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in reply to: Answer for ER: Change Existing Job from PT to FT #86940
The safest path is relying on an express term in the employee’s contract enabling you to modify the position from FT to PT, or vice versa. If there is no such provision, you have two basic choices:
Option 1: Impose the change unilaterally. This is risky. The employee’s perception that this is a fundamental change to his/her employment would be on target, which means that you’d be at risk of a constructive dismissal claim. You MIGHT be able to avoid this if one or more of the following things are true (the more, the better):- There was an implied agreement or understanding between you that such a change was likely or at least possible
- You’ve unilaterally made similar changes to his/her employment in the past with no objection
- The change is essential to a legitimate business purpose
- Such changes are common in your industry
Option 2: Negotiate a new position with the employee. Either modify or replace the current contract. If the employee objects, you may want to advise her/him that the alternative is termination. Of course, termination would be without cause and termination notice would be due. But the employee may still prefer a shift to FT to totally forfeiting the job.
Good luck and hope this helps. Glennin reply to: Answer for Relocation Considerations #86939KW: In doing some research on constructive dismissal and geographic relocation, I came across this Ontario case called Smith v. Viking Helicopter, in which an employer, in this case, an airline, was found NOT liable of constructive dismissal because it moved its business to a different location. Due to the nature of the industry, moving was a distinct possibility and there was nothing in the contract to prevent it, the court ruled. I wish I had found this case when I answered your original Q but I hope it’s not too late to be of assistance now. https://www.canlii.org/en/on/onca/doc/1989/1989canlii4368/1989canlii4368.html?autocompleteStr=Smith%20v.%20Vikin&autocompletePos=1 R
Glenn, glennd@bongarde.comin reply to: Answer for Required WHMIS Training (Ontario) #86938Employees need and employers must ensure they receive WHMIS training if they work with or may be exposed in the course of their work to hazardous products (aka “controlled products” under the old pre-GHS regulations) regardless of whether the hazardous product is produced in the workplace or obtained from an outside supplier. Basically, if the product is in the workplace and the worker is exposed to it during work, WHMIS/GHS training is required regardless of how the product got there. I’ve pasted in the relevant provisions of the Ontario OHS WHMIS Regs. below.
REGS
Worker Education
6. (1) An employer shall ensure that a worker who works with or who may be exposed in the course of his or her work to a hazardous product received from a supplier is informed about all hazard information the employer receives from the supplier concerning the hazardous product and all further hazard information of which the employer is or ought to be aware concerning its use, storage and handling. R.R.O. 1990, Reg. 860, s. 6 (1); O. Reg. 168/16, s. 2 (1), 6.
(2) An employer who produces a hazardous product in a workplace shall ensure that every worker who works with or who may be exposed in the course of his or her work to the hazardous product is informed about all hazard information of which the employer is or ought to be aware concerning the hazardous product and its use, storage and handling. R.R.O. 1990, Reg. 860, s. 6 (2); O. Reg. 168/16, s. 2 (1), 6.
7. (1) An employer shall ensure that every worker who works with or who may be exposed in the course of his or her work to a hazardous product is instructed in,
(a) the contents required on a supplier label and workplace label, and the purpose and significance of the information contained on the labels;
(b) the contents required on a safety data sheet and the purpose and significance of the information contained on a safety data sheet;
(c) procedures for the safe use, storage, handling and disposal of a hazardous product;
(d) procedures for the safe use, storage, handling and disposal of a hazardous product when it is contained or transferred in,
(i) a pipe,
(ii) a piping system including valves,
(iii) a process vessel,
(iv) a reaction vessel, or
(v) a tank car, a tank truck, an ore car, a conveyor belt or a similar conveyance;
(e) procedures to be followed when fugitive emissions are present; and
(f) procedures to be followed in case of an emergency involving a hazardous product. R.R.O. 1990, Reg. 860, s. 7 (1); O. Reg. 168/16, s. 2 (1, 3), 7.
(2) An employer shall ensure that the program of worker education required by subsection (1) is developed and implemented for the employer’s workplace and is related to any other training, instruction and prevention programs at the workplace. R.R.O. 1990, Reg. 860, s. 7 (2).
(3) An employer shall ensure, so far as is reasonably practicable, that the program of worker instruction required by subsection (1) results in the workers being able to use the information to protect their health and safety. R.R.O. 1990, Reg. 860, s. 7 (3).in reply to: Answer for Conflict of interest #86937Jeez, as an HR question, the answer is that there’s no answer. In other words, the HR and employment laws don’t address this. However, there may be provisions in the educational institutional laws of your jurisdiction–and I don’t know what that jurisdiction is. In addition, education laws are well beyond my area of expertise.
Also, as a general principle, conflict of interest is basically a matter of internal governance dictated not by statute or regulation but the specific provisions of the contract or, in this case, the university’s bylaws. I’d also add, FWIW, that I personally don’t see any conflict of interest in a student’s serving on a financial committee. I actually think it’s a pretty good idea to have student representation. But, again, I don’t have any expertise or direct experience in the internal governance of academic institutions.
