Forum Replies Created
-
AuthorPosts
-
in reply to: Job Abandonment Situation #91454
It sounds as if your company has crossed all the t’s and dotted all the i’s. It is unfortunate that the employee is ill, but there is a burden on the employee to communicate, and it would appear that you are suffering undue harm. Yes you can terminate due to job abandonment, but a warning that you should keep all communication on file.
HR Insider
in reply to: Ontario compliance policies #91428You are correct, these are the only legally required but our list is best practice.
See https://hrinsider.ca/essential-hr-policies-special-report/ for all jurisdictions.
HR Staff
in reply to: Acquisition & contracts #91426An employment contract can be understood as any other contract (for example, a service contract, agreement of purchase and sale, etc.). Therefore, it is helpful for both employees and employers to understand the basic requirements of an enforceable contract. There are three basic components needed to form a valid contract.
Offer – Company A is offering Employee B employment.
Acceptance – Employee B accepts the offer of employment.
Mutual Consideration – Company A receives the value of an employee and Employee B receives the value of payment.The above components also apply when amending an existing employment contract. An employer cannot unilaterally change the terms of an existing employment contract without providing an offer, the employee’s acceptance of the offer, and new consideration. New consideration means that both parties are receiving something new of value in exchange for the amendment.
An employer may seek to revise an employment contract for various reasons such as updating the termination clause, revising the pay structure, changing the hours of work, etc. Typically, the change proposed is one that is beneficial to the employer. An employment contract cannot be changed solely because the employer revises the contract and the employee signs it. In order for the new contract to be enforceable, there must be a third component – mutual consideration.
In order to have an enforceable revision to the employment contract, both parties must receive new consideration. Both the employer and the employee must be receiving something of value that they were not already entitled to before.
This means that the employer cannot continue to rely on the value of providing employment to the employee, rather, they must give an additional benefit.
An employee can decide not to accept a change to an employment contract if they are not agreeable to the revision presented by the employer. In the event that an employee does not want to accept the proposed changes, there are two possible outcomes.
1. The employer decides to abandon the proposed change or revise the change in a way that is agreeable.
2. The employer is not willing to abandon the change and there is no agreement.If an employer is hoping to propose an amendment to an existing employment contract, the employer should present the employee with the proposed change and inform the employee that the existing employment contract will terminate following the necessary notice period.
The employee will then have the opportunity to accept the new terms of employment or decline the change. If the employee is not willing to agree to the amendments, the employer will then terminate the employment contract by providing the necessary notice period or pay in lieu of notice.
Employers should be careful to ensure that they are providing the necessary notice period as per the applicable employment standards legislation and/or common law in order to mitigate the risk of a potential constructive dismissal claim.
in reply to: Employee Calling in sick – Pending Termination #91425The fact that she called in sick on a day where her original vacation request was denied is suspect to say the least, and you would be within your rights to request a doctor’s note for that instance; however, as it is passed it may be moot.
COVID protocols are no longer what they once were, and given the time that has passed between when this question was originally asked and this follow up, the employee is beyond the new suggested quarantine rules – so there isn’t an issue.
I would recommend that because the employee is within the probationary period that you can terminate for any reason, and it sounds like you have many, but you should be clear that it has nothing to do with illness or COVID, but attendance, communication, and productivity.
in reply to: Employee Calling in sick – Pending Termination #91420Provided that you are looking to terminate the employee for something other than being sick and that you have documented everything through the progressive discipline process, you can terminate the employee remotely.
However, there are some things that you should consider:
– Is the employee calling in sick because they are having mental health/wellness issues (re stress) that might be impacting their work and their avoidance of coming in?
– Are there any other factors that may be impacting their attendance issues, such as a long-term illness?It is best practice to do a termination in person, and for you to say to the employee that we need you to come into the office tomorrow or X date for a management meeting. (As an aside, have you requested a medical note for these prolonged absences? Is that part of your current policy?)
Odds are that the employee knows what is up and is just trying to avoid the whole thing or is trying to obfuscate and delay for other reasons. You would have a strong case for this causing you undue harm, but to protect yourself, you should probably:
1. Request a doctor’s note
2. Communicate the need for attendance for a management meeting – preferably more than 24 hours in advance. Say something like, we would like to have you in at 10am on Monday for a management meeting, please confirm.
