Presented by: Rochelle Pauls No Nonsense Manager or Bully? Respectful Workplace Issues Presented by: Rochelle Pauls

Context: 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

Reasons to Deal with Workplace Bullying Harassment is disrespectful, degrading and demoralizing Employees perform better in a harassment-free work environment Legal considerations: Workers’ Compensation Act Human Rights Code Constructive dismissal claims

What 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 person Line can be difficult: Eg. Bullying vs. personality conflict between co-workers Bullying vs. “tough boss”

Examples Raising unsubstantiated performance concerns Threatening and intimidating tactics and unreasonable demands Yelling at, swearing or belittling an employee Persistent and unfounded criticism Vulgar and demeaning remarks to subordinate employees Refusing to allow an employee to take breaks, attempting to discipline him without cause and holding him to a higher standard of productivity These are all examples from cases that judges and arbitrators have found to have constituted bullying in the workplace

Bullying vs. Legitimate Management Authority The legitimate exercise of management authority is not bullying An exercise of management authority may cross the line if it is unnecessarily harsh, cruel or vindictive Next – survey question

Zlatogourskaia v. Veisman (2005 Ontario Superior Court) Employer severely reprimanded the plaintiff for leaving patient records unattended In the course of reprimanding her, Mr. Veisman yelled and cursed The court found the plaintiff had failed to establish Mr. Veisman’s conduct was unnecessarily harsh, cruel or vindictive Employer was dental surgeon Plaintiff had left patient records unattended in nearby photocopying store, in violation of doctor patient confidentiality rules

Bullying 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 harassment The matter amounted to a simple personality conflict

Bullying Bosses Although 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.

Shah v. Xerox Canada Ltd. (2000 Ontario Case) Mr. Shah worked for Xerox for 12 years Took a new position with the company Had always received good performance reviews, bonuses and pay raises before 6 months into his new position, manager raised largely unsubstantiated concerns with his performance

Shah v. Xerox Canada Ltd. At his review, he was told there were performance complaints against him He was not provided with any specific details and his manager did not verify the complaints Received an unexpected, unjustified and vague warning letter

Shah v. Xerox Canada Ltd. Was asked to sign a list of tasks assigned to him for completion He refused – many were unreasonable Got another warning letter and was placed on probation

Shah 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

Bullying Co-Workers There is an onus on employers to prevent harassment from occurring between co-workers An employer’s failure to prevent the harassment of an employee by co-employees can lead to a claim for constructive dismissal

Morgan v. Chukal Enterprises (2000 BC Case) Plaintiff had been employed as a waitress at a pub for 13 years Claimed the new kitchen manager treated her and the other staff with hostility and rudeness He yelled, swore and belittled them, often in front of other customers

Morgan v. Chukal Enterprises Owners took kitchen manager’s side Admitted to the court that they were aware of his behaviour and tolerated it Court ruled in favour of the plaintiff, finding that the situation was intolerable and represented a fundamental change in her working conditions

Hertz 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 harassment They “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”.

Consequences of Bullying Increased absenteeism, turnover and stress Increased recruitment costs Decreased workplace productivity, morale and customer service Increased risk of accidents and incidents Reduced corporate image and customer confidence Legal liability – human rights and constructive dismissal

Human Rights Liability Human Rights Code prohibits discrimination in employment If workplace bullying and harassment involves one of the protected grounds, an employer can face liability under the Code Remedies can be substantial

Subjected to sexual harassment McIntosh v. Metro Aluminum Products et al. (2011 BC Human Rights Tribunal) Tribunal awarded the complainant lost wages and expenses of $17,394.65 and $12,000 for injury to dignity Subjected to sexual harassment Was briefly engaged in an affair with the owner of the company After it ended he continued to send inappropriate text messages, which got progressively more offensive

Wutke v. Mageria Holdings (2006 BC Human Rights Tribunal) Complainant worked as a cook in a pub Suffered from short-term memory problems and chronic back pain Kitchen staff yelled at her frequently Inferences that her memory problem resulted from drug use Introduced as a “space cadet” to a new employee

Wutke 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 her Should have explained to the other staff that they should not speak to her in such a manner

Liability for Constructive Dismissal Constructive dismissal – when an employee quits in response to the employer’s breach of the employment contract Breach must be sufficiently serious to be characterized as repudiatory

Liability for Constructive Dismissal A constructive dismissal claim may be made if an employee leaves because of intolerable working conditions created by bullying and harassment Employee can seek compensation for reasonable notice of termination