Wish I could be more helpful. Glennin reply to: Answer for Manitoba Workplace Safety and Health #86936That’s a really great Question. The 10% of Manitoba workplaces not covered by the WSHA and Regs. are those that are federally regulated which are subject not to Manitoba law but the Canada Labour Code OHS provisions. This would include companies located in Manitoba but engaged in enterprises deemed interprovince commerce such as transportation companies that operate in multiple jurisdictions, railways, airlines, satellite, broadcast and telecommunications. The same is true of other provinces. Basically, in other words, just about all companies are subject to OHS laws–roughly 85% of them provincial and 15% federal. Hope that helps. Glenn
in reply to: Answer for LEGALIZATION OF CANNABIS #86935You should use the same impairment criteria as before. In other words, legalization doesn’t have any impact on workplace impairment. It will be just as illegal to be impaired after legalization as it was before legalization even if the employee obtains and uses the cannabis legally. It’s the same as alcohol. The fact that alcohol is legal doesn’t justify or give employee immunity to be drink or be drunk AT WORK. And the fact that the substance happens to be legal has absolutely no impact on scientific levels at which an individual is deemed to be impaired.
Hope that helps and if I missed something or misunderstood the Q, let me know and I’ll have another go. Glenn, glennd@bongarde.comFirst of all, I commend you for having your employee’s best interests in mind. It’s really frustrating when the laws designed to protect employees get in the way of employers who want only to do the right thing to help their employees. But enough with the venting and let’s see if we can figure this thing out.
To start, let’s break down the issues:
KEEPING THE EMPLOYEE FROM DRIVING: You have authority–and responsibility–to stop the employee from driving to the extent he’s driving a company vehicle and/or performing job-related functions. But your rights and responsibilities to regulate his driving to and from work and while he’s off-duty is far more problematic, especially if he isn’t driving a company car. This is private, personal conduct engaged in off-duty. And it just so happens we did an extensive analysis of this issue a couple of weeks ago. Even though the premise is discipline for off-duty conduct, the same principles re: delineation of authority apply to your situation and you should give it a read. https://hrinsider.ca/termination-for-off-duty-conduct-the-10-things-hr-directors-need-to-know/
ENSURING THE EMPLOYEE ISN’T IMPAIRED AT WORK: As an employer, you have every right to insist that employees come to work fit for duty and refrain from using any substances that may impair their work performance–including legal prescription drugs. This is especially true if the employee performs a safety-sensitive job, e.g., involving operation of heavy equipment, directing traffic, etc. Hopefully, your policy makes this clear.
DISCIPLINE vs. NON-DISCIPLINARY: Okay, let’s talk about what you can and can’t actually do to deal with the impairment situation. Based on recent cases and best practices, I generally advise employers to do what it sounds like you’re doing now, namely, treat the problem not as a matter of discipline but getting the employee help for a problem. You can and should talk to your employee directly–but in a highly sensitive and diplomatic way. Let him know you’re on his side and that you’re trying to be constructive not punitive. Acknowledge that this is private business but also that it affects his work. Go through the observations you relay in your Q. And ask him what you can do to help.
DOCTOR: During your conversation, ask for permission to talk to his doctor. Reassure him that you’re seeking not personal medical files but information about what you can do to help him. DO NOT, I repeat, DO NOT go over the employee’s head if he denies you permission to speak to his doctor. If you do, you’ll be exposing yourself to liability for a privacy violation. Ditto for the employee’s family members and friends. You can’t talk to them unless: a. the employee consents; or b. they come to you.
Keep careful records documenting all the actions you take, not only as a legal CYA but to create a case record that you can go back to later to get the best outcome for both of your sake’s.
Final point: This is just personal guidance, not legal advice. If it comes down to discipline, termination or other decision about the employee’s employment, go to a lawyer for legal counsel.
Hope this helps and sorry to go on so long but, as you well recognize, this is highly sensitive and delicate stuff. Glenn, glennd@bongarde.com, 203 354-4532in reply to: Answer for Constructive Dismissal #86933While constructive dismissal is typically the cumulative result of multiple changes in employment conditions, a single change may be enough to trigger it if the change: a. Results in substantially unfavourable terms of employment; and b. Is imposed unilaterally by the employer.
From the tenor of your Q, I’m implying that the change in reporting WAS a unilateral change.
So, then the Q would be what impact will it have on the terms of employment. Simply changing a report sounds pretty harmless. But, of course,without knowing the facts, I can’t really judge how adverse the change is. Key things to ask:
Is the move a demotion? Does it involve a cut in pay or benefits? A loss in prestige? A reduction in responsibilities? Reduced prospects for advancement? An unfavourable change in location or work hours?
The more of these you answer YES to, the stronger the employee’s case for constructive dismissal.
One more thing: Are you sure this is the only change? When employees get together with their lawyers, they can usually brainstorm other adverse changes that you may overlook.