3. Have all your documentation ready for the terminationWhen it comes to terminating an employee who has been repeatedly calling out sick, it’s important to handle the situation with sensitivity, empathy, and compliance with employment laws. Here are some general guidelines to consider:
Review Company Policies: Before taking any action, review your company’s policies and employment contract to ensure you are following the proper procedures for termination. Pay attention to any policies related to absenteeism, sick leave, and termination.
Medical Certification: If the employee has been calling out sick for an extended period, you may request medical documentation to verify the illness. In Canada, employers can request medical certificates for sick leave purposes, but the employee is not obligated to provide one.
Consult Legal Counsel: It’s advisable to consult with legal counsel or an HR professional experienced in Canadian employment laws to ensure that you are proceeding in compliance with applicable laws and regulations. Employment laws can vary by province, so it’s important to get guidance specific to your jurisdiction.
Communication: If you decide to proceed with the termination, communicate with the employee professionally and empathetically. Termination is a sensitive matter, and it’s essential to be respectful and understanding, even if the employee has had attendance issues.
Consider Alternatives: Before terminating the employee, consider if there are any alternatives, such as providing additional support or accommodations, that might help address the attendance issues. Be sure to document any discussions and efforts made to resolve the problem.
Termination Meeting: If termination is necessary, it’s generally recommended to conduct the termination meeting in person if possible, rather than over the phone. This allows for a more personal and compassionate approach. However, if in-person meetings are not feasible, you can conduct the meeting over the phone or via video conference while maintaining professionalism and empathy.
Documentation: Properly document the reasons for the termination, the steps taken to address the attendance issues, and any communication with the employee. This documentation is crucial in case of any legal challenges.
Final Payments and Benefits: Ensure that you provide the employee with their final paycheck, any accrued vacation pay, and information about continuing benefits (if applicable).
in reply to: Timing for keeping payroll records #91419In Canada, employers are required to keep payroll records in compliance with federal and provincial/territorial laws. The specific requirements may vary slightly depending on the jurisdiction and the type of business, but here are some general guidelines:
Employee Information: Employers must maintain accurate and up-to-date records for each employee, including their full name, address, social insurance number (SIN), date of birth, and contact information.
Earnings Records: Keep records of each employee’s earnings, including details of regular wages, overtime, vacation pay, bonuses, commissions, and any other compensation paid to employees.
Deductions: Maintain records of all deductions made from employees’ wages, such as income tax, Canada Pension Plan (CPP) contributions, Employment Insurance (EI) premiums, and any other deductions required by law or authorized by the employee.
Hours Worked: Track the hours worked by each employee, including regular hours and overtime hours. This includes start and end times for each workday.
Payroll Registers: Keep a payroll register or summary for each pay period, which summarizes the total wages paid, deductions made, and net pay for each employee.
Records of Leave and Vacation: Maintain records of employees’ leaves, including sick leave, vacation, and statutory holidays, along with any applicable pay details.
Employment Contracts: Keep copies of employment contracts, agreements, or terms of employment for each employee.
Time Sheets or Time Cards: If applicable, maintain time sheets or time cards that employees use to record their hours worked.
Records of Termination: Keep records of employee terminations, including the date of termination, reason for termination, and any final payments or benefits provided.
Records Retention: Payroll records must be retained for a specific period as required by federal or provincial/territorial laws. In general, these records should be kept for a minimum of six years.
Compliance with Privacy Laws: Ensure that you comply with Canada’s privacy laws when storing and handling employee information. Protect sensitive information and maintain confidentiality.
Accessibility: Ensure that payroll records are accessible to employees upon request, as they have the right to review their own payroll information.
In Canada, employers are generally required to retain payroll records for a minimum period of six years. This requirement is outlined in the federal Income Tax Act and is applicable across the country. Here are some key points to consider regarding record retention:
Payroll Records: Payroll records should be kept for at least six years from the end of the calendar year to which they relate. For example, if you are maintaining payroll records for the year 2024, you should keep them until at least the end of 2030.
Employee Records: Employee records, including information like employee names, addresses, SINs, and other personal details, should also be retained for six years.
Tax Records: Tax-related documents, such as T4 slips, should be retained for the same six-year period. This allows for the Canada Revenue Agency (CRA) to audit and verify the accuracy of your tax filings.
