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in reply to: Answer for Compensation Value of a Company Vehicle #86895
From Glenn: Alas, this Q calls for an expertise that I don’t possess. So I have called in the heavy artillery–our resident expert, Alan McEwen
From Alan: There isn’t a flat dollar amount that can be given for the taxable benefit associated with the provision of a car to an employee. Instead there are formulas, given in this guide, https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/rc18.html, that must be used. The factors in the formula that affect the result are based on:- The value of the car, whether the purchase price or monthly lease cost;
- The portion of the year the car is available to the employee;
- The ratio of business to personal use;
- Whether the employer has paid operating costs in addition to providing the car itself; and
- Whether the employee has repaid any portion of the benefit received.
Let me know if I can be of further help,
Alan McEwen & Associates
855 Berwick Road South, Qualicum Beach, BC V9K 1S7
250-228-5280in reply to: Answer for Child Death Leave #86894You can also call me directly if you need an immediate answer. Glenn Demby, 203 354-4532.
I’m not an expert in collections laws but I think you’re handling it right. Just pass along the call and try to stay out of it. (I’d also be curious to know by what right the creditor is contacting the debtor’s employee but I’ll let the collection agency’s lawyers worry about that.) Now if the creditor gets a garnishment order against the employee, you’ll need to take immediate action. HRI has a lot of good stuff on how to respond to garnishments when and if you have to cross that bridge.
Glenn, 203 354-4532in reply to: Answer for Child Death Leave #86892Depends on which jurisdiction’s ESA laws applies. Where are you located–or is your organization federally-regulated?
There is NO medical leave under the current Alberta ESC. But once Bill 17 takes effect on Jan. 1, employees will get 16 weeks’ unpaid long-term illness and injury leave. And you’re right, once leave ends, return to work will be governed by Alberta Human Rights Act. Because the injury/illness is likely to constitute a “disability,” you must make accommodations to the point of undue hardship.
Your point about holding open the position until it becomes clear that the employee isn’t getting better and won’t be able to return is basically right. The hard part will be how and when you can make that determination. The accommodations process requires you to get an assessment of the employee’s capabilities and needs from his/her physician. You can ask for a PROGNOSIS but not a DIAGNOSIS. The employee also has to cooperate and furnish the medical info you need to make the assessment–employee failure to cooperate in the accommodations process is generally considered legitimate grounds for termination.
If the initial medical assessment doesn’t give a definitive and reasonable return date, you may need to keep the position open pending a later assessment. Although you don’t have to wait forever, the Q of how long is too long, unfortunately, varies from case to case.
The other key issue in determining reasonable accomm v. undue hardship will be the job-related accommodations the employee needs, e.g., with regard to work schedule, work duties, location, etc.
Bottom Line: Bill 17 doesn’t change the accommodations rules with which you’re apparently familiar; all it does is create a new set of leaves (including but not limited long-term illness and injury) to which those accommodations requirements apply.
Hope that helps and Merry Xmas. Glenn 203 354-4532in reply to: Answer for Bill 148 Vacation #86890NOTICE: THIS IS A REVISED ANSWER TO ONE I POSTED ABOUT 2 HOURS AGO: IF YOU READ THE PREVIOUS ANSWER (which I have since deleted), DO NOT RELY ON IT AS I BELIEVE IT WAS INCORRECT. USE THE ANSWER THAT APPEARS BELOW INSTEAD:
My answer would be that an employer must provide a minimum of 3 weeks of vacation time to an employee who hits the 5-year service mark, under the new section 33(1)(b). This is a minimum requirement that can’t be waived under the Act, even if the employee agrees, see section 5(1).
As far as vacation pay goes, if an employee agrees to “sell” back the extra 2% difference between 2 and 3 weeks of vacation, that would have to be treated as “vacation pay” to remain compliant with the new amendments. In other words, the minimum 6% would have to be paid, or the same amount paid as 4% vacation pay and then 2% “sold” back to the company. In these circumstances, what would the point be of “selling” back the 2%?
