Presentation on theme: "Presented by: Rochelle Pauls"— Presentation transcript:
1Presented by: Rochelle Pauls No Nonsense Manager or Bully? Respectful Workplace IssuesPresented by: Rochelle Pauls
2Context: Why is it important to deal with workplace bullying and violence? Positive work environment has consistently been ranked as one of the most important factors employees have indicated influence their decisions when searching for a new employer
3Reasons to Deal with Workplace Bullying Harassment is disrespectful, degrading and demoralizingEmployees perform better in a harassment-free work environmentLegal considerations:Workers’ Compensation ActHuman Rights CodeConstructive dismissal claims
4What is Bullying?The act of intentionally causing harm to others, through verbal harassment, physical assault or more other subtle methods of coercion such as manipulation, including ignoring and isolating the personLine can be difficult:Eg. Bullying vs. personality conflict between co-workersBullying vs. “tough boss”
5Examples Raising unsubstantiated performance concerns Threatening and intimidating tactics and unreasonable demandsYelling at, swearing or belittling an employeePersistent and unfounded criticismVulgar and demeaning remarks to subordinate employeesRefusing to allow an employee to take breaks, attempting to discipline him without cause and holding him to a higher standard of productivityThese are all examples from cases that judges and arbitrators have found to have constituted bullying in the workplace
6Bullying vs. Legitimate Management Authority The legitimate exercise of management authority is not bullyingAn exercise of management authority may cross the line if it is unnecessarily harsh, cruel or vindictiveNext – survey question
7Zlatogourskaia v. Veisman (2005 Ontario Superior Court) Employer severely reprimanded the plaintiff for leaving patient records unattendedIn the course of reprimanding her, Mr. Veisman yelled and cursedThe court found the plaintiff had failed to establish Mr. Veisman’s conduct was unnecessarily harsh, cruel or vindictiveEmployer was dental surgeonPlaintiff had left patient records unattended in nearby photocopying store, in violation of doctor patient confidentiality rules
8Bullying vs. Personality Conflicts King v. Skyview Financial Advisors (2006 Ontario Superior Court)Court found that the employee’s tense relationship with a co-worker who treated her with hostility did not impede her ability to do her job or subject her to any form of harassmentThe matter amounted to a simple personality conflict
9Bullying BossesAlthough courts have recognized that a certain amount of behaviour on the part of managers and supervisors falls into the category of legitimate management authority, there is a point at which managers and supervisors have crossed the line.
10Shah v. Xerox Canada Ltd. (2000 Ontario Case) Mr. Shah worked for Xerox for 12 yearsTook a new position with the companyHad always received good performance reviews, bonuses and pay raises before6 months into his new position, manager raised largely unsubstantiated concerns with his performance
11Shah v. Xerox Canada Ltd.At his review, he was told there were performance complaints against himHe was not provided with any specific details and his manager did not verify the complaintsReceived an unexpected, unjustified and vague warning letter
12Shah v. Xerox Canada Ltd.Was asked to sign a list of tasks assigned to him for completionHe refused – many were unreasonableGot another warning letter and was placed on probation
13Shah v. Xerox Canada Ltd.The court found that instead of telling Mr. Shah what was expected of him and giving him a chance to respond, his new manager became “more authoritarian, impatient and intolerant”The manager’s treatment of Mr. Shah made his continued employment intolerable
14Bullying Co-WorkersThere is an onus on employers to prevent harassment from occurring between co-workersAn employer’s failure to prevent the harassment of an employee by co-employees can lead to a claim for constructive dismissal
15Morgan v. Chukal Enterprises (2000 BC Case) Plaintiff had been employed as a waitress at a pub for 13 yearsClaimed the new kitchen manager treated her and the other staff with hostility and rudenessHe yelled, swore and belittled them, often in front of other customers
16Morgan v. Chukal Enterprises Owners took kitchen manager’s sideAdmitted to the court that they were aware of his behaviour and tolerated itCourt ruled in favour of the plaintiff, finding that the situation was intolerable and represented a fundamental change in her working conditions
17Hertz Canada v. Canadian Office and Professional Employees’ Union (2011 Grievance Arbitration) Arbitrator found that an employee had been the target of an intentional silent treatment by the grievors and that this conduct constituted harassmentThey “stopped talking to him” in vehicles while on their way to collect cars and drive them to other locations“The silent treatment is a form of mistreatment with a long history; it is expressed by the peculiar idiom “to send someone to Coventry”.
