1. law, govt and politics

NOVEMBER 2014
VOLUME 10 | ISSUE 11
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TERMINATION
After the Axe Has Fallen
T
he worst part of the termination process is wielding
the axe. The second worst part is settling accounts
with the employee after the axe has fallen. Calculating
back pay and termination payments is half the battle;
the other challenge is to ensure that all payments are
properly processed and transmitted to the employee.
Unfortunately, that’s not as simple as it sounds.
Step 1: Gather the Necessary Termination Information
Employers are required to notify employees of
termination in writing (or provide equivalent wages in lieu
of notice.) Even if you don’t prepare the written notice,
you must get a copy of it and ensure that payroll does
likewise. “The termination notice often includes the basics
about the termination, including termination date and, if
you’re lucky, all termination and other payments due the
employee,” explains a leading Ontario payroll consultant.
Unfortunately, termination notices typically leave out the
key information payroll needs to calculate and process
payments. For example, it’s common for a notice to state
that an employee is due earned overtime but not list the
actual amount owed. Another piece of crucial information
that is commonly omitted is an explanation of how earned
commissions are to be paid after termination.
The best way to avoid these problems is for payroll to
let HR (and other departments) know what information
it needs to process termination by listing it in a policy
the way our Model Policy does. Like our Model, yours
should require that payroll be notified of termination
within one day that notice is provided to the employee.
The policy should also explain how basic payments,
such as wages in lieu of notice, overtime, statutory
holiday pay, vacation pay and retiring allowances
are processed upon termination and stipulate the
information required for processing each, including:
ƒƒ Last date of employment;
IN THIS ISSUE
ƒƒ Wages in lieu of notice;
ƒƒ Overtime, call-in, vacation, statutory holiday and
sick pay;
ƒƒ Severance pay and retiring allowances;
Feature: After the Axe Has Fallen
ƒƒ Pension options;
REHABILITATION:
How Far Must You Go to Accommodate Injured Employees’ Return to Work?
corporate takeovers:
Does Corporate Acquisition Trigger Severance Pay Obligations?
Severance Negotiations: Can Employees Sue after They Sign a Severance Agreement?
CASE of the month: Termination of Worker for Lying About Sick Leave Was Excessive
MONTH IN REVIEW: Latest Cases, Laws & Announcements
just Cause: 8 Common Termination Pitfalls to Avoid
Workplace policy: Bring Your Own Device to Work (BYOD) Sample Policy
ƒƒ Commissions due upon and after termination;
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ƒƒ Payments in exchange for a promise not to compete;
ƒƒ and Amounts forgiven on an employee’s debt.
Step 2: Fully Document Payments Due Upon Termination
Many provinces require employers to itemize the
different termination payments made to the employee.
Others, like Ontario, require employers to include an
explanation of how payments were calculated. But
even if the law doesn’t require it, there are 2 good
reasons to itemize and document calculation methods:
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1. Prevent Disputes: Itemizing each type of payment due
upon termination and explaining how it was calculated
makes it harder for employees to claim later that they
weren’t paid for something.
2. Prevent Errors in Withholding: Proper documentation
is crucial to ensure that proper withholdings and
remittances are made on each listed amount.
Step 3: Report All Termination Payments in ROE
Employers must complete a Record of Employment (“ROE”)
when an employee is terminated (or his earnings are otherwise
interrupted). Termination payments, such as wages in lieu of
notice, must be reported in not one but 2 places:
ƒƒ Block 15, which requires employers to report total
insurable earnings and insurable earnings by pay period;
and
ƒƒ Block 17, which requires employers to report all payments
or benefits paid upon, in anticipation of and after
termination.
Anything that’s insurable for the purposes of taking an EI
premium belongs in Block 15, including wages, stat holiday pay,
vacation pay and banked overtime. If there’s been a pay period
with no insurable earnings and the employer must complete
Block 15(c), any payments on termination that are insurable
should be added to the first pay period in Block 15(c) since the
pay periods are reported in reverse order.
Conversely, Block 17 is used only for payments that result from
the termination itself, such as wages in lieu of notice, statutory
severance pay and retiring allowances.
Step 4: Ensure Each Payment Is Made On Time
Employers must pay certain amounts due terminated
employees, such as earned wages, wages in lieu of notice
and statutory severance pay (if any), within a time period set
by law. Although deadlines vary by province, they follow 3
common patterns:
ƒƒ Payment due no later than date of termination (QC and
NU);
ƒƒ Payment due within set time period, usually less than 10
days after effective date of termination or last day worked
(AB, BC, MB, NL, NS, NT, SK and YK); and
ƒƒ Payment due on or before next regular pay period or set
time period (Fed, NB, ON andPEI).
Be extra careful when you prepare and file year-end T4 and
T4A tax slips with CRA for the terminated employee at the end
of the year. Remember to file separate T4 tax slips listing all
EI-insurable payments such as wages, vacation pay, statutory
holiday pay and wages in lieu of notice for each province of
employment. So you might have to prepare more than one T4
tax slip for a terminated employee, depending on when the
employee stops working and how payments are made after
termination.
On the other hand, T4A tax slips, which list non-insurable
payments such as retiring allowances and statutory severance
pay, are based on tax rates of the province where the employee
resides at the time of payment. In the above example, John’s
employer must prepare a T4A tax slip for John’s retiring
allowance using Saskatchewanas the basis. But that would
change if John moved into or out of Québec because Québec
has different income tax rates.
Step 6: Make Sure Employees Don’t Work Past Effective
Notice Date
The employment laws in many provinces—including AB, BC,
NL, NS, NT, NU and YK—specify that a termination notice is no
longer valid if the employee works past the effective date of
the notice. Thus, if the notice lists May 1 as the termination date
and the employee is still working on May 2, the employer must
prepare a new notice with a new notice period to terminate the
employee. Result: Payroll must process termination payments
all over again, since the amount the employee earned after
the first notice could have an impact on the amounts due after
the second notice. So, once you give notice of termination,
make sure the employee doesn’t continue to work past the
effective date.