Liability for Constructive Dismissal Examples: Shah v. Xerox – 12 months notice Morgan v. Chukal Enterprises – 13 months notice Likely 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

Bullying Legislation Occupational Health and Safety Regulation includes a section on “Violence in the Workplace” Federal jurisdiction also has regulation with respect to workplace violence Current B.C. Legislation only prohibits physical violent workplace harassment

Conclusions Prevention is the key Conduct will sometimes be questionable – not every inappropriate management decision will constitute bullying Awareness and communication are essential

What’s New in the Zoo? Labour & Arbitration Update Presented by Taryn Mackie

What’s New at the Zoo? Drugs Privacy

Random Drug & Alcohol Testing Audience Poll… Random Drug & Alcohol Testing

Random Mandatory Alcohol Testing Enter Re Irving Pulp & Paper, 2011 NBCA Kraft paper mill that in 2006 unilaterally adopted a workplace policy that included mandatory and random alcohol testing Testing was limited to a breathalyzer Testing was limited to employees performing safety sensitive jobs

Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCA The “randomness” of the testing was accomplished by having the names of the 334 eligible employees selected by an off-site computer In any 12-month period, the computer would select 10% of the names on the list

Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCA An employee who occupied a safety sensitive position was randomly tested The employee’s test results revealed a blood alcohol level of zero Nevertheless, the Union filed a policy grievance challenging the “without cause” aspect of the random mandatory alcohol testing policy

Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCA A 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 agreement The rule be reasonable The rule be clear and unequivocal

Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCA The Union in this case challenged the random mandatory alcohol testing on the reasonableness criterion At 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

Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCA According 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 privacy Specifically, 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

Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCA The majority of the NBQB ruled to set aside the Board’s decision The NBQB found that if the “potential for catastrophe exists”, no prior incidents should be required The NBQB also noted that the breathalyzer requirement was minimally intrusive and the testing was limited to safety critical positions

Random Mandatory Alcohol Testing Re Irving Pulp & Paper, 2011 NBCA The NBCA dismissed the union’s appeal Past 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 sectors The NBCA noted some resistance to classifying trucking operations as “inherently dangerous” To be continued before the SCC…

You be the Judge… Follow your nose?

Do you follow your nose? Re British Columbia Maritime Employers Assn. 2012 CLAD 30-day suspension imposed on the grievor for suspected drug use at work The grievor was found in the dock office with the strong smell of marijuana in the air The grievor denied using drugs The grievor was in a safety sensitive job

Do you follow your nose? Re British Columbia Maritime Employers Assn. 2012 CLAD Witnesses testified that the office was used by many people and “sometimes stinks” The office typically contained dirty coveralls and garbage

Do you follow your nose? Re British Columbia Maritime Employers Assn. 2012 CLAD The 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 raccoons It was not uncommon to smell skunk

Do you follow your nose? Re British Columbia Maritime Employers Assn. 2012 CLAD The arbitrator set aside the suspension Although 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 experts The grievor’s conduct was not particularly suspicious (e.g. no attempt to conceal anything and no signs of impairment)

Do you follow your nose? Re British Columbia Maritime Employers Assn. 2012 CLAD The arbitrator set aside the suspension There was no “direct, clear, or cogent link” to the grievor smoking marijuana at the dock office Circumstantial evidence of smell alone is insufficient to establish that link

You need something more… [Insert clip from 1:51 – 2:11] http://www.youtube.com/watch?v=pTMRYbhPbZE

Do you follow your nose? Re British Columbia Maritime Employers Assn. 2012 CLAD The arbitrator set aside the suspension To 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

Union Access to Personal Information You be the Judge… Union Access to Personal Information

Union Access to Personal Information Re Port Transport, 2011 BCLRB In 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, e-mail addresses, benefit coverage data (single, family, enrolled, ineligible, etc.), wage rates, premiums, job classifications, vacation entitlements, benefit usage data, etc.

Union Access to Personal Information Re Port Transport, 2011 BCLRB The 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

Union Access to Personal Information Re Port Transport, 2011 BCLRB The 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 themselves In the Employer’s words, the Union should just “make the effort” The matter went before the Labour Board

Union Access to Personal Information Re Port Transport, 2011 BCLRB According 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 faith The Union was not asking the Employer to hunt down information from members, only provide information it already had in its possession

Union Access to Personal Information Re Port Transport, 2011 BCLRB The Labour Board sided with the Union The Board applied a 2-part test to determine whether the Employer was in breach of the Code by refusing to provide the information Does 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?