Alan McEwen & Associates PO Box 144 Station Main Qualicum Beach, BC V9K 1S7 250-228-5280 (Pacific time)
Thx for the Q and Merry Xmas
Glenn 203 354-4532in reply to: Answer for How To Use Ask The Expert #86889As an HR Insider member, you have access to thousands of members across Canada – all of whom have dealt with similar issues and problems that you face on a daily basis. Part of the real value of HR Insider is not only giving you REAL SOLUTIONS and best practices from our circle of experts and editors, but also putting you within arms length of a community of similar minded people.
Ask the Expert is a question answer channel. Use the form to post a question and get answers from not only us and our experts, but also members of HR Insider community. Find out what other members are doing. Give your opinion and advice to another member’s issue.
Get started now, Ask an Expert!
Any questions about using Ask the Expert? Post them below! And please include your jurisdiction because the answer may depend on it!in reply to: Answer for Termination for Excessive Absenteeism #86888It depends. The rules are complicated but let”s see if I can simplify them for you.
Step 1: Determine If the Absence Is “Culpable”
Culpable absences include things like deliberately missing work when there”s nothing physically or mentally wrong. Such absences are subject to discipline like any other form of misconduct.
But if the absence is non–culpable, e.g., absences due to illness or injury, discipline is much trickier.
2. If Absence Is Non-Culpable, Does It Frustrate the Employee”s Contract?
There are situations when it is appropriate to impose discipline for non–culpable absences. One of these is when you can prove that the absence “frustrated” the employee”s contract and made it impossible to do the job you hired her to do.
Proving frustration of contract is hard. To find out what you must do to prove frustration, click this link. https://hrinsider.ca/homepage/absenteeism-does-employee%E2%80%99s-illness-%E2%80%9Cfrustrate%E2%80%9D-her-contract
3. Does Discipline Constitute Disability Discrimination?
Because the injuries and illnesses that cause employees to miss a lot of work are often considered “disabilities” under human rights laws, discipline for absenteeism may be considered a form of discrimination. In such cases, liability typically turns on whether the employer made reasonable accommodations for the employee or, conversely, whether putting up with the employee’s continued absences constitutes undue hardship.
Click this link to find out how to determine when long non-culpable absences reach the point of undue hardship. https://hrinsider.ca/homepage/absenteeism-when-do-long-absences-become-unacceptable-part-1
I can’t give you legal advice or tell you what to do next. But what I can do is walk you through the analysis you should conduct to make that decision yourself.
1. Is Social Networking Grounds for Employee Discipline? YES []; NO [ ]
Good news: You pass the first test. Although employment law has a long way to go to catch up with social networking, early cases have made it 100% clear that employers can, in fact, discipline employees for posting harmful things about the company, clients or employees on social network sites. Stated differently, social networks are not an employee’s private domain, even if employees post after or away from work.
2. Did the Employee’s Postings Harm Your Company? YES [ ]; NO [ ]
To constitute grounds for discipline, you must demonstrate that the employee’s postings hurt the company or its reputation. It’s not immediately clear in this case whether criticising a sister school crossed the line. To make that determination, you must consider factors like:
What exactly the employee said;
– The tone in which she said it;
– The exact relationship between you and the sister school targeted for criticism—how in other words, the criticism harmed your own company; and
– The employee’s position at the company—criticism is much more harmful if the employee is responsible for public relations or occupies a high position. (Example: Nunavut Tourism was justified to fire “Polar Penny,” a marketing employee, for posting critical blogs about the city she was hired to promote.)3. Did the Employee’s Postings Constitute Insolence? YES [ ]; NO [ ]
Another theory you may be able to use to justify discipline is that the employee’s postings constituted insolence or insubordination. The basic test for insolence is whether the employee’s conduct is disrespectful and undermines the ability of management to direct the workforce. Again, I don’t have enough information to judge if the employee’s criticism of the sister school crossed the line—although her refusal to take the post down after being warned would probably constitute evidence of insolence.
4. Do You Have a Social Networking Policy? YES [ ]; NO [ ]
Your legal case will be much stronger if your company has implemented a written social networking/internet use policy that bans employees from criticizing the company, or in this case, its sister schools on Facebook, blogs, etc., and provides that violations can result in discipline.
5. Do You Have a Progressive Discipline Procedure? YES [ ]; NO [ ]
Answering YES to all of the above questions means you likely do have grounds for discipline. At that point, it becomes a matter of how you discipline the employee. The first step is to make sure you have a progressive discipline policy or procedure at your company and use it consistently to enforce your social networking and other HR policies.