18Consequences of Bullying Increased absenteeism, turnover and stressIncreased recruitment costsDecreased workplace productivity, morale and customer serviceIncreased risk of accidents and incidentsReduced corporate image and customer confidenceLegal liability – human rights and constructive dismissal
19Human Rights Liability Human Rights Code prohibits discrimination in employmentIf workplace bullying and harassment involves one of the protected grounds, an employer can face liability under the CodeRemedies can be substantial
20Subjected to sexual harassment McIntosh v. Metro Aluminum Products et al. (2011 BC Human Rights Tribunal)Tribunal awarded the complainant lost wages and expenses of $17, and $12,000 for injury to dignitySubjected to sexual harassmentWas briefly engaged in an affair with the owner of the companyAfter it ended he continued to send inappropriate text messages, which got progressively more offensive
21Wutke v. Mageria Holdings (2006 BC Human Rights Tribunal) Complainant worked as a cook in a pubSuffered from short-term memory problems and chronic back painKitchen staff yelled at her frequentlyInferences that her memory problem resulted from drug useIntroduced as a “space cadet” to a new employee
22Wutke v. Mageria Holdings Tribunal found that her manager knew she had memory problems and should have been more sensitive to how things were said to herShould have explained to the other staff that they should not speak to her in such a manner
23Liability for Constructive Dismissal Constructive dismissal – when an employee quits in response to the employer’s breach of the employment contractBreach must be sufficiently serious to be characterized as repudiatory
24Liability for Constructive Dismissal A constructive dismissal claim may be made if an employee leaves because of intolerable working conditions created by bullying and harassmentEmployee can seek compensation for reasonable notice of termination
25Liability for Constructive Dismissal Examples:Shah v. Xerox – 12 months noticeMorgan v. Chukal Enterprises – 13 months noticeLikely to find constructive dismissal where the treatment is so unfair or harsh as to create intolerable working conditions under which it would be unreasonable to expect an employee to keep working
26Bullying LegislationOccupational Health and Safety Regulation includes a section on “Violence in the Workplace”Federal jurisdiction also has regulation with respect to workplace violenceCurrent B.C. Legislation only prohibits physical violent workplace harassment
27ConclusionsPrevention is the keyConduct will sometimes be questionable – not every inappropriate management decision will constitute bullyingAwareness and communication are essential
28What’s New in the Zoo? Labour & Arbitration Update Presented by Taryn Mackie
30Random Drug & Alcohol Testing Audience Poll…Random Drug & Alcohol Testing
31Random Mandatory Alcohol Testing Enter Re Irving Pulp & Paper, 2011 NBCAKraft paper mill that in 2006 unilaterally adopted a workplace policy that included mandatory and random alcohol testingTesting was limited to a breathalyzerTesting was limited to employees performing safety sensitive jobs
32Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCAThe “randomness” of the testing was accomplished by having the names of the 334 eligible employees selected by an off-site computerIn any 12-month period, the computer would select 10% of the names on the list
33Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCAAn employee who occupied a safety sensitive position was randomly testedThe employee’s test results revealed a blood alcohol level of zeroNevertheless, the Union filed a policy grievance challenging the “without cause” aspect of the random mandatory alcohol testing policy
34Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCAA union has the right to challenge a workplace policy unilaterally imposed by management on the basis that the rules fail to meet the KVP test, which requires, for example, that:The rule be consistent with the collective agreementThe rule be reasonableThe rule be clear and unequivocal
35Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCAThe Union in this case challenged the random mandatory alcohol testing on the reasonableness criterionAt arbitration, the Board balanced the privacy interests of the employee against the safety interests of the employer, and found that the policy was unjustified because the employer failed to establish a need for the policy
36Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCAAccording to the Board, the employer could not demonstrate that the mill operations posed a sufficient risk of harm that outweighed an employee’s right to privacySpecifically, the Board noted that there was no evidence of prior incidents of alcohol impaired work performance at the mill and the mill was not an “ultra-dangerous” place
37Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCAThe majority of the NBQB ruled to set aside the Board’s decisionThe NBQB found that if the “potential for catastrophe exists”, no prior incidents should be requiredThe NBQB also noted that the breathalyzer requirement was minimally intrusive and the testing was limited to safety critical positions
38Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCAThe NBCA dismissed the union’s appealPast alcohol-related problems are not required if the workplace is “highly” or “inherently dangerous”“Highly” or “inherently dangerous” workplaces include employers involved in the production and refining of oil products or chemicals and employers in the mining and forestry sectorsThe NBCA noted some resistance to classifying trucking operations as “inherently dangerous”To be continued before the SCC…
40Do you follow your nose?Re British Columbia Maritime Employers Assn CLAD30-day suspension imposed on the grievor for suspected drug use at workThe grievor was found in the dock office with the strong smell of marijuana in the airThe grievor denied using drugsThe grievor was in a safety sensitive job
41Do you follow your nose?Re British Columbia Maritime Employers Assn CLADWitnesses testified that the office was used by many people and “sometimes stinks”The office typically contained dirty coveralls and garbage
42Do you follow your nose?Re British Columbia Maritime Employers Assn CLADThe grievor described the site as “a potash, coal and canola oil site with piles of steaming crud all over”There were many animals onsite as well, such as skunks, geese, and raccoonsIt was not uncommon to smell skunk
43Do you follow your nose?Re British Columbia Maritime Employers Assn CLADThe arbitrator set aside the suspensionAlthough the foremen believed that they smelled marijuana in the office, the employer’s application of “the nose knows” test was insufficient; the foremen were not expertsThe grievor’s conduct was not particularly suspicious (e.g. no attempt to conceal anything and no signs of impairment)
44Do you follow your nose?Re British Columbia Maritime Employers Assn CLADThe arbitrator set aside the suspensionThere was no “direct, clear, or cogent link” to the grievor smoking marijuana at the dock officeCircumstantial evidence of smell alone is insufficient to establish that link
45You need something more… [Insert clip from 1:51 – 2:11]
46Do you follow your nose?Re British Columbia Maritime Employers Assn CLADThe arbitrator set aside the suspensionTo succeed, the employer must show, on a balance of probabilities, with cogent evidence that:(1) the smell was marijuana; and(2) the grievor was smoking marijuana
47Union Access to Personal Information You be the Judge…Union Access to Personal Information
48Union Access to Personal Information Re Port Transport, 2011 BCLRBIn preparation for collective bargaining, the Union asked the Employer to produce certain personal information about employees in the bargaining unit, including their:Names, addresses, telephone numbers, dates of birth, addresses, benefit coverage data (single, family, enrolled, ineligible, etc.), wage rates, premiums, job classifications, vacation entitlements, benefit usage data, etc.
49Union Access to Personal Information Re Port Transport, 2011 BCLRBThe Employer refused and said that, in the interests of protecting employee privacy, it would not disclose their personal information to the Union unless the employees had provided written consent to the Union permitting this disclosure
50Union Access to Personal Information Re Port Transport, 2011 BCLRBThe Employer added that if the Union was able to obtain their written consent, the Union should at the same time obtain the information it sought from the bargaining unit members themselvesIn the Employer’s words, the Union should just “make the effort”The matter went before the Labour Board
51Union Access to Personal Information Re Port Transport, 2011 BCLRBAccording to the Union, the Employer’s failure to provide the information was contrary to the Code by interfering with the Union’s ability to represent its membership and by failing to bargain with the Union in good faithThe Union was not asking the Employer to hunt down information from members, only provide information it already had in its possession
52Union Access to Personal Information Re Port Transport, 2011 BCLRBThe Labour Board sided with the UnionThe Board applied a 2-part test to determine whether the Employer was in breach of the Code by refusing to provide the informationDoes the refusal interfere with the union’s capacity to represent the employees in the bargaining unit?If so, is there a sound business purpose that counterbalances that adverse impact on the union’s capacity?