Also be aware that there are 3 jurisdictions where you don’t
necessarily have to create a new notice for employees who
work for a limited period after the effective date of the original
termination notice::
ƒƒ Federal: Employees may work two weeks after notice
period expires;
ƒƒ New Brunswick: Employees may work for one month after
notice period expires;
ƒƒ Ontario: Employees may work 13 weeks past effective date
of termination, provided that the continued employment is
considered “temporary.”
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In some provinces, the time required for paying earned wages
is different from the time for reimbursing unused vacation
leave. For example, in NS, wages (including earned holiday
pay) must be paid on or before the last day of the notice
period, regardless of whether the employee received pay in lieu
of notice. But unused vacation leave is due within 10 days of
the employee’s actual termination date.
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REHABILITATION
How Far Must You Go to Accommodate Injured Employees’ Return to Work?
A
n auto supply plant employee makes repeated attempts to
return to modified work from an injured back. After nearly
2 years of failure, the plant has no more suitable work she can
do. But as the regulatory 2-year deadline for re-employment
approaches, the plant cuts her a break: Rather than terminate
her, it proposes to put her on indefinite leave of absence due
to disability and promises to let her know when and if it finds
appropriate work for her. But the employee isn’t satisfied. She
sues for disability discrimination, claiming that the employer
didn’t do enough to accommodate her.
The Ontario arbitrator disagrees. Citing the employer’s “credible”
return-to-work program and genuine efforts to accommodate,
it throws out the employee’s disability discrimination complaint
[Automodular Corp. v. CAW-Canada, Local 1256 (Petkovska
Grievance)], [2011] CanLII 20787 (ON L.A.), April 7, 2011].
THE PROBLEM
Denying injured employees the opportunity to return to
work may be considered disability discrimination for failing
to “accommodate” the employee. But there are limits to
accommodation. The Petkovski Grievance is a good example
of how far you must go to accommodate an injured employee
during the vocational rehabilitation/return-to-work process.
THE EXPLANATION
Human rights laws require employers to accommodate disabled
employees to the point of undue hardship. To the extent an
injury or illness that causes the employee to miss work is
considered a physical or mental disability under human rights
laws, the duty to accommodate kicks in. Result: Employers
can’t simply fire injured employees because they’re injured and
can no longer work. They must work with employees to restore
them to work as soon as safely possible.
There’s another law at work. Workers’ comp laws in many
provinces require employers to re-employ employees who suffer
work-related injuries or illnesses under certain conditions. Reemployment under workers’ comp overlaps accommodation
under human rights. In both cases, the employer must make
a functional assessment of the employee’s occupational
capabilities and offer them either their old job or, if they’re
not capable of doing, alternative work that’s productive
and suitable to the employee’s capabilities. RTW programs
are designed to manage this accommodation process and
get employees back to work in a way that honours their reemployment and accommodation rights.
THE EMPLOYER’S DILEMMA
Unfortunately, things don’t always work out. RTW only works if
the employee is actually capable of working. Some work injuries
and illnesses are too severe to allow for recovery. In many cases,
RTW breaks down because of disagreement and dispute. One
common problem arises when employees refuse to cooperate,
e.g., by authorizing their doctor to give the employer the medical
information it needs to assess the employee’s occupational
capabilities and determine what kind of work to offer.
But the most common cause of RTW disputes involves the
nature of accommodations requested. The law requires
employers to make “reasonable” accommodations to the point
of undue hardship. Many times, the sides disagree about which
side of the reasonable/undue hardship line the employee’s
desired accommodation falls on.
Featured Tools
Understanding HR Policies: Return to Work
What you need to do to comply with an employer’s return-to-work duties.
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THE PETKOVSKI GRIEVANCE
That’s what happened in the Petkovski Grievance. The case
is a good illustration of how courts and arbitrators decide
whether an accommodation is reasonable. All through the
employee’s prolonged and fruitless effort to recover and
return, the company made good faith efforts to accommodate
her, including:
ƒƒ Preparing not one but 3 separate RTW plans;
ƒƒ “Proactively” monitoring her condition;
ƒƒ Modifying each plan in accordance with the latest bad
medical news; and Letting her do nominal value jobs such
as holding nuts and bolts for other workers for the sake of
giving her something to do.
But the employee’s condition kept getting worse to the point
where she could tolerate standing for no more than 30 minutes
and sitting for no more than an hour. Short periods of work
were followed by renewal of sick leave. And as her condition
deteriorated, the employer ran out of jobs that she could
perform. Accordingly, it had to dramatically reduce her work
hours. To make matters worse, it was becoming increasingly
clear that her impairments were permanent and that hopes for
recovery were nonexistent.
Under Ontario law, the company could have cut ties on the
second anniversary of her injury. So offering to put her on
permanent disability leave and leave the door open to return
should suitable work present itself went beyond the company’s
duty. So, the arbitrator concluded that the employer had
satisfied its duty to accommodate the employee to the point
of undue hardship.
THE LESSONS
Your duty to accommodate an injured employee’s return to work
goes only so far. As an HR manager, you need to understand
where to draw the line between reasonable accommodation and
undue hardship in seeking to return your own employees to work.
Use Petkovski, as a yardstick in making this difficult determination.
Recognize, first, that neither the workers’ comp duty to reemploy nor the human rights duty to accommodate requires
you to provide work to an employee who isn’t medically
capable of performing work.
What you are expected to do is show good faith and make a
reasonable effort to ascertain the employee’s capabilities and offer
work that is commensurate with those abilities—not just any work
but work that is meaningful and productive to your company.
Perhaps most important of all, recognize that in addition to
being an economically sound business practice, implementing
a systematic RTW program goes a long way in ensuring that
your company makes the good faith efforts required in seeking
to help injured employees return to work.
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CORPORATE TAKEOVERS
Does Corporate Acquisition Trigger Severance Pay Obligations?
