800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | North Vancouver Chamber of Commerce Brown Bag Lunch and Learn Tuesday, September 30, 2014 RED FLAGS AND PRACTICAL POINTERS: A list of what to do and what not to do as an employer The purpose of this presentation is to provide an overview of this area of the law. This does not by any means constitute a full analysis of the law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed. © Roper Greyell LLP 2014 James D. Kondopulos (604)

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 2 What are we going to review?  Popular misconceptions  Major risks in the hiring process  Pitfalls in employment contracts  Managing performance issues  Suspicious sick leave claims  Avoiding constructive dismissal claims  “I Quit!” Is it really the end?  Do you have just cause for discharge?  Costs of failure to accommodate  Employment standards FAQs

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 3 Popular misconceptions  Employers have to play fair  Employees can only be fired for just cause  Disabled employees cannot be fired  All “harassment” is illegal  Entitlement to notice or pay in lieu on termination of employment is based only on length of service

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 4 Major risks in the hiring process  Unqualified candidates  Potential human rights pitfalls  Negligent misrepresentation

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 5 Pitfalls in employment contracts  If there is no written contract of employment – or written provision setting out entitlement to notice or pay in lieu on termination of employment – a term as to reasonable notice or pay in lieu will be implied  If you have a written contract or provision that is unenforceable, it will be considered void  If you have a written contract that does not protect the employer’s interests, it will not be useful

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 6 Managing performance issues  Without adequate performance management, productivity may suffer  Lack of performance management may also result in an inability to discharge for just cause  Over-management may result in a constructive dismissal, human rights or WorkSafeBC claim

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 7 Suspicious sick leave claims  Ask for a doctor’s certificate to substantiate the claim  Insist on a certificate that clearly speaks to present and future ability to work– including limitations and/or restrictions and prognosis (not diagnosis)  Offer accommodated, modified, light or transitional duties and be open to other accommodations (e.g. modified work space)  Investigate as necessary  Maintain communication

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 8 Avoiding constructive dismissal claims  Constructive dismissal results from unilateral, fundamental change or changes to the terms and conditions of employment  For example, a significant change to compensation or a demotion

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 9 “I Quit!” Is it really the end?  Subjective and objective elements  Context is relevant – and critical  Good faith and reasonableness  Wrongful dismissal damages may be awarded – and possibly also moral damages

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 10 Do you have just cause for discharge?  Conduct which is incompatible with the employee’s duties and goes to the root of employment relationship – the employment relationship cannot continue  Onus of proof is on the employer  Investigate promptly and document everything  Give warnings unless you are dealing with extreme misconduct

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 11 Costs of failure to accommodate  Where employee cannot work or has limited ability to work on account of disability, employer has a duty to accommodate unless it would cause undue hardship  Duty to inquire  Thoroughly investigate and document possible accommodations  Duty is met if business would be hampered excessively, if employee is still unable to work in spite of accommodations, or if he or she refuses to co-operate and causes process to founder

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 12 Employment standards FAQs  All employees covered – regardless of whether they are FT or PT, permanent or temporary, or on salary, hourly wage and/or commission  Records kept for all employees  Paydays at least twice a month  Unpaid leave for pregnancy and parental, family responsibility, compassionate care, bereavement and reservists’ leave and jury duty  Only statutory deductions from wages  Final wages within 48 hours if terminated, 6 days if quit

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3 | | 13 QUESTIONS? James D. Kondopulos (604)