Records of Termination: Records related to employee terminations should also be kept for at least six years, including the date of termination and any relevant documentation.
Compliance Documentation: Any records related to compliance with federal and provincial/territorial labor laws, employment standards, and regulations should also be retained for the specified period.
It’s important to note that while six years is the general requirement, there may be circumstances where you might need to keep records for longer periods. For example, in cases of ongoing disputes, investigations, or unresolved matters, it may be prudent to retain records until those issues are fully resolved.
in reply to: Termination – Legal Release #91416As a general rule, you should never ask an employee to sign a Release unless you are prepared to provide him/her with more money than the law, and his/her employment contract, actually require you to provide. This is because no court will enforce a Release, even though duly signed by the employee, if all that was paid to that employee, on termination, was the severance and termination pay owing to him pursuant to the Employment Standards Act and/or the contractual termination clause in his/her employment contract. As stated by the Ontario Superior Court in Yanez v. Canac Kitchens 2004 CanLII 48176, no signed release is legally enforceable if it provides the terminated employee with nothing more than the payments to which the law already entitles him/her.
In order to later persuade a court to enforce the signed Release, such as to prevent future claims by the employee, you generally must first persuade the court that you paid that employee a sum that exceeded what the Act and the contract required you to pay.
Accordingly, if you are not prepared to pay the employee anything more than what you are legally obliged to pay, there is no point in trying to get him/her to sign a Release. Without that additional money, the Release, although signed by the employee, is not worth the paper on which it is written!
(ii) Situations where a signed Release would probably be unnecessary
Even when you might be willing to provide the employee with an extra financial payment to ensure future enforceability of the Release, there are some situations where doing so will likely be a waste of your organization’s money, namely:Where your employment contract with that employee contains no valid termination clause, and where you are therefore electing to provide the employee with continuation of his or her salary and benefits coverage for the entire period of applicable common law notice; and
Conversely, where the contract does contain a valid termination clause that your lawyers have assured you is absolutely certain to be upheld if challenged in court.
In both these situations, there is no risk of your organization being successfully sued for additional severance pay or pay-in-lieu of notice, and consequently, any signed waiver of the employee’s ability to sue the organization for that additional pay/severance would be unnecessary.(iii) Situations where securing a Release may complicate the termination, or even increase the risk of further claims:
Asking an employee to sign a Release sometimes suggests that you think that your organization may be at risk of being ordered to pay significantly more money than what has been offered in the proposed severance package. To some employees, your request for a Release may imply that you are either not entirely confident in the fairness of that package, or alternatively that you have reason to believe that they may have a potentially successful claim against you on some other issue.When an employee suspects this to be so, he or she will often insist on your paying significantly more than what has been offered, thereby making settlement far more difficult.
Alternatively, your request for a signed Release may encourage the employee to believe there is a valid claim arising from the manner in which he or she was treated, even though – in reality – no valid claim actually exists.
Depending on the employee, your insistence on a signed Release might actually dissuade them from accepting the settlement package that you have offered. In some circumstances, your insistence on a signed Release may even strengthen the employee’s belief in the legitimacy of a potential claim that would otherwise never have been advanced, thereby increasing the likelihood of litigation later being commenced against your organization.
HR Insider staff
in reply to: Meal Break – Alberta #91386In Canada, the rules regarding breaks during work hours, including the possibility of abstaining from taking breaks, vary by province or territory, as labor laws are primarily a provincial matter. Generally, labor standards mandate certain rest periods and breaks for employees, but the specifics can differ.
For instance:
Ontario: Employees are entitled to a 30-minute meal break after every 5 hours of work. However, this break can be unpaid, and if both the employer and employee agree, it can be split into two 15-minute breaks.
British Columbia: Workers must receive a 30-minute meal break after working 5 hours. This break may be waived with a mutual agreement if the shift is no longer than 6 hours.
Alberta: Employees must have at least a 30-minute break (paid or unpaid) every 5 hours.
Quebec: Employees are entitled to a 30-minute unpaid break after 5 consecutive hours of work.
In many cases, the law allows for some flexibility if both the employer and employee agree. However, it’s important for employees to be aware of their rights and for employers to adhere to the minimum standards set by law. If an employee chooses to skip their breaks, it should be a voluntary decision and not due to employer pressure.