53Union Access to Personal Information Re Port Transport, 2011 BCLRBThe Labour Board sided with the UnionApplying the test to the facts, the Board found that:The Employer’s refusal did interfere with the Union’s ability to represent its membership in bargaining, and the Employer did not suggest that it would be unable to, or have difficulty with, supplying the information to the Union
54Union Access to Personal Information Re Port Transport, 2011 BCLRBThe Labour Board sided with the UnionApplying the test to the facts, the Board found that:The Employer had no sound business reason for refusing to provide the information requested by the Union
55Union Access to Personal Information Re Port Transport, 2011 BCLRBThe Labour Board sided with the UnionProviding personal information on the membership to a union certified to represent the membership does not raise privacy concernsUnions have the right to access the personal information of bargaining unit employees without the employees’ written consent where the purpose of the access is related to the Unions’ representation of their membership
56Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont.Employer had a third party administrator manage its sick leave claims and accommodation claimsWhen sick leave or accommodation was needed, employees were provided with a standard medical certificate form requiring various personal medical information, including diagnostic information, treatment information, and details of symptoms
57Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont.The Union maintained that the requirement to disclose medical information not mentioned in the collective agreement was unjustified, certain of the medical information required was an invasion of privacy, and requiring the employee to provide the information to a third party administrator was inappropriateThe arbitrator agreed with the Union, in part
58Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont.The arbitrator affirmed the longstanding case law that although an employee’s personal medical information is generally private, an employer is entitled to sufficient information to satisfy itself that either:The employee is legitimately absent due to illness or injury orThe employee is medically fit to return to work with or without accommodation
59Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont.Caveat: The Employer is only entitled to access the medical information that it reasonably requires in the circumstances
60Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont.There is a distinction between medical information required to assess the legitimacy of an employee’s absence and medical information required to confirm fitness to work or the implementation of accommodation
61Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont.In legitimizing an absence, the employer, absent a clear provision in the collective agreement, is generally not entitled to require an employee to disclose a diagnosis or details regarding the specific nature of an illness, its symptoms, or the treatment undertaken
62Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont.In confirming fitness to work or implementing accommodation measures, the employer may be entitled to this additional information if there is reasonable doubt concerning the employee’s fitness to perform the duties assigned and if they have a “demonstrable need” for this information
63Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont.“One size fits all” forms may cross the lineThe arbitrator noted that although most employees would likely appreciate providing their information to an administrator rather than to the employer directly, the decision of who the employee discloses their medical information to is the decision of the employee
65The Duty to Accommodate Applies to all employers in BCMust accommodate employee’s disability to the point of undue hardship.Includes the duty to make reasonable inquiries about the employee’s limitations, sometimes including medical information.
66Recent “Big Decisions” in Human Rights and Accommodation Law Cassidy (2011, B.C. Supreme Court)No Separate Procedural Duty to AccommodateBC Human Rights Tribunal (the “Tribunal”)The employer discriminated against Mr. Cassidy by failing to treat him “fairly, and with due respect for his dignity, throughout the accommodation process”.
67Cassidy, continued B.C. Supreme Court No separate procedural duty to accommodateAll Tribunal should consider is whether the employee was accommodated to the point of undue hardshipTreating the employee in an unfair manner throughout the accommodation process does not in itself amount to discrimination.
68Cassidy, continuedAlways best practice to treat employees fairly when considering accommodation.
69Recent “Big Decisions”, continued Figliola (2011, Supreme Court of Canada)No Forum Shopping in Human RightsIn the employment context, many different forums for employment-related concerns.Forums include:B.C. Employment Standards Tribunal;Workers’ Compensation Review and Appeal Divisions;B.C. Supreme Court;Internal Union Grievance Processes and Arbitrations;B.C. Human Rights Tribunal
70Figliola, continued Supreme Court of Canada Tribunal made an error in hearing a complaint about issues already determined by a body “with the authority to resolve them” (i.e. the Workers’ Compensation Board).
71Recent “Big Decisions” continued Mowat (2011, S.C.C.)Federal Human Rights Tribunal May Not Award Legal FeesLegal fees, or “costs”Supreme Court of CanadaConsidered whether the Canadian Human Rights Tribunal could award “costs”
72Mowat, continuedCanadian Human Rights Act, s If the Tribunal finds the complaint is valid, it may order the offending person:“compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice”
73Mowat, continuedCanadian Human Rights Act s. 53 does not include the discretion to award legal fees, not considered “expenses”.
74Mowat, continued What about B.C.? B.C. Human Rights Code, section 37: (2) If the member or panel determines that the complaint is justified, the member or panel…(d) may order the person that contravened this Code to…(ii) compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention.