6. Are You Following Your Progressive Discipline Procedure? YES [ ]; NO [ ]
As long as there is, in fact, a progressive discipline procedure in place, deciding what to do next should be pretty straightforward: Simply follow the procedure. It sounds like the employee has already received a warning. Accordingly, check your procedure to determine the appropriate penalty for employees who commit offences after a warning.
7. Are You Documenting Your Actions? YES [ ]; NO [ ]
Last but not least, be sure to make a written record documenting the disciplinary actions you take and how you decided to take them in case you get challenged in a grievance hearing or lawsuit.
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Good luck and I hope the above analysis helps you deal with your situation.Administrator
It is tough to say exactly how much more to give, because it depends on their current compensation and the economic landscape. Given the employees age, they may opt for early retirement with a rich enough buy-out.
You need to look at your business and see what is fair for you to offer. I can advise you that it is very likely the employee will pursue some type of action if you only offer the minimum – and it is very likely that the employee will win the action given the circumstances you have described.
Ask yourself, how much are you comfortable paying and treat it as a negotiation to get to that point.
Administrator
Anita Lau
Thanks for the advices. They are very useful.
The employee in question is now around 63-65 years old, and I doubt he will prepare to find another job in the same industry, if after lay-off.
The new department of the company will focus more on use of new social media, e.g. facebook, websites, wechat, cell phone, etc. to develop our products. The employee in question should not have enough knowledge with the new technology.
My question is: Will the termination with no cause and lay-off be treated the same ? We have sufficient background documents (e.g. business strategy and proposal) for valid reason of re-structure and not special pin-point the employee in question,
If we agree to pay the employee in question more than minimum required by the law, that is, 11 weeks, then how much more we should pay, so as to avoid possible litigation ? Given he has worked in the company for 22 years
Administrator
This is more a question about this employees ability to find comparable work than the minimum required termination/lay-off notice/pay. The courts will look at how easy it was for the Manager in question to find comparable work at comparable pay when determining if the compensation was adequate.
I assume that the Manager in question, given his/her 20 year tenure, is at least in his/her 40s. Does the Manager have up-to-date skills in the new hiring environment? Do they have degrees and experience that make them an attractive hire, or are their skills very niche to your industry, or your company? Usually when an employee has been with a single company for so long, there skills are not as transferable as you would think. Lastly, how competitive is your Industry? Could they go to your competitor and get a job, or do you have a non-compete.
The long and the short of it is that you are going to have to pay more than the minimum if you want to avoid a future nightmare… it will happen.
You can look at structuring your compensation as a combination of pay and working notice to lessen the direct financial burden. You can also look at offering retraining or other services to lessen the time to find comparable employment.
You should also add a rider to your letter that states that when comparable employment is found, working notice/termination payments stop if you structure it with ongoing payments. You don’t want the employee to double dip.
I understand the complexity of the situation you are in, but without knowing the specifics of their job, we have to offer advice in the worst possible scenario – and with that perspective, the courts will and have always sided with a long tenured employee that is older than the median hiring age when deciding on whether the minimum termination pay was adequate.
Administrator
A week’s pay is calculated by:
– Totalling the employee’s wages, excluding overtime, earned in the last eight weeks in which the employee worked normal or average hours; and
– Dividing the total by eight.As such, you would then calculate based on 32 hours.
in reply to: Answer for The Employment Contract #86882Absolutely not. But you can add a clause that limits employees to only ESA termination notice and nothing else.
EXPLANATION
There are 3 rules to keep in mind:
1. Employees’ Right to ESA Termination Notice Cannot Be Waived
Termination notice under the ESA is a fundamental right that can’t be waived.
2. Employees’ Right to Additional Notice Can Be Waived
Employees can’t get less termination notice than the ESA requires but they can get more—sometimes a lot more. That’s because employees might also be entitled to termination notice under common-law, i.e., law made by judges in court cases as opposed to statutes and regulations. Common-law notice is typically more generous than ESA notice.
Accordingly, many employers include language in employment contracts saying that employee s who are terminated without cause (and thus in line for ESA termination notice) get only the notice they’re entitled to under the ESA and no more.