C
orporate takeovers summon up images of
mass layoffs. But mergers and acquisitions
don’t always result in pink slips. In many cases, the
acquiring company wants to take on the target
company’s employees on substantially the same
terms and conditions. The acquirer might even
recognize the seniority employees accumulated
with the target employer. Employees who find
themselves in this position might consider
themselves lucky. Or, they might do what a group
of Ontario employees did: Demand severance
pay from the old company. Here’s a look at a
leading case and what it says about the severance
obligations of employers that sell their business.
Although the case comes from Ontario, the same
legal principles apply in all parts of Canada.
THE CASE
What Happened: Bombardier sold the assets of
its IT division to an outside company called CGI.
The contract required CGI to offer the division’s
194 employees full-time employment doing
pretty much the same work at the same pay. CGI
also promised to honour each employee’s years
of service with Bombardier for seniority and
Employment Standards Act (ESA) purposes. All of
the employees accepted CGI’s offer and went to
work for the company. Six months later, they sued
Bombardier, their former employer, for severance.
November 2014 | HRInsider.ca
What the Court Decided: The Ontario Court of
Appeal ruled that Bombardier had no obligation
to pay the employees severance benefits.
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How the Court Justified the Decision: The
court cited Sec. 9 of the ESA which states that
employment “shall be deemed not to have
been terminated or severed” for ESA purposes
if an employer sells part of its business and the
buyer employs the seller’s employees [Abbott v.
Bombardier Inc., [2007] O.J. No. 1173].
WHAT IT MEANS
‘Sounds like a no-brainer, right? In accepting the
new employer and later turning around and suing
the old employer for severance, it feels like the
employees were trying to have their cake and eat
it too. In fact, though, the employees did have
a decent case for severance. They argued that
Bombardier’s transfer of the division’s assets to
CGI was not a sale of a part of its business under
Sec. 9. In support, they cited a 1993 case saying
that a transaction constitutes a sale under what
is now Sec. 9 only if the person acquiring the
assets takes “possession of a going concern.” The
employees claimed that CGI hadn’t assumed a
“going concern;” Bombardier merely transferred
its IT operation to CGI and made it look like a sale
to avoid severance obligations.
But the argument failed. According to the court,
the intent of Sec. 9 is to ensure that employees
don’t lose the benefits and entitlements they’ve
accrued with a previous employer when the
business gets sold and the employees go to work
for the acquiring company. At the end of the day,
the employees in this case lost because they were
just as well off with CGI as they had been with
Bombardier as far as their ESA-protected interests
were concerned—notwithstanding some slight
differences in benefits packages.
Impact on You
Sec. 9 is hardly unique to Ontario. The employment
standards laws of all provinces and territories
afford employers equivalent protection in the
case of sales of their business. Moreover, the
interpretation advanced by the employees in
Bombardier has been made in other provinces. So
no matter which part of Canada you’re from, the
Bombardier case is relevant to you.
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Severance Negotiations
Can Employees Sue after They Sign a Severance Agreement?
L
ike most employers, you probably require your
employees to sign a release in exchange for
their severance package. Unfortunately, employees
don’t always go in peace. Bad feelings linger.
They talk to a lawyer. The next thing you know,
they’re suing you for damages. It’s at that point
that many employers learn a costly lesson: Courts
won’t enforce a release if they think the severance
deal is too one-sided and the employee was taken
advantage of. Consider the following cases.
RELEASE IS UNENFORCEABLE
FACTS
Entering what he thinks is a “normal business
meeting,” a 20-year employee is handed a letter
advising him that his position has been eliminated
and that “this is your last day.” Sign this release,
the letter continues, and you’ll get 28 weeks’
severance ($30,977) and a continuation of your
benefits through the notice period. Thinking this
is his only option, he signs on the spot. But after
talking to a lawyer, he changes his mind and sues.
DECISION
The Ontario Superior Court allows the case and
bumps notice to 20 months.
EXPLANATION
The release is unenforceable, the court rules,
because:
ƒƒ Notice of 28 weeks as opposed to 27 ¾
required by the ESA was “grossly unfair” for a
20-year employee at the end of his “expected
working life”;
ƒƒ The company didn’t advise him of his right to
talk to a lawyer and made it sound (“This is
the package the company is giving you.”) like
the offer was take-it-or-leave-it; and
ƒƒ The employee was in a state of shock and the
company took advantage of his vulnerability to
get him to sign.
Rubin v. Home Depot Canada Inc., [2012] O.J. No.
2409, May 25, 2012
RELEASE IS ENFORCEABLE
FACTS
An in-house lawyer abruptly fired after 18 months
of effective service is offered a severance package
of 3 months’ termination notice, continuation of
benefits for a month and a letter of reference.
He reads the documents and signs on the spot.
But after finding a lower-paying job and up to
his eyeballs in debt, he claims the release is
unconscionable and sues for a sweeter deal.
DECISION
The Ontario Court of Appeal upholds the release
and throws out the case.
EXPLANATION
The release is enforceable, says the Court, because:
ƒƒ The package was not “grossly unfair”—3
months’ termination notice was about right
for an employee of 18 months and in line with
the severance he’d accepted from his previous
employers;
ƒƒ Although he didn’t get a lawyer’s advice, the
employee was a “senior lawyer with extensive
experience in contract and employment law”;
and
ƒƒ Although making the letter of reference
conditional on signing the deal was
“potentially problematic,” the negotiations
were fair and there was no overwhelming
imbalance in bargaining power the way there
was in Rubin.
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CASE OF THE MONTH
Termination of Worker for Lying About Sick Leave Was Excessive
E
mployers need to manage workers’ time off from work
to keep operations efficient. Workers are entitled
to take sick leave. But workers should actually be sick
if they are going to take advantage of this benefit. Sick
leave isn’t just additional vacation days. So if a worker
abuses sick leave, an employer is justified in imposing
discipline. But think about how you want to respond to
sick leave violations and make sure everyone is aware
of the consequences and you follow through, applying
your policy uniformly. Here’s how one employer learned
the hard way how to handle potentially false sick leave
claims.