75Mowat, continued Distinction – Improper Conduct. B.C. Tribunal has specific discretion in the Code to award legal fees resulting from the improper conduct of another party.Failing to comply with Tribunal order;Filing a baseless complaint;Lying in the proceedings;Etc.
76Kerr Final case – SCENARIO: What do you do? a) WAIT b) SEEK c) TERMINATE
77Kerr (2011, B.C. Court of Appeal) Kerr, continuedAnswer = (b)Kerr (2011, B.C. Court of Appeal)Employer chose option (a), argued employee obliged to provide objective evidence she was able to work before it had to consider returning her to work.Not the case, request for accommodation triggers duty to inquire.
78Perceived Disabilities Disabilities in the Human Rights context include perceived disabilities.If an employee can demonstrate the discriminatory conduct by their employer resulted from the employer’s perception that they were disabled, even if they are not, then discrimination can be found.
79Cartwright, B.C. Human Rights Tribunal, 2011. CasesCartwright, B.C. Human Rights Tribunal, 2011.Employers must rely on the medical evidence provided to them.If employee and doctors say fit to work, employer has fulfilled its duty to inquire.
80Johnson, B.C. Human Rights Tribunal, 2010. Cases, continuedJohnson, B.C. Human Rights Tribunal, 2010.Unique decision, not clear any “adverse treatment” other than hurt feelings.Indicates employers should not even mention assumptions about an employee’s abilities.When in doubt, ASK.
81Morgan-Hung, B.C. Human Rights Tribunal Decision, 2009. Cases, continuedMorgan-Hung, B.C. Human Rights Tribunal Decision, 2009.Even if an employee has a disability, employers should not make assumptions about the limitations of that disability.
82Morgan-Hung, continued Possible employee’s cognitive capacity was declining and a reduced week would have been a beneficial accommodation.Employer discriminated by not seeking medical information, assuming cognitive impairment and imposing “accommodation”.
83Lessons for EmployersDo not assume an employee has restrictions unless you have received specific information from them that they do, preferably backed up by medical evidence.Even where medical condition or disability exists, do not make assumptions about the type of impairment this causes.Best interests of employee no excuse
84Lessons for Employers, continued When you perceive decline in performance, INQUIRE.Seek medical evidence
85USE IT, DON’T ABUSE ITUse of Company Equipment in the Age of Technology – Presented by Ryan Berger
86Use it, don’t abuse it Overview: Management rights and obligations VehiclesComputers at workTelephonesLaptops and mobile devices
87Trying not to abuse it…Audience response systemQuestions 1 – 6
88Right of employer to manage the workplace Use of EquipmentRight of employer to manage the workplaceWhat / where is the workplace?Includes use of company equipmentAs technology develops and we as a society become increasingly mobile the workplace is defined less in spatial terms and more in terms of objectives and results. In the modern workplace it can be said that you are at work where and when your work activities can be monitored and measuredEmployers own their workplace and workplace assets. Employers pay their employees to devote certain time and energy to their jobs. Protecting their interests in these provides a legitimate reason for comprehensive management of the workplace. Management rights include the right to hire, promote, lay-off and discipline and discharge employees for cause subject to contract and employment standards and human rights legislation. The right to manage includes the right to make policies regarding use of workplace equipment, appropriate behaviour and employer expectations. Consequently, the right to manage includes the right to discipline employees for breach of these policies
89We have the technology – can we use it? Use of EquipmentWe have the technology – can we use it?Manage and monitor productivitySafety of employeesSafety and security of systems and equipmentTheft preventionEquipment maintenanceAvoiding liabilityNew technology and equipment allows us to obtain more information about our employees than ever before and do it in increasingly efficient ways. If we have the technology, can employers use it? The answer is that not all supervision and management tools are appropriate. Just because it is easier and cheaper, does not mean that it is right: You can use it; don’t abuse it.