Union Access to Personal Information Re Port Transport, 2011 BCLRB The Labour Board sided with the Union Applying 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

Union Access to Personal Information Re Port Transport, 2011 BCLRB The Labour Board sided with the Union Applying 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

Union Access to Personal Information Re Port Transport, 2011 BCLRB The Labour Board sided with the Union Providing personal information on the membership to a union certified to represent the membership does not raise privacy concerns Unions 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

Medical 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 claims When 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

Medical 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 inappropriate The arbitrator agreed with the Union, in part

Medical 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 or The employee is medically fit to return to work with or without accommodation

Medical 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

Medical 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

Medical 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

Medical 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

Medical Certificate Forms: One Size Fits All? Re OLG Point Edward Casino, 2011 Ont. “One size fits all” forms may cross the line The 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

ACCOMMODATION UPDATE & PERCEIVED DISABILITIES Presented by: Moira Aikenhead

The Duty to Accommodate Applies to all employers in BC Must 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.

Recent “Big Decisions” in Human Rights and Accommodation Law Cassidy (2011, B.C. Supreme Court) No Separate Procedural Duty to Accommodate BC 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”.

Cassidy, continued B.C. Supreme Court No separate procedural duty to accommodate All Tribunal should consider is whether the employee was accommodated to the point of undue hardship Treating the employee in an unfair manner throughout the accommodation process does not in itself amount to discrimination.

Cassidy, continued Always best practice to treat employees fairly when considering accommodation.

Recent “Big Decisions”, continued Figliola (2011, Supreme Court of Canada) No Forum Shopping in Human Rights In 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

Figliola, 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).

Recent “Big Decisions” continued Mowat (2011, S.C.C.) Federal Human Rights Tribunal May Not Award Legal Fees Legal fees, or “costs” Supreme Court of Canada Considered whether the Canadian Human Rights Tribunal could award “costs”

Mowat, continued Canadian Human Rights Act, s. 53. 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”

Mowat, continued Canadian Human Rights Act s. 53 does not include the discretion to award legal fees, not considered “expenses”.

Mowat, 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.

Mowat, 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.

Kerr Final case – SCENARIO: What do you do? a) WAIT b) SEEK c) TERMINATE

Kerr (2011, B.C. Court of Appeal) Kerr, continued Answer = (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.

Perceived 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.

Cartwright, B.C. Human Rights Tribunal, 2011. Cases Cartwright, 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.

Johnson, B.C. Human Rights Tribunal, 2010. Cases, continued Johnson, 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.

Morgan-Hung, B.C. Human Rights Tribunal Decision, 2009. Cases, continued Morgan-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.

Morgan-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”.

Lessons for Employers Do 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

Lessons for Employers, continued When you perceive decline in performance, INQUIRE. Seek medical evidence

USE IT, DON’T ABUSE IT Use of Company Equipment in the Age of Technology – Presented by Ryan Berger

Use it, don’t abuse it Overview: Management rights and obligations Vehicles Computers at work Telephones Laptops and mobile devices

Trying not to abuse it… Audience response system Questions 1 – 6

Right of employer to manage the workplace Use of Equipment Right of employer to manage the workplace What / where is the workplace? Includes use of company equipment As 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 measured Employers 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

We have the technology – can we use it? Use of Equipment We have the technology – can we use it? Manage and monitor productivity Safety of employees Safety and security of systems and equipment Theft prevention Equipment maintenance Avoiding liability New 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.

Don’t abuse it… privacy obligations Reasonable collection, use and disclosure What 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 differently Review privacy principles Investigations – 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 SLIDE 7. 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

What information do you collect? How are you using the information? Equipment - Vehicles GPS and Telematics What 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 technology I suspect will view it more narrowly If 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 vehicle What are they being told you are using the information for?

Equipment - Computers at work Computers record almost everything Over-collection is hard to avoid Regular monitoring without cause is probably too invasive Keystroke logging Email and internet monitoring Are there alternatives? blocking access separate station / connection for break times Is your use policy appropriate? Review slide **** SCENARIO – Question 8 - BEFORE THE NEXT SLIDE 8. 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

Can you record telephone calls? What can you do with it? Consider: Telephones Can you record telephone calls? What can you do with it? Consider: Job duties Is statistical information sufficient Can 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?

Laptops and Mobile Devices Location services Probable over-collection of information Regular monitoring without cause is probably too invasive Is your use policy appropriate?

