employment contract with Company within [X time] after the completion date of the professional development financed by Company in accordance with the terms of this Agreement, employee must pay back the professional development costs incurred by Company according to the schedule below: [set out repayment schedule]

Here’s a more extensive one based on a UK model:
1. REPAYMENT OF TRAINING COSTS
1.1 From time to time the Company may pay for you to attend training courses. In consideration of this, you agree
that if your employment terminates after the Company has incurred liability for the cost of you doing so you will
be liable to repay some or all of the fees, expenses and other costs (the Costs) associated with such training
courses in accordance with Clause 1.2.
1.2 Except in the circumstances set out in Clause 1.3, you shall repay the Company as follows:
(a) if you cease employment before you attend the training course but the Company has already incurred liability
for the Costs, [100]% of the Costs or such proportion of the Costs that the Company cannot recover from the
course provider shall be repaid;
(b) if you cease employment during the training course or within [xx months] of completing the training course,
[100]% of the Costs shall be repaid;
(c) if you cease employment more than [xx months but no more than xx months] after completion of the training
course, [50]% of the Costs shall be repaid;
(d) if you cease employment more than [xx months but no more than xx months] after completion of the training
course, [25]% of the Costs shall be repaid.
Thereafter, no repayment shall be required.
1.3 You shall not be required to repay any of the costs under this Clause 1. in either of the following circumstances:
(a) the Company terminates your employment, except where:
(i) it was entitled to and did terminate your employment summarily; or
(ii) it terminated your employment pursuant to an application by you for voluntary redundancy;
(b) you terminate your employment in response to a fundamental breach by the Company.
1.4 You agree to the Company deducting the sums under this clause from your final salary or any outstanding
payments due to you.
1.5 You agree that if the Company waives your obligation to repay the Costs under this clause, you will be solely
responsible for any income or other tax payable as a result of the waiver and you shall indemnify the Company on
a continuing basis in relation to any such tax.
****
Hope these help. Glenn

[vickyp]

in reply to: Answer for Length of Maternity/Parental Leave #87109

Under ESA Sec. 46(4), employees must give’ written notice for pregnancy leave at least 2 weeks before leave begins. You also have the right to request a certificate from a qualified medical practitioner stating the due date.  The same 2 weeks’ notice is also required for parental leave (absent the right to request written certification) under Sec. 47(4). Hope that helps. Glenn

[vickyp]

in reply to: Answer for I’m looking for a sample record retention policy and the legislated requirements to keep employee files/payroll records (including vacation info) for employees (current and terminated), in all provinces/territories (since we are a national organization). #87108

Your Q inspired me to create an HRI version Model HR Records Retention Policy. It should be appearing on the HR web site in next couple of days. I’ll also be happy to send you one if you don’t want to wait. Just email me a request at glennd@bongarde.com.  Thx for the Q and inspiration. Glenn

[vickyp]

in reply to: Answer for Employment Agreement E-Signature Validity (Alberta) #87107

That information is correct. Section 2(2) of the Electronic Transactions Act General Regs. states that the Act (which provides for use of e-signatures to execute legal dox) does NOT apply to employment records. Here’s the exact language.
(2)  The Act does not apply to any information or records arising from, related to or connected with an employee‑employer relationship, including, without limitation, the following:
(a)    employment information and records of employment to be maintained by an employer under the Employment Standards Code or under any other enactment;
(b)    information or records related to the terms and conditions of employment, including a contract of employment;
(c)    information or records related to or created in the course of carrying out the duties, functions and other job related activities of an employee;
(d)    information or records related to the assignment of duties, functions and other job related activities of employment by an employer;
(e)    information or records related to the internal operations of an employer.
.Hope that helps. Glenn

[vickyp]

in reply to: Answer for Working on a Holiday #87106

Pay for employees who work on the stat holiday is time and a half but some jurisdictions give the option of regular pay for the hours worked + a future day off at regular pay. If employees don’t work on the stat holiday, they get paid their regular wage. Hope that helps. Glenn

[vickyp]

in reply to: Answer for I’m looking for a sample record retention policy and the legislated requirements to keep employee files/payroll records (including vacation info) for employees (current and terminated), in all provinces/territories (since we are a national organization). #87105

HRI has some excellent resources on HR and payroll records requirements:
https://hrinsider.ca/payroll-recordkeeping-requirements-across-canada/
https://hrinsider.ca/what-payroll-records-does-the-law-require/
Here are some examples of retention policies:
sample record retention policy – Center for Nonprofit Excellence
http://boabc.org/wp-content/uploads/2015/11/Policy-Records-Retention-and-Destruction.pdf
https://www.nationalservice.gov/sites/default/files/resource/Policies_and_Procedures_Handbook_rev.5.16.11.pdf (scroll down to p. 75)
http://policy.nshealth.ca/Site_Published/DHA9/document_render.aspx?documentRender.IdType=6&documentRender.GenericField=&documentRender.Id=50502 (health care)
https://cara-acaar.ca/about/Policies/RetentionandDestructionPolicy
Hope that helps and sorry to keep you waiting. Glenn

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