90Don’t abuse it… privacy obligations Reasonable collection, use and disclosureWhat is the need?Is the use effective in meeting the need?Is the loss of privacy proportional to the benefit?Is there a less intrusive way?Are you notifying employees? (use policy)Investigations may be treated differentlyReview privacy principlesInvestigations – where you have a reasonable basis to suspect breach of employment agreement - policy or contract – could include harassment etc – will have greater ability to collect**** Survey Question #7 BEFORE THE NEXT SLIDE7. You be the Judge:Is it permissible to install GPS on company vehicles? The reasons include managing productivity, ensuring safety and securing assets. The GPS permits the employer to locate the vehicle at any time, including on weekends.(a) yes(b) no
91What information do you collect? How are you using the information? Equipment - VehiclesGPS and TelematicsWhat information do you collect?How are you using the information?Is your use policy appropriate?What is the answer to the GPS question?Answer will probably depend on a few things.OPC condoned GPS:installing the GPS were “to manage workforce productivity, ensure safety … and to protect and manage assets”. The Privacy Commissioner accepted that the GPS units were necessary and effective for these needs, the privacy intrusion was considered minimal for these purposes. However, the Privacy Commissioner did stress that while GPS can be used for measuring employee performance this use is only for limited and defined circumstances explicitly set out by the employer. The commissioner suggested that routinely evaluating performance based on GPS data would be considered too invasive.BC OPC – has about 3 cases before her on GPS or similar technologyI suspect will view it more narrowlyIf going to use information for performance or monitoring adherence to policy – will look carefully at your USE POLICY = what are you telling employees they can do with the vehicleWhat are they being told you are using the information for?
92Equipment - Computers at work Computers record almost everythingOver-collection is hard to avoidRegular monitoring without cause is probably too invasiveKeystroke loggingand internet monitoringAre there alternatives?blocking accessseparate station / connection for break timesIs your use policy appropriate?Review slide**** SCENARIO – Question 8 - BEFORE THE NEXT SLIDE8. You be the Judge:The telephone conversations of your employees are recorded for “quality assurance.” Can you use the recorded call:(a) to review content and manage performance(b) to obtain statistical data about volume, duration and type of call(c) a and b(d) none of the above
93Can you record telephone calls? What can you do with it? Consider: TelephonesCan you record telephone calls?What can you do with it?Consider:Job dutiesIs statistical information sufficientCan you exclude personal calls?Is your use policy appropriate?Depending on job – use of phones – more reasonable to monitor – operators + people whose job is focused on telephone performance - yes [[ engineers – no ]]Do you need to monitor the call itself for productivity? Or just parameters – length of time – volume throughout the day etc.Are you excluding personal calls – another line?What are you telling employees about monitoring and what uses they can make of the phone?
94Laptops and Mobile Devices Location servicesProbable over-collection of informationRegular monitoring without cause is probably too invasiveIs your use policy appropriate?
95ConclusionAre your use policies appropriate?Are you notifying employees?Are you balancing business needs and privacy?Just because you can do it, does not mean you should…
96Is posting on the Intranet enough? Policies and Training Presented by: Herb Isherwood
97Review of Practice towards Policies Trending – our perspective ContextReview of Practice towards PoliciesTrending – our perspectiveuse of policies is upno. of issues is upcomplexity is upProactive vs. ReactiveNotes:context for this topicpart of our job with this seminar is to let you know what trends we are seeingmore handbook reviewsmore training seminars
98Context Expectations & Need “Polyone” Need to tell employees not to steal?Phone v. + internet policiesMay be a generationalaspect to thisNotes:Polyone summaryseems employees need more prescriptive directionworkplace more integrated & complexphone vs intranetgenerational aspectneed to be told what can do and not doemployee at his ___ - photo of ____ victim
99ContextDuty of loyalty may not be obviousNeed to be more prescriptive – employees expect it“You ought to know better” isn’t enough
100But we are also problematic seeing implementation practices ContextBut we are also problematic seeing implementation practicesdoor stops + paper weightsadhoc and incrementalThere is an opportunityto add valueNotes:policies are reactionarynot thorough and completereactionary
101disciplined + pro-active approach part of risk management Contextdisciplined + pro-active approachpart of risk managementassist with prevention (the primary goal) and enforcementnot advocating that you go rule crazydo advocate a planned and purposeful approachNotes:our suggestionrisk managementwell implemented policy will help with prevention – primary goal