Hope this helps. Glennin reply to: Answer for Modified work agreement document #86932Can you tell me which jurisdiction you’re in and what kinds of workers are involved? I need that info to determine what, if any, employment standards requirements may apply. Thanks. Glenn glennd@bongarde.com
in reply to: Answer for Constructive Dismissal #86931I’m sorry. Is there a question here? If there is, I don’t see it. Can you please try resending. You can also gmail me at glennd@bongarde.com or call me at 203 354-4532
in reply to: Answer for Providing employee info #86930Yes, you gotta give SGI the dates and I’ll give you 3 reasons why:
1. Unlike Alberta, BC and Quebec, Sask doesn’t have a provincial law establishing personal privacy rights of employees in the workplace–although if you’re federally regulated, you would be subject to the employee privacy protections under the federal PIPEDA law.
2. Even if PIPEDA workplace privacy laws applied, dates of employment are not protected personal information.
3. Even if PIPEDA applied and the ex-employee start and end dates were protected, you’d still have to provide the info to a government agency like SGI that lawfully requests the information to perform its legal functions, even without the ex-employee’s consent.
CAVEAT: While giving SGI the dates is fine, what CAN get you into trouble is providing personal info about the ex-employee that SGI neither needs nor requests. In other words, keep the disclosure limited to the purpose at hand and don’t give them the entire employment file.
Hope that helps. Enjoy the holiday. GlennHere you go. I hope this is timely. Alan also asked me to pass along his contact info in case you want to get in touch with him. Glenn
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From Alan:
Here the employer’s best option is probably to pay the full 2 weeks’ vacation on top of any earnings to the last day actually worked on June 27. In that scenario the last day of employment, for both benefits and ROE reporting purposes would be July 11. Note, that statutory holiday pay for Canada Day will also be owing. This means benefit continuance to at least July 11, although in practice any carrier would normally charge a full month’s benefit premiums, even if coverage ceases on the 11th.
If the employer wishes to terminate employment on the last day of actual work, June 27, then both:- Wages in lieu of notice to July 11, including regular hours for Canada Day; and
- The 2 weeks of vacation pay would be owing.
I’m assuming that what is happening is the employee gave notice on June 22, just before the start of a 2 week planned vacation. The employer convinced the employee to work at least 3 more days, presumably to cover needed requirements. This time can’t be counted as part of the vacation and a full 2 weeks vacation or 4% of vacationable earnings in the prior vacation year (plus any vacation pay owing for any part year) is owing on top of wages for these 3 days worked.
Please feel free to pass on my contact information if the employer needs any further help.
Thanks,
Alan R. McEwen
Alan McEwen & Associates
PO Box 144 Station Main, Qualicum Beach, BC V9K 1S7
250-228-5280 in the Pacific time zone
https://alanrmcewen.comNeed to run this by our Payroll Poobah; will get back to you as soon as I hear from him. Thanks.
in reply to: Answer for Notice Period for Temp Layoffs #86927This is a tough one to answer without knowing more about the situation, why you provided the SK-required notice (which I presume is more generous than the federal requirements) and the particular industry you’re in.
One immediate risk I’d point is exposure to a claim for constructive dismissal, which arises any time employers impose unfavourable changes in employment conditions. The risk would be particularly acute if you implement the change unilaterally; conversely, you’d be on stronger legal grounds if the contract contains a provision allowing the employer to lay off employees for short periods of time. Also remember that even if the ESA laws of the jurisdiction ALLOW FOR short term layoffs, the right isn’t necessarily automatically given to management, especially if the contract precludes it.
I hope this helps but if it doesn’t, give me more info about the situation and I may be able to give the Q a second shot. Glennin reply to: Answer for Casual Employment #86926Thanks for your patience in awaiting my response.
The key issue, I presume, is termination notice. The bad news: As in most provinces, BC doesn’t provide for differential treatment of (or even mention, for that matter) casual employment in its ESA statute. The good news: Termination notice exceptions may apply (although not probationary employment since the arrangement is expected to last over 3 months).
Section 65 says that the obligation to pay termination notice doesn’t apply to employees:
(a) employed under an arrangement by which
(i)the employer may request the employee to come to work at any time for a temporary period, and
(ii)the employee has the option of accepting or rejecting one or more of the temporary periods,
(b)employed for a definite term,
(c)employed for specific work to be completed in a period of up to 12 months,
(d)employed under an employment contract that is impossible to perform due to an unforeseeable event or circumstance other than receivership, action under section 427 of the Bank Act (Canada) or a proceeding under an insolvency Act,
(e)employed at one or more construction sites by an employer whose principal business is construction, or
(f)who has been offered and has refused reasonable alternative employment by the employer
If one of these exceptions applies, you may want to refer to it in your Hiring Letter. Of course, the Q of whether you want to bring up termination in a Hiring Letter is something to consider–some employers won’t do that because it sets a negative tone. You will, however, have to discuss termination in the contract. Without knowing what kind of arrangement you have in mind, I’d just say that you may want to use a termination clause that tracks the ESA rules, a la something generic like this:Termination
ABC Company may terminate your employment at any time. If your employment with ABC Company is terminated, you will receive either written notice of termination, termination pay or a combination (as long as the notice and the termination pay together equal the length of notice you would be entitled to receive), in accordance with Section 63 of the ESA unless: i. You are terminated for just cause; or ii. Your employment is of the type for which Section 63 notice is not required under Section 65.
Hope this helps and apologies for taking so long to get back to you. Glenn -
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