November 2014 | HRInsider.ca
THE CASE
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What Happened: An ambulance company terminated
one of its medics and the medic claimed it was a
response to his support for certification of a union. The
employer argued it terminated the medic because he
falsely alleged he was sick to get a day off when his
vacation request for that same day was denied. The
employer had denied his request for a vacation day
to take his children’s nanny to the airport so she could
return to the US. The medic called a supervisor the
morning of the nanny’s flight and said he was sick and
couldn’t work. The supervisor never asked him for a
doctor’s note to verify he was sick. The employer was
suspicious and started an investigation but the medic
was paid sick leave for the day. The medic had spent the
day he called in sick taking the nanny to the airport and
his kids to and from school and stopping by his parents’
house. The employer argued the medic’s claim for sick
leave pay was fraudulent. The employer’s policy said if
sick leave is misused, the employer could cancel sick
leave or impose progressive discipline. The employer
also claimed workers are required to supply a physician
note to support sick leave. When challenged, the medic
admitted taking the nanny to the airport but claimed
he really did feel unwell due to sinus symptoms. Citing
the fact that emergency workers had access to people’s
homes and personal belongings, the employer said trust
in its staff was essential and the medic’s misuse of sick
leave after being denied the vacation leave caused the
employer to lose that trust. Also, the employer asserted
that the medic’s submission of a claim for sick pay and
keeping that payment was fraud and theft. Therefore,
the employer claimed termination was justified.
incur extra costs. It also adds to other workers’ loads
and inconveniences both the covering workers and the
employer. Thus, the failure to work that day justified
discipline, the arbitrator concluded.
However, the employer’s handling of the incident wasn’t
acceptable. While the employer claimed a sick note from
a physician was required to be supplied and the medic
failed to do so, the arbitrator found that the medic
wasn’t asked for a note and this requirement wasn’t
regularly enforced. Further, the arbitrator criticized
the employer for paying the sick leave claim when it
doubted its validity and had begun an investigation.
Since the employer used the fraudulent claim as a basis
for dismissal, the arbitrator indicated the employer
shouldn’t have paid the claim and may have done
so to “shor[e] up its position to support discharge.”
Finally, the arbitrator noted that the employer’s sick
leave policy didn’t indicate immediate termination was
possible for misuse of sick leave. So the arbitrator found
termination was excessive and imposed a one-day
unpaid suspension instead [Health Sciences Association
of Saskatchewan v Medstar Ventures Inc, [2014] CanLII
49746 (SK LA), Aug. 28, 2014].
ANALYSIS
The employer in this case did three things wrong:
1. It alleged physician notes must be supplied to
support sick leave but it didn’t regularly enforce
that requirement.
2. The employer suspected lying, began an
investigation but still paid the medic and then used
that payment as grounds to allege fraud.
What the Arbitrator Decided: The Arbitrator
decided termination was too excessive and required
reinstatement with a suspension instead.
3. Finally, the employer failed to clearly warn workers
in its sick leave policy that lying about being sick
and misusing sick leave can lead to immediate
termination.
The Arbitrator’s Reasoning: The arbitrator found the
medic’s claim he was sick didn’t fit with the evidence,
showing he was well enough to drive the nanny to the
airport and drive his children to and from school. Falsely
taking sick leave “can be analogous to employee theft”
the arbitrator said, explaining that when a worker is
out sick the employer must find a substitute and can
In this case, if the employer clearly expressed in its
policy the sick leave requirements and consequences for
violations and uniformly enforced them, it may have been
able to terminate the worker. So be sure to craft leave
policies that set clear requirements for taking leave and
expessly state the potential consequences of violations.
Then, make sure you uniformly enforce the policy.
November 2014 | HRInsider.ca
Month in Review
A roundup of new legislation, regulations, government announcements, court cases and arbitration rulings
ALBERTA
FEDERAL
LAWS & ANNOUNCEMENTS
Cases
Sept. 30: OAS
For 2014’s final quarter, Employment and Social
Development Canada reports that OAS rates are as follows:
ƒƒ Guaranteed Income Supplement (Single/Spouse of
non-pensioner): $764.40.
ƒƒ Guaranteed Income Supplement (Spouse of
pensioner or Allowance recipient): $506.86
ƒƒ Maximum basic OAS pension for 65-year olds (or
older): $563.74/month
ƒƒ Allowances: $1,070.60 (Regular); $1,198.58
(Survivor)
Injured Worker Terminated For Cause Loses TTD Benefits
A worker was injured his leg and knee in a work-related
accident. He returned to work but was terminated
while still on modified duty. The employer claimed the
termination was for cause due to the worker’s multiple
safety violations and verbal abuse of his supervisor.
After termination the workers’ compensation board
began paying temporary total disability (TTD) benefits
and the employer challenged that decision. The Dispute
Resolution and Decision Review Body ruled the employer’s
termination and withdrawal of the modified work entitled
the worker to TTD benefits. The employer appealed. The
Appeals Commission ruled that because the worker’s
modified work program ended upon termination and the
termination was due to his safety violations and verbal
abuse, that “modified work program ended for reasons
within the worker’s control,” which disentitled him to TTD
benefits [Decision No.: 2014-0854 (Re), [2014] CanLII
56055 (AB WCAC), Sept. 24, 2014].
Sept. 25: SMEs
Small to mid-sized businesses have a new resource for
doing business outside Canada. Export Development
Canada (EDC) announced the launch of a website, The
Enterprise Canada Network which will connect sellers
and buyers of goods and services to help smaller entities
make connections and find business opportunities.
The website results from joint efforts of the EDC and
Canadian Manufacturers & Exporters.
Sept. 22: SnapMail
Small businesses just acquired another resource to help
them market their services or products. The Canada
Post announced a new tool, Snap Admail, which is an
online resource to help small businesses with direct mail
campaigns. The program offers designs and templates
for brochures, pamphlets, postcards and flyers or lets
the user upload their own design.
Sept. 12: EI
According to the Canada Employment Insurance
Commission, 2015 EI maximum insurable earnings will be
$49,500. Quebec Parental Insurance Plan premiums will
be $1.54 per $100 of insurable earnings. Self-employed
workers must now earn $6,645 effective January 1, 2015
to qualify for special benefits.