102uniform and consistent decisions enhance efficiency Reason for a Policyalign valuesenhance reputationuniform and consistent decisionsenhance efficiencyreduce risk of liability or lossEffective and appropriate policies are indicative of a well run organizationfortifies your credibility
103Why? There are a number of reasons Some policies may be needed for more than one reasonThere is or could be confusion or misunderstandingdress codeand internet useoff-duty behaviourconfidentialityright to lay offlets look at why you need a policy more artificiallymore objectively / less subjectivelyyou will see that some policies are justified for more than one reason
104Specific guidance is needed Why?Specific guidance is neededexpense reimbursement (use of company credit card)employee discountscontrol proceduresgeneral employee conductabsenteeism
105Why? Protect against or reduce or reduce liability respectful workplace/non-discriminationconflict of interestovertimecommission and bonuspoliciesemployee healthtelecommutesafetyNote:conflictbusinesspersonalovertimepart of diligenceincentive payon terminationnotice periodhealth policiesencouraging + supporting positive lifestyle choices
106Comply with legal requirements Why?Comply with legal requirementsnon-public organizationsPrivacyWorkSafepublic companiescode of conduct and disclosure + trading policythere are very few policies that are legally requiredNote: There are very few legally required policies.even harassment policies not necessary
107Why? Establish consistent work standards & rules progressive disciplineleaves of absence / notification of absencework process or procedurebreak rulesEstablish consistent and fair treatmentbenefits rules & proceduressick leaveposting rulesassessment processefficiencyeffective operationsmeat + potatoes of operation
108Ultimate goal – add value Why?Ultimate goal – add valuee.g. – absenteeism or overtimeclear and objective valuevalue may be subjectivee.g. policies that align culturecode of conductcharitable giving
109Why? If you can’t identify the value – do you need it? judgment comes in herecan’t cover everythingthere are no end of ways that employees can go wrongconsider:risk to organizationlikelihood of occurrence + frequencyhow many employees impactedimpact on reputation / stakeholdersneed to cover what is important to the organizationNote: e.g. backing into car spacesno golf clubs in the carPolyoneThyssen
110Why? If can show value – you enhance value of HR to the organization if you are told “We need a policy on that”, I suggest you test the idea against this criteriaconsider the reasonsdetermine if the policy will add real value
111do some thinking before you write what needs to be dealt with Preparationdo some thinking before you writewhat needs to be dealt withnot just because it has happenedbe proactive – what could go wrong– how can we improveNotes:e.g. encouraging employees to quit smokingcreating a safety first cultureneeds to be reasonableexpress requirement in union environmentimplied requirement in other environment
112canvass the organization what are the unwritten rules Preparationcanvass the organizationor at least a samplingwhat are the unwritten rulesare there exceptionsdo they need to be codifiedwhat are the common frustrationsNotes – ExceptionsOvertime – emergenciesDrug and alcoholsocial events
113get ideas from the internet what are the issues?but be critical and discriminatingwon’t need some policiesvisitorsworking abroadconcealed weaponssome will be specific to Canada and BCconflict of interestsocializingpassive investment-US policies“”at will”BC PoliciesOvertimedrug + alcoholprivacy
114need to ensure you are not climbing out on the branch Getting Supportneed to ensure you are not climbing out on the branchif support not there, will be underminedmay need to decide what issues to fight forNotes:[no pens at the copier policy – everyone ignores]scope of harassment policiesstatutory harassment vs personal harassmentneed for drug and alcohol policysets expectationsfacilitates remedies
115should be able to write your own involves a “what if” exercise Writingshould be able to write your owninvolves a “what if” exerciseidentify what might happenaddress real possibilitiestry to be clearbe concise as you canNotes:lots of resources to determine issues – get ideas for writingbut always need to be customized
116Legal Review may need a legal review policy needs to be policies with legal implicationprivacyrespectful workplacedoes not mean legalesepolicy needs to beunderstood to be effectivebut there will be wording that needs to be legally designedNotes:will help with clarityin union environment, will review against arbitrators awards
117to enforce, you need knowledge + understanding Implementationto enforce, you need knowledge + understandingsimply posting + asking employees to review is dangerousIdeally all policies will be explained to each employeetrainingmandatory attendance
118Implementationif want to discipline need to show employee knew about policy or that it was wrongposting on intranet – goodintranet helpsaccessavailabilitybut vulnerabledoesn’t establish knowledge, only availabilityrequire employees to know / sign off – betterhelps with enforcementbut not as effective at prevention