Conclusion Are 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…

Is posting on the Intranet enough? Policies and Training Presented by: Herb Isherwood

Review of Practice towards Policies Trending – our perspective Context Review of Practice towards Policies Trending – our perspective use of policies is up no. of issues is up complexity is up Proactive vs. Reactive Notes: context for this topic part of our job with this seminar is to let you know what trends we are seeing more handbook reviews more training seminars

Context Expectations & Need “Polyone” Need to tell employees not to steal? Phone v. email + internet policies May be a generational aspect to this Notes: Polyone summary seems employees need more prescriptive direction workplace more integrated & complex phone vs intranet generational aspect need to be told what can do and not do employee at his ___ - photo of ____ victim

Context Duty of loyalty may not be obvious Need to be more prescriptive – employees expect it “You ought to know better” isn’t enough

But we are also problematic seeing implementation practices Context But we are also problematic seeing implementation practices door stops + paper weights adhoc and incremental There is an opportunity to add value Notes: policies are reactionary not thorough and complete reactionary

disciplined + pro-active approach part of risk management Context disciplined + pro-active approach part of risk management assist with prevention (the primary goal) and enforcement not advocating that you go rule crazy do advocate a planned and purposeful approach Notes: our suggestion risk management well implemented policy will help with prevention – primary goal

uniform and consistent decisions enhance efficiency Reason for a Policy align values enhance reputation uniform and consistent decisions enhance efficiency reduce risk of liability or loss Effective and appropriate policies are indicative of a well run organization fortifies your credibility

Why? There are a number of reasons Some policies may be needed for more than one reason There is or could be confusion or misunderstanding dress code email and internet use off-duty behaviour confidentiality right to lay off lets look at why you need a policy more artificially more objectively / less subjectively you will see that some policies are justified for more than one reason

Specific guidance is needed Why? Specific guidance is needed expense reimbursement (use of company credit card) employee discounts control procedures general employee conduct absenteeism

Why? Protect against or reduce or reduce liability respectful workplace/non-discrimination conflict of interest overtime commission and bonus policies employee health telecommute safety Note: conflict business personal overtime part of diligence incentive pay on termination notice period health policies encouraging + supporting positive lifestyle choices

Comply with legal requirements Why? Comply with legal requirements non-public organizations Privacy WorkSafe public companies code of conduct and disclosure + trading policy there are very few policies that are legally required Note: There are very few legally required policies. even harassment policies not necessary

Why? Establish consistent work standards & rules progressive discipline leaves of absence / notification of absence work process or procedure break rules Establish consistent and fair treatment benefits rules & procedures sick leave posting rules assessment process efficiency effective operations meat + potatoes of operation

Ultimate goal – add value Why? Ultimate goal – add value e.g. – absenteeism or overtime clear and objective value value may be subjective e.g. policies that align culture code of conduct charitable giving

Why? If you can’t identify the value – do you need it? judgment comes in here can’t cover everything there are no end of ways that employees can go wrong consider: risk to organization likelihood of occurrence + frequency how many employees impacted impact on reputation / stakeholders need to cover what is important to the organization Note: e.g. backing into car spaces no golf clubs in the car Polyone Thyssen

Why? 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 criteria consider the reasons determine if the policy will add real value

do some thinking before you write what needs to be dealt with Preparation do some thinking before you write what needs to be dealt with not just because it has happened be proactive – what could go wrong – how can we improve Notes: e.g. encouraging employees to quit smoking creating a safety first culture needs to be reasonable express requirement in union environment implied requirement in other environment

canvass the organization what are the unwritten rules Preparation canvass the organization or at least a sampling what are the unwritten rules are there exceptions do they need to be codified what are the common frustrations Notes – Exceptions Overtime – emergencies Drug and alcohol social events

get ideas from the internet what are the issues? but be critical and discriminating won’t need some policies visitors working abroad concealed weapons some will be specific to Canada and BC conflict of interest socializing passive investment -US policies “”at will” BC Policies Overtime drug + alcohol privacy

need to ensure you are not climbing out on the branch Getting Support need to ensure you are not climbing out on the branch if support not there, will be undermined may need to decide what issues to fight for Notes: [no pens at the copier policy – everyone ignores] scope of harassment policies statutory harassment vs personal harassment need for drug and alcohol policy sets expectations facilitates remedies

should be able to write your own involves a “what if” exercise Writing should be able to write your own involves a “what if” exercise identify what might happen address real possibilities try to be clear be concise as you can Notes: lots of resources to determine issues – get ideas for writing but always need to be customized

