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in reply to: Answer for Employee Comments & Glassdoor #87089
It could be. Court cases have made it abundantly clear that employers have legitimate grounds to discipline employees for harmful posts about a company on social media even if they post them after work and from home. But to justify discipline, you need: 1. A clear Social Media Use Policy banning such posts; and 2. A really harmful post. The question of whether a negative review on a site like Glassdoor crosses the line is a close one, especially if the review was honest, anonymous and doesn’t say nasty stuff about a particular manager, supervisor, employee, customer or other individual.
There was recently a case in Quebec where a company WAS allowed to collect damages from an ex-employee for trashing the company on an employer review site. The case involved a former employee who violated an anti-disparagement clause in her release rather than an active employee who violated an HR policy, but the same principles would apply. Here’s our write-up of the case and a link if you want to read it.
3. Employee Must Pay $11K for Trashing Ex-Employer on Website
A software firm claimed that the highly negative review an ex-employee posted anonymously on the RateMyEmployer.ca website violated the non-disparagement clause of her severance release. The employee claimed the clause was unenforceable and violated her freedom of expression. The court sided with the employer. In promising not to say anything negative about the firm and receiving consideration, i.e., something of value for doing so, the employee waived her expression rights. Result: She had to pay the company $10,000 for “moral prejudice” and $1,000 in exemplary damages for violating her agreement [Digital Shape Technologies Inc. c. Walker, 2018 QCCS 4374 (CanLII), Oct. 9, 2018].
Hope that helps. Glennin reply to: Answer for Smoking & The Workplace #87088100% yes. In fact, you’re REQUIRED TO if the workplace is enclosed (although a parking lot won’t qualify) thanks to the BC Tobacco & Vapour Products Control Act& Reg, which requires employers to ban indoor smoking at the workplace. Here’s a detailed analysis of indoor smoking laws we recently posted on OHSI. https://ohsinsider.com/topics/workplace-smoking-vaping-the-5-things-you-must-do-to-comply-with-new-smoke-free-laws Here’s a chart summarizing the indoor smoking laws of not only BC but all other jurisdictions. https://ohsinsider.com/topics/compliance-cheat-sheet-workplace-smoking-vaping-laws-in-each-part-of-canada As you can see, BC doesn’t allow for Designated Smoking Rooms. It also extends the indoor smoking ban to work vehicles (the way most jurisdictions do),
Hope that helps. Glennin reply to: Answer for Cell Phone policy implementation #87087No cell phones policies are perfectly legal and not an infringement on privacy. But these policies are also highly unpopular with employees. And they may also undermine productivity especially for employees who use their cell phones to do their jobs and/or who work in the field or are otherwise difficult to contact. But if you’ve assessed the negatives and found they don’t outweigh the positives, you can implement the policy. My suggestion would be to try and negotiate with employees so they’ll buy in.
What WOULD violate privacy is scanning personal cell phones to see how employees are using them during work. Unlike work computers, employees have a reasonable expectation of privacy with regard to their personal cell phones. Issuing company cell phones is one way around that but buying the equipment and setting up the monitoring system is a big investment.
As for part 2 of your Q, unauthorized use of personal cell phone at work is grounds for discipline, especially if you have a clear policy. But as your Q recognizes, it’s the kind of offence requiring progressive discipline. At least one warning is 100% necessary but after that it gets fuzzy. One is probably not enuf, unless the offence is unusually serious, e.g., the employee was on the cell phone at a time she was being counted on to carry out a really important safety function like attending to a confined space entry. I’d also strongly suggest that you impose a suspension or some form of lesser penalty rather than go directly from warning to termination. But as is always the case with progressive discipline and the Q of whether X conduct is just cause to terminate, each situation is different and there’s no single formula–only factors you need to consider like previous discipline for other offences, length of service, severity of the offence, contrition, etc.
Hope that helps. And let me know if you want me to post the Q about how to deal with personal cell phone use on the site. Maybe our members have good ideas or experiences they can share. Glennin reply to: Answer for Anger Management #87086Technically, yes, if you do it in good faith, with an aim to help the employee and for a justifiable reason that you can document.
The risk is that forcing an employee to take anger management may be seen as a harassment tactic and a means of humiliating the employee. After all, anger management is a sensitive subject. “You need anger management” has become a popular insult among road ragers and such.
Also keep in mind that if the employee belongs to a protected class under human rights laws, requiring anger management could get you sued for discrimination. A couple of years back, we discussed recent court cases in which an African-Canadian employee required by his employer to take anger management claimed he was the victim of racial discrimination and stereotyping. I believe the cases were split 50/50 on whether the claim had merit. (One bit of good news is that courts have made it clear that anger issues aren’t a “disability” requiring accommodation See https://hrinsider.ca/not-discrimination-to-fire-employee-with-anger-management-issues/ )
From the payment Q, I take it your organization doesn’t offer anger management under an EAP or mental health plan. Even so, employers often do offer to pay for anger management, especially for a valued employee they want to help. But unless there’s something saying otherwise in the employment agreement, collective agreement or terms of an employee benefits plan, you probably don’t have to pay for anger management services.
Great Q and I hope this helps. Glennin reply to: Answer for Termination Question #87085Yes. Feel free to call me at 203 354-4532. Or email me a good time to call you glennd@bongarde.com
in reply to: Answer for Cell phone use policy #87084There are no specific laws expressly addressing cellphone use in the workplace. Under OHS laws, employers have not only the right but the obligation to implement policies to ensure workers do their job safely. The problem is that cellphones in the bathroom sound more like a matter of productivity than safety.