Sept. 11: Tax Relief
A Small Business Job Credit will lower EI premiums
to $1.60 per $100 of insurable earnings for 2015 and
2016 by providing a credit to those employers paying
$15,000 or less in premiums . The credit is automatically
calculated is predicted to help small businesses save
over $550 million in the next two years.
Amputee Not Entitled to Compensation for
Modification to Cycle When Other Transport Available
A workers’ work-related injury led to amputation of his
left leg below the knee. The workers’ compensation
board provided him a four wheeled scooter and modified
his truck but denied compensation for a reverse kit for
his motor tricycle. The worker appealed. He claimed he
used the tricycle daily and because of his injury he can’t
back up the tricycle without assistance unless he has
the reverse kit. The appeals commission found the kit
for the cycle wasn’t the “most practical form of personal
transportation to accommodate the worker’s disability.”
The worker was independently mobile with his personal
vehicles and a scooter, the commission found. While it
acknowledged that the worker preferred his tricycle,
the commission found modifications to the cycle
wouldn’t provide him with the most practical form of
transportation for his disability. Therefore, the appeals
commission upheld the denial of compensation for the
reverse kit for his cycle [Decision No: 2014-0500, [2014]
CanLII 53687 (AB WCAC), Sept. 16, 2014].
BRITISH COLUMBIA
LAWS & ANNOUNCEMENTS
Sept. 10: Franchise law
A new franchise law has been proposed based on other
provinces’ laws, to protect franchisee’s interests and
standardize regulations. Provisions would govern sale
of franchises, require pre-sale disclosure agreements
and address dispute resolution. Comments can be sent
to the British Columbia Law Institute until Dec. 10, 2014
Cases
Utility Didn’t Have Duty to Report Incident Involving
Another Employer’s Worker
A worker was injured when he contacted a live power
line. His employer called the utility for help rescuing him,
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Sept. 29: WHMIS
A new e-course is available to help get workers ready
for changes to the Workplace Hazardous Materials
Information System (WHMIS) which are needed for
global harmonization. The course is free for the first
100,000 participants thanks to funding from Health
Canada. The course is produced by The Canadian Centre
for Occupational Health and Safety and the Workplace
Hazardous Materials Bureau of Health Canada and
addresses GHS requirements for communicating hazard
information via labels and safety data sheets. For more
information see the CCOHS website.
7
Month in Review
which the utility provided. The utility didn’t report the
incident to the workers’ compensation board, however,
arguing that it wasn’t an employer in this case. The utility
was charged with violating the reporting requirement.
A court ruled that it was unreasonable under these
circumstances to conclude that the utility was an
employer with a reporting duty and ordered a review
of the violation. A review officer said the utility had a
reporting duty here not only as an employer but also
as the owner of the site with a “significant connection”
to the incident. A subsequent court again disagreed
as did an appeals court. The appeals court recognized
that the OHS law does address the duties of owners but
that it doesn’t include a reporting duty [BC Hydro and
Power Authority v. Workers’ Compensation Board of BC,
[2014] BCCA 353 (CanLII), Sept. 15, 2014].
MANITOBA
LAWS & ANNOUNCEMENTS
Sept. 24: Manufacturing Jobs
The government is investing $1 million over two years
to help the heavy vehicle manufacturing industry, which
it cites as a source of jobs and economic growth for
the province. The funds benefit Manitoba’s Vehicle
Technology Centre (VTC), a nonprofit that supports
development of new technologies. The VTC says the
heavy vehicle industry provides not only 6,500 jobs but
also $1 billion in exports yearly.
Sept. 3: Safety
Anticipating millions of dollars in road construction
projects for the fall, the Infrastructure and Transportation
Minister reminded travelers to observe signs, drive
cautiously and watch out for road construction workers.
The reminder came with the release of a report on the
significant list of millions of dollars in highway renewal
projects scheduled for the next five years.
NEW BRUNSWICK
November 2014 | HRInsider.ca
LAWS & ANNOUNCEMENTS
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Sept. 30: Jobs
A new premier-designate will assume responsibility
for innovation efforts and a provincial job board. The
innovation efforts will promote entrepreneurship and
research at universities and research centres. The job
board will have leadership from ministers and deputy
ministers of economic departments and executives of
other agencies and will “set policy on jobs, establish
targets for job creation and hold government agencies
and personnel accountable for meeting the objectives.”
NEWFOUNDLAND & LABRADOR
LAWS & ANNOUNCEMENTS
Sept. 2: Pensions
Changes to the Public Service Pension plan will become
effective January 1, 2015, according to an agreement
between unions representing employees of the plan
and the NL government. A 5-year transition period will
apply to early retirement changes that won’t affect
current retirees. The government and the unions will
be responsible for the plan under a joint trusteeship
with NL providing $2.685 billion over 30 years to cover
unfunded liability and the unions contributing through
rate increases and other plan amendments.
NOVA SCOTIA
LAWS & ANNOUNCEMENTS
Sept. 24: work
The Labour Market Agreement for Persons with
Disabilities is yielding $225,000 in this year and
$400,000 next year for a workplace attendant support
program. The program provides up to $20,000 to each
client annually to help those with disabilities get and
maintain jobs.
Cases
Worker’s Fall on Ice on Dock Was More Likely Than
Not Work Related
An employer appealed a finding that its worker was
injured during the course of employment. The worker
slipped on ice on a dock. The appeals tribunal found the
injury occurred in the course of employment because
it occurred at a time and in a place consistent with his
employment and while he was acting either directly
or incidentally related to his employment. The tribunal
relied on the following facts: the worker was on call
24 hours a day 7 days a week, needed a pass issued
only to employees for access to the dock and despite
the worker’s initial statement that he was there to see
a friend, there were facts indicating it was more likely
than not that his visit to the dock was work related.
Further, the employer provided no other evidence that
the worker wasn’t engaged in a work related activity.