119Training programs are the best ImplementationTraining programs are the bestrequire and record attendancegood for important policiesnot always practicalre-affirm annuallygood for enforcementbut may not helppreventionadd a test?form to fill outNotes:need to decide what the issue is onlevel or extent may varytraining can be re-enforceable with annual affirmationadded to assessmentrequired to affirm on intranet
120part of the employment contract Implementationnew employeessame concernsobligate them to know and comply – goodshow them where it is on the system – goodwalk them through the policies – bestpart of the employment contractobligate employees to complycan be part of employment contractbut need to reserve right to change at any timeNotes:focus on key policies
121Interpretation / Enforcement be consistentcan be exceptionswill be discretionbut take rational approachcan be a challengewhere multiplemanagers enforcebut could be fatalwon’t have thought of everythingdon’t’ need to be dogmaticrecord reason for exceptionbe able to defend
122Interpretation / Enforcement monitor the policy – measure resultslots of exceptions?groups not adhering?could be fatalreview periodicallypolicies with legal implicationprivacy/respectful workplacedrug and alcoholgo to seminars/read newsletters!Notes:can find a way to measure results ofabsenteeismovertimebefore and aftershow value
123L&E Issues in 140 Characters or Less Presented By: Andrew Schafer
124Issues After Acquired Cause Resignation Dealing with EI Claims Dress CodeTermination ClausesDeducting Benefits and Pension from Reasonable NoticeRestrictive CovenantsLimitation Period Update
126ResignationEmployees who resign are not entitled to reasonable noticeSimple then, right?
127ResignationWRONGIn order to be effective, resignation must be voluntarySubjective and objective component
128ResignationBe careful of heat of the moment resignations
129ResignationTerminating someone during resignation period can be done but employer will have to pay damagesCommon law: Remainder of the notice periodESA: lesser of the employee’s resignation period and the employee’s entitlement to severance under the Employment Standards Act
130Resignation Best Practices Confirm resignation in writing Allow time to pass in “heat of the moment” casesHave provisions in employment contracts limiting severance owed if employment terminated during resignation periodInvestigate absences before assuming employee has resigned
131Restrictive Covenants Prevent former employees from working for competitors, setting up their own competing business, or attempting to solicit business from company clients
132Restrictive Covenants Not enforceable unless reasonableHigh standardTypesNon-CompeteNon-SolicitNo Dealing
133Restrictive Covenants In order to enforce, covenants must:Protect a legitimate business interestContain a reasonable geographic scopeContain a reasonable temporal scopeIf not enforceable, courts will not fix
134Restrictive Covenants If enforceable, can form the basis of an action for damages and an injunctionConsider what is reasonable before draftingAvoid using same covenant for all employees
135After Acquired CauseGeneral rule: employees entitled to notice of termination unless there is causeProblem: what if you dismiss an employee without cause but discover conduct that would be just cause after they have left?.
136After Acquired CauseCan be a full defence to a wrongful dismissal claim
137After Acquired CauseEmployer cannot have condoned behaviorDoes not include post-termination conduct but can include pre-employment conductDoes not apply to ESA severance, only common lawDo not make in bad faith
139Dress CodesUnionized Businesses: must be reasonable, must be known to the employees, and must be enforced consistentlyNon-Unionized: businesses have much more leeway but reasonableness still a factor upon dismissal
140Dress CodesConsidering human rights considerationsRecent example: rule prohibiting hiking boots in gym
141Termination ClausesLimit reasonable notice owed upon dismissal
142Termination ClausesCannot contract out of ESA minimumsMust be clearShould be in employment agreementConsideration needed to impose new termination provision
143Dealing with EI ClaimsEI available to employees who lose their job through no fault of their ownDon’t qualify if terminated for misconduct or if resign
144Dealing with EI ClaimsService Canada will investigate each case and decide whether employee committed misconductOften decide that there is no misconductEmployer gets letter asking for responseHow should you respond?
145Dealing with EI claimsLittle benefit to appealing an EI decisionRespond by expressing disagreement with original decision but will not be appealing at this time
146Limitation PeriodsChanging in BCUsed to be six years, changing to two yearsChanges coming into force next yearWill impact record keeping practices
147Deducting Benefit and Pension Payments from Wrongful Dismissal Awards Problem:Courts have allowed employers to deduct disability payments made to employees during reasonable notice period from damagesCourts have done the exact opposite with pensionsSCC will address this in the near future