HR Insider Staff
in reply to: Canada- Meal Break Requirements #91385In Canada, the rules regarding breaks during work hours, including the possibility of abstaining from taking breaks, vary by province or territory, as labor laws are primarily a provincial matter. Generally, labor standards mandate certain rest periods and breaks for employees, but the specifics can differ.
For instance:
Ontario: Employees are entitled to a 30-minute meal break after every 5 hours of work. However, this break can be unpaid, and if both the employer and employee agree, it can be split into two 15-minute breaks.
British Columbia: Workers must receive a 30-minute meal break after working 5 hours. This break may be waived with a mutual agreement if the shift is no longer than 6 hours.
Alberta: Employees must have at least a 30-minute break (paid or unpaid) every 5 hours.
Quebec: Employees are entitled to a 30-minute unpaid break after 5 consecutive hours of work.
In many cases, the law allows for some flexibility if both the employer and employee agree. However, it’s important for employees to be aware of their rights and for employers to adhere to the minimum standards set by law. If an employee chooses to skip their breaks, it should be a voluntary decision and not due to employer pressure.
HR Inisider Staff
in reply to: Health Care Spending Accounts #91384Yes, this would also apply to a healthcare spending account.
HR Insider staff
in reply to: Ontario – Work Coverage #91339No, the employee would not be entitled to additional compensation. If, however, the job they were covering had additional responsibilities – say it was their manager’s role and responsibilities – they may look for additional compensation as their responsibilities have exceeded their original pay scale, but this wouldn’t necessarily be a legal entitlement or requirement. The only real exceptions to this would be if there was a first-aid requirement or the additional duties was incumbent by union contract to additional compensation. However, if this is not specified in a contract or by a union, then the employee would only be entitled to their original pay.
HR Insider staff
in reply to: On premise policy #91318You can download this policy on our partner product for OHS compliance – OHS Insider.
Glenn Demby
Editor-in-Chiefin reply to: Sick Leave BC, ON, QC #91314Yes, you can make DR appointments applicable for sick leave in your policy, and there is no issue with enforcing a 4 or 8 hour entitlement.
Glenn Demby
HR Insider
Editor-in-ChiefIt really depends on what is in your travel policy and if the employee is a manager, but yes, if the travel is outside of the normal operating procedures (like for a travelling sales person) then it is not outside of the norm for there to be a mileage consideration and/or total travel time consideration.
We have members that have given a day in lieu for travel if it is a total of 4 or more hours because calculating total time, distance, etc. can be burdensome, especially if there are airport delays, missed connections, etc.
HR Insider Staff
in reply to: No Call No Show Termination #91278In order for an employer to be justified in terminating an employee for abandonment, there must be an unequivocal indication of an employee’s intention to abandon a position. As the courts have made clear, an assessment of whether just cause to dismiss someone exists must be undertaken using a contextual approach. What may be just cause in one case will not be in another. Similarly, there is no “rule of thumb” with respect to the length of an unexcused absence from work that will constitute abandonment or justify termination.
Courts and arbitrators take a case-by-case approach, reviewing each instance of absenteeism in context of the circumstances. Therefore, depending on the circumstances, an employee may be justifiably terminated for a single unexcused absence, while another may be safe from termination even after multiple unexcused absences.
In Aeichele v. Jim Pattison Industries Ltd., the court found an employee’s absence from work on the day of an important sale was sufficient to justify termination, given the employer had made it clear the employee was not to be absent on that day. It must be noted, in that case, the employee’s willful disobedience was a key factor in the court’s analysis of whether the employer had just cause.
By contrast, in Fitzgibbons v. Westpres Publications Ltd., the leading case on job abandonment, the court held that an employee’s failure to communicate with her employer directly during her medically justified leave of absence did not justify termination. The employee had been on sick leave for months and was in California with friends. The only contact with her employer was through her lawyer. She was dismissed before she could return. Fitzgibbons and subsequent cases show the court will take health issues and other reasonable explanations into consideration when determining if an employee’s behaviour amounts to abandonment.
In most cases, employers would be wise to document the situation, maintain regular contact and issue warnings as appropriate. Like most other circumstances, it is often short-sighted and ill-advised to act precipitously or based upon frustration, even where the situation is such that the employer is understandably frustrated by the “phantom employee” who is on the payroll but never at work.
HR Insider Staff
-
AuthorPosts