The tribunal was also not convinced by the employer’s
claim that the worker’s failure to wear boots was the
cause of his fall—because his fall on the ice could have
happened regardless of footwear. Thus, the worker’s
injury was compensable and the employer’s appeal was
dismissed [2014-88-AD (Re), [2014] CanLII 53512 (NS
WCAT), Sept. 15, 2014].
NORTHWEST TERRITORIES
LAWS & ANNOUNCEMENTS
Aug. 12: Job Grant
The governments of Canada and NT announced the
Job Fund Agreement’s signing, providing $1.1 million for
programs and services that help residents get needed
skills to obtain jobs. Through the Job Grant, employers
can obtain for funding to cover training costs for workers.
NUNAVUT
LAWS & ANNOUNCEMENTS
Aug. 25: Internet
The government will fund efforts to increase access to
high-speed internet access for Nunavut and northern
Quebec. Better access will allow residents to participate
November 2014 | HRInsider.ca
Month in Review
ONTARIO
LAWS & ANNOUNCEMENTS
WSIB
WSIB announced new and amended policies effective
November 1, addressing work-related injury issues:
ƒƒ A new policy addressing pre-existing conditions
offers guidance on distinguishing work related and
non-work related injury when pre-existing conditions
are involved.
ƒƒ A new determining permanent impairment policy
establishes requirements for demonstrating a workrelated permanent impairment based on clinical
evidence.
ƒƒ Revisions to the recurrences policy address benefit
determinations in the case of recurring work related
injuries or illness.
ƒƒ Replacement of five work disruption policies with
two policies discussing temporary and permanent
work disruptions, setting criteria for determining if
additional earnings loss during work disruption is
due to work-related injury or disease.
Sept. 3: Poverty
A new Poverty Reduction Strategy involves several efforts
to help those in poverty get training and jobs. Highlights:
ƒƒ Housing assistance for those with mental illness and
adictions.
ƒƒ $42 million in funding for community programs
targeting homelessness.
ƒƒ Increased maximum annual benefit for Ontario Child
Benefit.
ƒƒ Health benefits for low income families’ children.
Cases
Isolated Act of Violence Warranted Suspension, Not
Termination
Worker was fired for one act of physical violence against
a co-worker and filed a grievance. The worker claimed
he was provoked but apologized, admitted the conduct
was wrong and promised it wouldn’t happen again and
he agreed to attend an anger management program. The
labour arbitrator ruled that because of the “seemingly
isolated nature of the occurrence,” lack of disciplinary
record and remorse, he should be reinstated with a
suspension. His reinstatement was conditioned on
attending an anger management program and if the
conduct occurred again, he could be terminated [Tenneco
Canada (Walker Exhausts) v United Steelworkers, Local
2894, [2014] CanLII 51647 (ON LA), Sept. 8, 2014].
PRINCE EDWARD ISLAND
LAWS & ANNOUNCEMENTS
Sept.: Workers’ Comp
The following Workers’ Comp policies have been revised:
ƒƒ POL-15, Clearance Certification (formerly Clearance
Certificate) –changes clarify penalty for failure to get
a clearance letter for subcontractors or contractor
ƒƒ POL-44, Clothing Allowance – increases yearly
clothing allowance reimbursement
ƒƒ POL-50, Policy Development and Maintenance
(formerly Maintenance and Development of
Policies) – indicates CEO has approval authority for
operational policies; WCB won’t use the 60-month
policy review.
QUÉBEC
LAWS & ANNOUNCEMENTS
Sept. 5: Labour Market
Statistics Canada reported that Quebec’s August
unemployment rate was 7.7%, down from 8.1% in July.
The report also indicates there were 4,100 more jobs in
August.
Aug. 25: Internet
The government will fund efforts to increase access to
high-speed internet access for northern Quebec and
Nunavut. Better access will allow residents to participate
in e-commerce, find employment opportunities, engage
in distance learning and provide other benefits to the
economy.
SASKATCHEWAN
LAWS & ANNOUNCEMENTS
Aug. 25: Job Fund
The Governments of Canada and SK announced signing
of two agreements to promote jobs:
ƒƒ The Canada-Saskatchewan Job Fund Agreement
promotes efforts to help First Nations, Métis people
and those with low literacy.
ƒƒ The
Canada-Saskatchewan
Labour
Market
Agreement for Persons with Disabilities which brings
$10.8 million a year for services that can help persons
with disabilities obtain jobs.
Sept. 5: Labour Force
July employment growth in the province was 1.5% with
8,700 more SK residents employed than July 2013.
August’s rate was similar at 1.3% and 7,500 more jobs than
in August 2013. Even better news: SK’s seasonally adjusted
unemployment rates of 3.2% for July and 4.2% for August
are both significantly below the 7% national rate.
YUKON TERRITORY
LAWS & ANNOUNCEMENTS
Aug. 29: Violence
A September forum focused attention on violence against
women, “at work and in the home and community.” The
Yukon Advisory Council on Women’s Issues and the
Liard Aboriginal Women Society presented the forum
to promote understanding and action against violence
and abusive behavior. Thanks to funding from the
Women’s Directorate and the Community Development
Fund attendance at the forum was free.
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in e-commerce, find employment opportunities, engage
in distance learning and provide other benefits to the
economy.
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Just Cause
8 Common Termination Pitfalls to Avoid
I
t costs a bloody fortune to fire an employee,
including wages in lieu of notice, overtime,
vacation, stat holidays, retiring allowances, etc.
The good news: You can avoid all of these costs if
you fire the employee for “just cause,” i.e., conduct
so egregious that it makes it all but impossible for
you to ever trust the employee again.
The bad news: If the employee sues and a judge
or arbitrator finds that you did not have just cause,
you may end up owing the employee thousands of
dollars in damages for wrongful termination.
Bottom Line: As HR director, you have to help
your own organization make sound judgments
about whether it has just cause to terminate an
employee.