Legal Review may need a legal review policy needs to be policies with legal implication privacy respectful workplace does not mean legalese policy needs to be understood to be effective but there will be wording that needs to be legally designed Notes: will help with clarity in union environment, will review against arbitrators awards

to enforce, you need knowledge + understanding Implementation to enforce, you need knowledge + understanding simply posting + asking employees to review is dangerous Ideally all policies will be explained to each employee training mandatory attendance

Implementation if want to discipline need to show employee knew about policy or that it was wrong posting on intranet – good intranet helps access availability but vulnerable doesn’t establish knowledge, only availability require employees to know / sign off – better helps with enforcement but not as effective at prevention

Training programs are the best Implementation Training programs are the best require and record attendance good for important policies not always practical re-affirm annually good for enforcement but may not help prevention add a test? form to fill out Notes: need to decide what the issue is on level or extent may vary training can be re-enforceable with annual affirmation added to assessment required to affirm on intranet

part of the employment contract Implementation new employees same concerns obligate them to know and comply – good show them where it is on the system – good walk them through the policies – best part of the employment contract obligate employees to comply can be part of employment contract but need to reserve right to change at any time Notes: focus on key policies

Interpretation / Enforcement be consistent can be exceptions will be discretion but take rational approach can be a challenge where multiple managers enforce but could be fatal won’t have thought of everything don’t’ need to be dogmatic record reason for exception be able to defend

Interpretation / Enforcement monitor the policy – measure results lots of exceptions? groups not adhering? could be fatal review periodically policies with legal implication privacy/respectful workplace drug and alcohol go to seminars/read newsletters! Notes: can find a way to measure results of absenteeism overtime before and after show value

L&E Issues in 140 Characters or Less Presented By: Andrew Schafer

Issues After Acquired Cause Resignation Dealing with EI Claims Dress Code Termination Clauses Deducting Benefits and Pension from Reasonable Notice Restrictive Covenants Limitation Period Update

This Presentation Resignation Restrictive Covenants After Acquired Cause Dress Codes

Resignation Employees who resign are not entitled to reasonable notice Simple then, right?

Resignation WRONG In order to be effective, resignation must be voluntary Subjective and objective component

Resignation Be careful of heat of the moment resignations

Resignation Terminating someone during resignation period can be done but employer will have to pay damages Common law: Remainder of the notice period ESA: lesser of the employee’s resignation period and the employee’s entitlement to severance under the Employment Standards Act

Resignation Best Practices Confirm resignation in writing Allow time to pass in “heat of the moment” cases Have provisions in employment contracts limiting severance owed if employment terminated during resignation period Investigate absences before assuming employee has resigned

Restrictive Covenants Prevent former employees from working for competitors, setting up their own competing business, or attempting to solicit business from company clients

Restrictive Covenants Not enforceable unless reasonable High standard Types Non-Compete Non-Solicit No Dealing

Restrictive Covenants In order to enforce, covenants must: Protect a legitimate business interest Contain a reasonable geographic scope Contain a reasonable temporal scope If not enforceable, courts will not fix

Restrictive Covenants If enforceable, can form the basis of an action for damages and an injunction Consider what is reasonable before drafting Avoid using same covenant for all employees

After Acquired Cause General rule: employees entitled to notice of termination unless there is cause Problem: what if you dismiss an employee without cause but discover conduct that would be just cause after they have left? .

After Acquired Cause Can be a full defence to a wrongful dismissal claim

After Acquired Cause Employer cannot have condoned behavior Does not include post-termination conduct but can include pre-employment conduct Does not apply to ESA severance, only common law Do not make in bad faith

Dress Codes

Dress Codes Unionized Businesses: must be reasonable, must be known to the employees, and must be enforced consistently Non-Unionized: businesses have much more leeway but reasonableness still a factor upon dismissal

Dress Codes Considering human rights considerations Recent example: rule prohibiting hiking boots in gym

Termination Clauses Limit reasonable notice owed upon dismissal

Termination Clauses Cannot contract out of ESA minimums Must be clear Should be in employment agreement Consideration needed to impose new termination provision

Dealing with EI Claims EI available to employees who lose their job through no fault of their own Don’t qualify if terminated for misconduct or if resign

Dealing with EI Claims Service Canada will investigate each case and decide whether employee committed misconduct Often decide that there is no misconduct Employer gets letter asking for response How should you respond?

Dealing with EI claims Little benefit to appealing an EI decision Respond by expressing disagreement with original decision but will not be appealing at this time

Limitation Periods Changing in BC Used to be six years, changing to two years Changes coming into force next year Will impact record keeping practices

Deducting 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 damages Courts have done the exact opposite with pensions SCC will address this in the near future