[vickyp]

in reply to: Return to work and not following #90292

A few questions I had while reading this are:

Does the work afford the possibility for the employee to to come and go through the day? Is there flexibility such that you could work 9-12, then 3-7, then 10-12, so long as in a 24 hour period you were working 8.5 hours. In other words, are you measured by results or hours?
Are you concerned about losing this employee because they are critical or because of the circumstances and a desire to “do the right thing” or be the “good guys”?
Have you been diligent in documenting everything to date?
On the basis of what you have expressed, here are our thoughts.
First, it seems you have done everything and more to accommodate the employee, including developing a return to work plan, for what we assume would be some type of caregiver leave – although you have not specifically addressed whether or not this has been medically diagnosed, where you would be legally bound to accommodate.
Secondly, the employee has not held up his end of the RTW plan. I am sure that the PTSD issues at home are a struggle, and I am empathetic, but he is an employee and work needs to be done.
Third, it seems this is having a negative effect on the culture. Other employees are probably frustrated with the exceptions to the rules that are being afforded to one employee. They are probably unhappy with having to cover work or not being able to depend on a colleague. They are probably unhappy with the daily uncertainty, will he be here today or won’t he?
It would seem like you are at a real risk of wanting to be a “good guy” with one employee and unfortunately coming across as the “bad guy” to all the rest of your employees.
There are two obvious options you can take, each with a certain degree of risk.

Make the employee 100% remote, either contract or employee, and managed by results not hours. I don’t know if the work affords this type of transition (software development, writer, etc.) or not, but if it does and the employee is a good worker when they can work, this may be an option to look at. Of course transitioning an employee from full-time employment to a contract position means a new compensation and management model, as well as tax and benefits implications, but it can be done with minimal downside if both parties are amenable to it.
Terminate the employee. You cannot run a company by managing for one employee. You have accommodated (it would seem) and it appears as if you are experiencing undo harm, at least you have a very strong case for it if the employee was to file a wrongful termination suit. This will show the rest of the team that you support their personal needs, but to a point, and that you have a business to run, where rules are rules, work needs to be done, and the team has to depend on each other while also being accountable to each other. However, if this is the option that you pursue, we cannot stress how important it is that you had the RTW plan and all conversations documented.
The best option here might be for the employee to take a leave of absence for caregiver leave where he and his wife can get the support needed and a realistic plan that allows him to return to work in a full-time capacity.

Meaghan Wilkinson replied 1 year agoEdit Delete
Hello,

To answer the questions above:
1. Employees need to be available to from 9:30-3:30 our core hours. This is the time we request that everyone is to be in the office.
2. He is a good worker and completes all his work – at this point HR is ready to align with policies and terminate – the managers don’t agree with it
3. We have conversation and documentation in for everything on this one.

Thank you very much for the suggestions.

[vickyp]

in reply to: T4s andTax Implications with Remote Workers Outside Canada #90291

Thank you, Rick. These situations can be difficult to navigate, I appreciate you prompt replies and wisdom.

[vickyp]

in reply to: T4s andTax Implications with Remote Workers Outside Canada #90290

No, you had hired the employee to work in Canada. You had allowed for remote work during the pandemic, you did not allow for a permanent move. You may want to offer transitioning the employee to a contractor position if you wanted to keep the employee and eliminate your liability, but moving to another country is a clear frustration of contract. The employee may respond that you have allowed it up to this point, but I think you could reply that his/her working in Europe has made it so the business would have to absorb unique tax and payroll liabilities it cannot take on.

[vickyp]

in reply to: T4s andTax Implications with Remote Workers Outside Canada #90289

Hello Rick,
If we decide to terminate this individual, would there be an issue using the following language?
Due to economic conditions and the risks involved with employing individuals living outside of Canada, we will be terminating employment.

[vickyp]

in reply to: T4s andTax Implications with Remote Workers Outside Canada #90288

Thank you, Rick.
I appreciate your quick and fulsome reply. Hope you have a lovely holiday season.