Due Process Is Just as Important as What the Employee Did
November 2014 | HRInsider.ca
In judging just cause, the natural tendency is to focus
on what the employee did wrong. In fact, certain
serious offences like theft, gross incompetence,
habitual neglect and insubordination are more
likely than others to cross the line into egregious
and constitute just cause; but then again, they
may not. There’s no specific definition that allows
us to reliably say that “conduct X is just cause but
conduct Y is not.” Thus, for example, theft may
be just cause in one case but not in another. It all
depends on the circumstances involved.
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One of the most crucial of these circumstances
is what the employer does. In evaluating whether
there was just cause to terminate, judges and
arbitrators look not just at the nature of the
employee’s offence but also whether the employer
provided due process.
More often than not,
employers who come out on the wrong end of a
just cause lawsuit lose because they do something
wrong in making the termination decision and
carrying out the termination process.
8 Common Termination Traps to Avoid
1. Lack of an HR Policy
It’s extremely hard to justify termination for just
cause without clearly written HR policies. Why are
policies so important? Answer: Because they let
your employees know what you expect of them
and provide the legal basis for discipline in the
event of infractions.
Example: Ontario employer with no policy banning
moonlighting has no just cause and must pay
$12,000 for wrongfully terminating sales rep for
working nights at another company [Atkins v.
Windsor Star, [1994] O.J. No. 623].
Example: 7-Eleven doesn’t have just cause to fire
a senior store manager for selling cigarettes to
customers who look underage without asking for
ID because its policy was vague, subjective and
left employees to make their own judgments about
how old customers looked, [Salkeld v. 7-Eleven,
[2010] M.J. No. 238].
2. Failure to Follow Disciplinary Procedures
One of the best ways to lose a just cause case—
and end up paying damages to employees who
engage in serious misconduct—is by failing to
follow your company’s disciplinary policies and
procedures.
Example: Storm door manufacturer doesn’t
have just cause to fire production director for
ineffectiveness after one written warning when
progressive discipline policy requires a series of
warnings [Laszczewski v. Aluminart Products Ltd,
2007 CanLII 65493 (ON S.C.)].
3. Lack of Warning
While there are some offences that can never be
tolerated, courts and arbitrators are often reluctant
to uphold termination for a first offence and insist
that an employee receive at least one warning.
Example: No just cause to fire a chef for bad
mouthing management when the chef was never
warned that saying negative things about the boss
was a fireable offence [Butschler v. Waters, 2009
NUCJ 4 (CanLII)].
Example: Frequent absences, lack of respect for
co-workers and a lousy attitude are normally just
cause. But the dental hygienist in this case was
entitled to at least one warning. While defensible
as a moral principle, the boss’s “everybody should
be accountable for her own actions” and “I don’t
believe in warnings” philosophy didn’t cut it as
a matter of law [Thompson v. Flemming, [2009]
N.B.J. No. 412].
4. Lack of Clarity
Courts and arbitrators look not just at if a warning
was delivered but how clear it was. Employees need
to understand precisely what they did wrong and
why it was wrong. Otherwise, it may be inadequate.
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1294
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Example: No just cause to fire sawyer for repeatedly
fighting with co-workers after written warnings
because the warnings didn’t explain what he did
wrong and what would happen if he committed
another violation [Allen v. Devon Lumber Co.,
[2006] N.B.J. No. 528].
5. Lack of Opportunity for Correction
Judges and arbitrators like warnings that are not
merely punitive but opportunities for redemption.
And they’re unlikely to find just cause if they
believe that the employee who received the
warning didn’t get a fair opportunity to clean up
his act and be successful.
Example: A BC college puts a poorly performing
instructor into a corrective action program. But
then it loses patience and fires the instructor
before the corrective action program has run its
course. Result: No just cause [Ntibarimungu v.
Vancouver Career College, [2009] B.C.J. No. 1657,
Aug. 11, 2009].
6. Lack of an Investigation
It’s almost impossible to justify termination when
the decision is based merely on a suspicion or
accusation and isn’t supported by the findings of
an investigation. Lack of a full and fair investigation
is especially common in cases involving sexual
harassment.
Example: No just cause to fire driver accused
of sexually harassing trainees because the
investigation was rushed, sloppy and one-sided
[C.R. v. Schneider National Carriers, Inc., 2006
CanLII 532 (ON S.C.)].
Example: No just cause to fire foreman for
“blustering” and being drunk at work when steel
company didn’t bother to investigate either
alleged incident [Lewis v. M3 Steel (Kamloops)
Ltd., [2006] B.C.J. No. 961].
7. Lack of Evidence
Terminating an employee without reliable evidence
of misconduct is indefensible regardless of what
the employee allegedly did or didn’t do.
Example: No just cause to fire chief administrative
officer for dishonesty because there’s no evidence
to support the charge [Langan v. Kootenay Region
Metis Association, 2008 BCSC 1169 (CanLII)].
Example: Failing a polygraph test doesn’t disprove
denials of receptionist accused of pocketing
company cheques and isn’t reliable evidence
justifying termination [Slipp v. Woodstock (Town),
2008 NBQB 166 (CanLII), May 22, 2008].
Example: No just cause to fire salesman for poor
performance when evidence, including a positive
annual review completed just 2 months prior,
shows that he was actually performing well. [White
v. John White Ltd., [2007] N.S.J. No. 271].
8. Lack of Consistency
Before you fire an employee for violating a
company policy, make sure that your employees
understand the policy—and that you enforce it
consistently. Don’t let an employee violate a policy
several times without repercussions or even a
warning, then fire him for a subsequent violation
of the same policy.
Example: Using an auto shop to perform personal
repairs on weekends isn’t cause when the employer
not only approved but encouraged such actions in
the past [Crimi v. Sun Sun Holding, [2009] A.J. No.
1471].
Example: No just cause to fire a financial advisor
for violating ethical restrictions on trading when
firm knew about similar transgressions, routinely
overlooked them in the past and had a culture of
noncompliance [Soost v. Merrill Lynch Canada Inc.,
[2009] A.J. No. 1126].