But even if you can’t play the “it’s required by safety law” card, you probably still have plenty of room to maneuver. First question: Are your workers in a union? If not, you should be able to unilaterally revise the policy to cover bathroom usage.
If the workers are union, it may be less easy. That’s because the collective agreement may ban you from making unilateral changes to policies. But you still may be able to get around that by arguing that the collective agreement restriction doesn’t apply to the cellphone policy–especially if the policy gives you the express right to make revisions from time to time.
And even if imposing the new bathroom policy would violate the collective agreement, you can always negotiate the change with the union.
Hope that helps. Glenn
If you can’t find the necessary justification in the policy, look at your overall rights to unilaterally impose new employment policies and amend old ones.I think this case has evolved to the point where you should talk to a lawyer. I can’t give you legal counsel, just a general opinion. As long as you’re cool with that, I’ll proceed.
I think you might have been too easy on the accused. Of course, I don’t know all the facts or context. But generally speaking, physical acts like slapping a co-worker in the butt (whether male-on-male, male-on-female or any other combination,is pretty serious) and calls for more than just a warning (if that’s what you mean by “written up”).
Another problem is that the accused may have violated the terms of his “reminder” by talking to the accuser about the incident. That in itself may be worthy of additional discipline.
As for what you may want to do going forward: First thing I’d consider doing is having the accused sign some kind of probationary or last chance agreement acknowledging the previous violation(s) and promising not to commit any further violations. Specify zero tolerance and that breach may be grounds for immediate dismissal.
The next thing I’d do is get the accused away from the accuser if reasonably possible. Your obligation is to protect the accuser and he’s made it known he feels threatened and wants no part of the accused. It sounds like a fairly reasonable position, too–although, again, I don’t know all the facts. Keeping them on the same team is asking for trouble; and since you’re now on notice, your liability risks are that much higher.
I hope this helps and I urge you to please do talk to a lawyer. GlennUnless there’s something in the contract requiring termination notice beyond what’s required by the ESC, in Alberta, you only have to give an employee with less than 12 months’ service ONE week of termination notice.
Hope that helps. GlennThis answer comes from our payroll guru, Alan McEwen. I hope it helps. Glenn
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You’re asking about the mileage rates that apply to allowances for the use of a car. If you paid up to these amounts per kilometre (I know, but we still call it mileage ), this won’t be questioned by the CRA based on reasonableness.
There aren’t rates by province, but there are rates for the territories, which recognizes the additional costs involved in those areas. Here is the link: https://www.canada.ca/en/revenue-agency/services/tax/businesses/topics/payroll/benefits-allowances/automobile/automobile-motor-vehicle-allowances/automobile-allowance-rates.html.in reply to: Answer for Salary to hourly #870801. There’s nothing in the ESC to bar you from changing employment from salary to hourly. However:
>There may be something in the employment contract that bans such a change, e.g., a clause making it clear that the employee is and shall have the right to remain on salary.
>To the extent you make the change unilaterally and it results in significant reduction in compensation or other consequences harmful to the employee, he/she may be able to claim constructive dismissal and sue you for significant damages. (This is less of a concern if the employee’s hours and pay won’t change and the wage is just an hourly-based conversion, in which case the employee is essentially already an hourly employee)
2. The contract should specify timelines and procedures for making material changes to the agreement–as this change surely is.
3. Assuming you’re not seeking to cut the employee’s pay and just want to convert his/her salary to the equivalent hourly rate, i.e., you’d simply divide the annual salary by the number of normal hours worked in a year.
Hope that helps. GlennIn my experience the employee also receives notice of the garnishment. I had received a notice from the CRA to garnish an employees wages, I immediately set up a meeting with the employee to inform them of the deduction. Their response in was “Yeah, I know. I received a notice.” Kimberly
What are the provincial rates for gas reimbursement per province? Federally it is .58 cents/km
in reply to: Answer for Employee resigns without proper notice #87077Thanks very much Alan!
in reply to: Answer for Employee resigns without proper notice #87076Here’s Alan’s response to my reply to you. Hope we answered your Q. Glenn
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You’re right that an offer letter could include terms requiring an employee to provide the notice required under the Alberta employment standards, or a greater notice than required under those standards. However, an employee’s failure to abide by those provisions can not directly lead to a reduction in the accrued vacation pay owing.
However, clause 3(1)(a) states that a civil remedy available to an employer is not affected by the Act itself. In other words, an employment contract could provide for damages in case an employee does not provide sufficient notice of termination and also authorize the employer to deduct those damages from any other wages owing on termination.
Alanin reply to: Answer for Mandatory Overtime #87075Here’s what Alan had to say. Hope he answered your Q. Glenn
*****- If an employee is off on vacation, they can not be made to come in for a Saturday shift. The requirement to provide vacation time is defined as weeks away from work. The minimum requirement is to take vacation in whole weeks. If a person is asked to work a Saturday shift, in a week during which they are on vacation, this person has not had a complete week away from work, so the requirement to provide vacation time has not been met.
- Other than this, employees can be required to work a Saturday shift. It’s considered within management rights to set the hours of work for employees.
- If employees do not report for work as required for a Saturday shift, they can be disciplined, but reducing their vacation entitlement can not be part of this discipline.
Alan McEwen
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