[vickyp]

in reply to: Lay-Off Employee Due to Work and Organization Restructure #90287

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

[vickyp]

in reply to: Lay-Off Employee Due to Work and Organization Restructure #90286

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

[vickyp]

in reply to: Is There any Standards or Legislation for On Call Pay? #90285

From Pay For No Work – Part I – On-Call by Donovan Plomp of McCarthy Tétrault LLP

In addition to vacations and statutory holidays, there are two key times when an employee who is not performing any productive work may be entitled to be paid under the Employment Standards Act:

– While on-call other than at home; and during travel time.

On-call employees are “at work” and are entitled to be paid regular wages as well as overtime for those hours of work. The Act provides that an employee is “at work” while on call at a location designated by the employer, unless that location is the “employee’s residence”, a term which is narrowly construed and probably does not include most temporary accommodation provided by the employer at or near the worksite.

Employees who are not in their own homes and who are required by the employer to be available to work on an as-needed basis are on-call and “at work” for the purposes of the Act, even if they are sleeping or watching television. There are a number of exemptions set out in the Regulation relating to live-in home support workers, night attendants, residential care workers and certain industry-specific workers such as fish farm workers.

Watch out for:

– Employees who are required to remain at or near the workplace after work and who may be required to work on an as-needed basis; and
– Employees who are on-call at home, but who are subject to significant restrictions, such as a short response time, which effectively curtail the employees’ mobility or freedom.

Possible solutions:

– Do not require employees who remain at the workplace after their hours of work to be available to work on an as-needed or emergency basis; and
– When preparing guidelines for employees on-call, carefully consider the reasonableness of response times or other restrictions.

[vickyp]

in reply to: Salary Increment #90283

According to Bloomberg, the national average is 4.2%, with Alberta coming in just below at 3.8%.

[vickyp]

in reply to: Salary Increment #90282

No specific role. Question is what is the projected salary increase for 2023 in Alberta in manufacturing industry.

[vickyp]

in reply to: Change of Start Date on an EA #90281

Yes, if the start date on an offer letter needs to be changed after the employee has signed it, it is recommended to issue a new letter with the corrected start date. This will ensure that all parties have a clear understanding of the agreed-upon start date, and it will also serve as a legal record of the updated terms of employment.

When issuing a new offer letter, it is important to clearly indicate that it supersedes any previous offer letters or employment agreements.

[vickyp]

in reply to: Progressive Discipline for Drug Recreational User #90280

Hi, Your comment’ …’approach of investigating positive tests to determine whether the employee is an addict or casual user is not only widely followed in union settings but mandatory for all settings’ is something I require a little bit more information on. Can you tell me were to find the requirements for the use of a Substance Abuse Expert in the testing process and whether or not it applies to both workers who properly disclose an addiction and workers who do not?

[vickyp]

in reply to: BC Stat Holiday question #90279

An employee on leave or jury duty is not usually entitled to statutory holiday pay. While on leave or jury duty, an employee is absent without earning wages. As a result, days on leave are not included when determining if an employee is eligible for statutory holiday pay under s.45 of the Act.

However, if the statutory holiday falls on a day when they are on leave or jury duty and an employee is eligible for the statutory holiday, in accordance with s.45, they must be paid for this day regardless of the fact that they are on leave or jury duty. Similarly, if the employee’s contract of employment provides for statutory holiday pay while on leave or jury duty, then the employee is entitled to that holiday with pay.

The answer is not entirely clear on this, it all comes down to employee eligibility for stat pay.

https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-6-section-56#:~:text=Statutory%20Holidays,is%20absent%20without%20earning%20wages.

[vickyp]

in reply to: BC’s National Truth and Reconciliation Stat #90278

Typically, if a Stat Day falls on a weekend, the stat is observed on the first working day after the stat. Since National Day for Truth and Reconciliation falls on the Saturday, the following Monday, October 2 will be the day given off as the stat.

[vickyp]

in reply to: IT and Overtime #90277

The ESA does include a number of exemptions precluding certain classes of workers from overtime pay, such as managers, IT professionals, lawyers, firefighters, ambulance drivers, and a number of other classes of workers. These exemptions are set out in O. Reg. 285/01.

Information Technology Professionals Exemption

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