Example: No just cause to fire employees for
drinking beer at work when the employer not
only knew it was going on but supplied the kegs
and even downed a few brews himself [Ritchie v.
830234 Ontario Inc. (Richelieu Hardware Canada
Ltd.), 2009 CanLII 34028 (ON S.C.)].
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1295
WORKPLACE POLICY
Bring Your Own Device to Work (BYOD) Sample Policy
Use this policy to help employees understand the
expectations related to the use of personal electronic
devices during and for work purposes.
Overview
Bringing your own device to work is a common occurrence. We recognize that for some employees
bringing and using a personal electronic device, including tablets, laptops, smart phones and other
devices is convenient and practical. However, the use of personal devices for work purposes and
during work time must be well managed.
Purpose
This policy will help our employees understand the appropriate use of their personal electronic devices
for work purposes and during working hours including security, access to the network and details of use.
The purpose of this policy is to:
ƒƒ Protect the security and integrity of (company name) information, data, technology and
technology infrastructure.
ƒƒ Clarify for employees the limitations and scope of personal and business use of a personal
electronic device during working hours and when accessing the company network including
outside normal working hours.
General Use and Permissions
Our organization does grant our employees the right to bring and use their own personal electronic
devices to work and for work purposes. These devices must be identified to and approved by IT before
accessing the organizations network. We do reserve the right to revoke this permission at our own
discretion if the user does not abide by the policies we have established.
All employees must agree to the terms and conditions of this policy and our expectations in order to
connect personal electronic devices on the company network or for work purposes (such as emailing
clients or colleagues, accessing and storing organizational information).
Employees must present their Personal Electronic Device to IT for training and review for setup and
security reasons. We reserve the right to remove any and all organization data from the employee’s
personal device when we deem it necessary and appropriate and will take every precaution not to
remove or damage the users personal information or data or access the same during the process of
removing our data.
Acceptable Use
November 2014 | HRInsider.ca
ƒƒ Activities that directly or indirectly relate or support the business of (company name) are defined
as acceptable use. For example communicating to those connected with the organization, accessing
the organization’s network, storing, transferring or inputting business information, research and
related activities (within our general security guidelines including confidentiality restrictions).
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ƒƒ The device may be used to connect to the organizations network to access applications,
calendars, emails, documents, Intranet, etc. (based on an employees profile this access may be
restricted or limited).
Restrictions
ƒƒ During working hours employees using their personal devices must refrain from accessing
certain websites in accordance with our policy on ‘appropriate websites’. These websites include
but are not limited to . . . .
ƒƒ Employees are restricted from downloading applications that can access the company network
which are not approved. Generally applications available from approved sources such as
Google Play, Itunes and . . . . are permissible (check with IT or Security when in doubt before
downloading any unapproved application).
ƒƒ Accessing personal games, messages, communications, photos, social networks and other
content on a personal device during work hours must be reasonable and comply with the
policies on appropriate work activities. See “Use of Time at Work Policy’
ƒƒ Use of personal device while driving or when operating equipment is not permissible except in
certain situations where a device is appropriately used hands free.
ƒƒ Use of cameras for recording work related tasks or activities in the workplace is not permissible
unless previously approved by IT, HR or a supervisor/manager
ƒƒ Devices may not be used to harasses, intimidate or other inappropriate activities
ƒƒ Device may not be used to gather, store or share proprietary information including information
from our organization. When accessing our organizations network the device may not contain
proprietary information from another organization and proprietary information from another
organization may not be uploaded or otherwise stored on our organizations network.
ƒƒ Device may not be used to conduct outside business activities during working hours.
Current List of Approved Devicese
ƒƒ Smartphones: Including Android, Iphone, Blackberry, and Windows phones (list of models,
operating systems and versions will be available from IT)
ƒƒ Tablets: Including Ipad, Android, Blackberry (list of models, operating systems and versions will
be available from IT)
ƒƒ If your device is not on the approved list of devices please see IT for an evaluation
Cost Sharing
Personal Electronic Devices used for work purposes may/may not be eligible for cost sharing (reimbursement).
ƒƒ May be eligible for reimbursement and/or the organization will contribute X amount towards
the purchase of a new device.
ƒƒ Our organization may pay a monthly allowance to a) cover an agreed upon maximum cost of the
device including data plan or b) cover an agreed upon percentage cost based on an appropriate
and approved data plan.
ƒƒ The organization will reimburse the employee only for approved additional charges such as roaming
charges, plan overages when the device is used for organizations business (details such as dates,
time and details about the business being conducted must be submitted before approval).
Security
ƒƒ Employee is required to ensure that their device is secure and all organizational data is secure
when stored on their personal device
ƒƒ Employee is liable for costs or activities associated with their personal device including risk
associated with the partial or complete loss of the individuals personal or the organizations data
due to operating system failure, crash, errors, software or hard ware failures, malware, bugs or
viruses or other failures that make the device unusable.
ƒƒ If a personal device is lost or stolen the employee must notify the organization and IT immediately
ƒƒ IT may install a GPS tracking program on the employee’s device and/or the employee is urged to
install a tracking device in the event the device is lost or stolen. The organization will only access
the GPS under approved and appropriate circumstances and in accordance with Canadian privacy
protection laws in our jurisdiction
ƒƒ The organization may disconnect or disable the device from our network at any time and at
our discretion
ƒƒ The organization may remove any and all information related to the organizations business from
the employee’s personal device at our discretion. This includes remotely removing all data when
the device is 1) lost or stolen, 2) the employee is no longer an employee or 3) the organization
has reason to believe the information is being misused or is not secure
ƒƒ The employee will be required to use a secure password to access the company network from
a personal device at all times. Our organizations password requires a minimum 6 character
password that contains one upper case letter, one number and one symbol
ƒƒ Based on the employees organizational profile access to the organization network may be
limited and restricted
Note: failure to appropriately comply with and adhere to our policy on appropriate use of personal
electronic devices in the workplace, including during and outside of work hours, can result in
disciplinary actions up to and including termination (for more information refer to our policy on
“Progressive Discipline”).