3. Waiver of Common Law Notice Must Be Enforceable
Historically, courts have been very reluctant to enforce contract provisions that purport to limit an employee’s notice rights. So if you do add a waiver of common law notice, you need to ensure it will stand up to strict scrutiny:
Waiver Language Must Be Clear and Unambiguous: First of all, the waiver clause must be written clearly so that employees understand what they’re agreeing to. The slightest ambiguity in the language is enough to make the waiver unenforceable.
Waiver Provision Can’t Be Unconscionable: A court won’t enforce your waiver if it thinks it’s “unconscionable,” i.e., so grossly unfair that it shocks the conscience. Waivers can be unconscionable when an employer takes advantage of an employee’s lack of power, ignorance or other vulnerability to ensure he signs.
– Employees Must Receive Consideration: The third requirement is that you provide employees “consideration,” i.e., something of value in exchange for agreeing to waive their common law notice rights.
Great question! You don’t have to wait forever. The basic rule: You can terminate the employee if and when:
– It becomes clear that there’s no reasonable prospect of her return; or
– You can show that you’ve already waited long enough and that holding the position open any longer is an undue hardship.EXPLANATION
The $64,000 question: How do you know when you’ve reached one of these points? Unfortunately, the law doesn’t provide a clear cut answer. The situation gets decided one case at a time on the basis of the particular facts involved. Here’s a summary of two typical cases to show you the factors judges and arbitrators look at to determine how long is long enough to hold open a position:
HOLDING POSITION OPEN IS UNDUE HARDSHIP
FACTS
Physical and mental ailments cause a Hydro-Québec (HQ) employee to miss 960 days in 7 1/2 years. HQ repeatedly tries to adjust her working conditions—light duty, gradual return-to-work, etc. Nothing works. So, when her most recent indefinite leave of absence surpasses 5 months with no return date on the horizon, HQ decides that enough is enough and terminates her employment. The Québec Court of Appeal finds HQ liable for disability discrimination. HQ appeals.
DECISION
The Supreme Court of Canada rules in HQ’s favour.
EXPLANATION
The provincial court used the wrong standard, said the Court. Undue hardship isn’t reached when accommodation becomes “impossible.” Employers have a business to run. And while employers must respect the employee’s rights, employees also must be able to uphold their end of the employment relationship and do the job they’re paid to do. If after efforts to rework the job there’s still no prospect for the employee to get back to work in the reasonably foreseeable future, the point of undue hardship is reached and the employer can cut the cord, the Court concluded.
Hydro-Québec v. Syndicat des employés de techniques prof, locale 2000, [2008] S.C.J. No. 44, July 17, 2008
HOLDING POSITION OPEN IS NOT UNDUE HARDSHIP
FACTS
In Feb. 2009, a software developer goes on leave with a disability later diagnosed as anxiety and depression. The company accommodates him by extending his leave, continuing his benefits and asking about his abilities so it can re-work his job. In Dec. 2009, the developer sends the employer a doctor’s note: date of return unknown but it’s going to be at least 3 more months. Undue hardship, the company decides, and notifies him that he’s terminated, effective March 31, 2010. I need just one more extension, the developer replies, citing new medical evidence suggesting he might be able to return after treatment. But the employer stands by its decision to terminate.
DECISION
The BC Human Rights Tribunal finds the company liable for discrimination and awards the developer $10,000 for injury to dignity.
EXPLANATION
The point of undue hardship hadn’t been reached, said the Tribunal: Unlike in the HQ case, there was medical evidence the developer could return; failure to consider that evidence was a violation of the company’s duty to accommodate. In addition:
The developer got only 3 months notification that his job was in jeopardy;
The company didn’t post a replacement position until 3 months after termination—and waited another 6 months before hiring somebody; and
Extending the developer’s leave would have cost the company only $300 per month.
Morris v. ACL Services, [2012] BCHRT 6, Jan. 13, 2012Establishing Pre-Existing Time Limits for Leave
Although it may be too late for this particular case, one potential solution to consider going forward is setting pre-existing time limits. Just be aware that there are liability risks of pre-set limits since “accommodations” must be based on individual circumstances. Check out this story to find out more about those risks and what you can do to avoid them.
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I wish I could provide something more concrete but I hope this helps. -
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