presented by: rochelle pauls

147
Presented by: Rochelle Pauls No Nonsense Manager or Bully? Respectful Workplace Issues

Upload: ohio

Post on 19-Feb-2016

37 views

Category:

Documents


0 download

DESCRIPTION

No Nonsense Manager or Bully? Respectful Workplace Issues. Presented by: Rochelle Pauls. Reasons to Deal with Workplace Bullying. Harassment is disrespectful, degrading and demoralizing Employees perform better in a harassment-free work environment Legal considerations: - PowerPoint PPT Presentation

TRANSCRIPT

Page 1: Presented by: Rochelle Pauls

Presented by: Rochelle Pauls

No Nonsense Manager or Bully?Respectful Workplace Issues

Page 2: Presented by: Rochelle Pauls
Page 3: Presented by: Rochelle Pauls

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

Page 4: Presented by: Rochelle Pauls

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

Page 5: Presented by: Rochelle Pauls

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

Page 6: Presented by: Rochelle Pauls

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

Page 7: Presented by: Rochelle Pauls

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

Page 8: Presented by: Rochelle Pauls

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

Page 9: Presented by: Rochelle Pauls

Bullying Bosses

Page 10: Presented by: Rochelle Pauls

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

Page 11: Presented by: Rochelle Pauls

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

Page 12: Presented by: Rochelle Pauls

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

Page 13: Presented by: Rochelle Pauls

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

Page 14: Presented by: Rochelle Pauls

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

Page 15: Presented by: Rochelle Pauls

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

Page 16: Presented by: Rochelle Pauls

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

Page 17: Presented by: Rochelle Pauls

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

Page 18: Presented by: Rochelle Pauls

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

Page 19: Presented by: Rochelle Pauls

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

Page 20: Presented by: Rochelle Pauls

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

Page 21: Presented by: Rochelle Pauls

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

Page 22: Presented by: Rochelle Pauls

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

Page 23: Presented by: Rochelle Pauls

Liability for Constructive Dismissal

Page 24: Presented by: Rochelle Pauls

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

Page 25: Presented by: Rochelle Pauls

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

Page 26: Presented by: Rochelle Pauls

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

Page 27: Presented by: Rochelle Pauls

Conclusions

• Prevention is the key• Conduct will sometimes be questionable –

not every inappropriate management decision will constitute bullying

• Awareness and communication are essential

Page 28: Presented by: Rochelle Pauls

What’s New in the Zoo? Labour & Arbitration Update

Presented by Taryn Mackie

Page 29: Presented by: Rochelle Pauls

What’s New at the Zoo?

• Drugs

• Privacy

• Drugs

• Privacy

Page 30: Presented by: Rochelle Pauls

Audience Poll…

Random Drug & Alcohol Testing

Page 31: Presented by: Rochelle Pauls

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

Page 32: Presented by: Rochelle Pauls

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

Page 33: Presented by: Rochelle Pauls

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

Page 34: Presented by: Rochelle Pauls

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

Page 35: Presented by: Rochelle Pauls

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

Page 36: Presented by: Rochelle Pauls

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

Page 37: Presented by: Rochelle Pauls

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

Page 38: Presented by: Rochelle Pauls

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…

Page 39: Presented by: Rochelle Pauls

You be the Judge…

Follow your nose?

Page 40: Presented by: Rochelle Pauls

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

Page 41: Presented by: Rochelle Pauls

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

Page 42: Presented by: Rochelle Pauls

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

Page 43: Presented by: Rochelle Pauls

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)

Page 44: Presented by: Rochelle Pauls

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

Page 45: Presented by: Rochelle Pauls

You need something more…

[Insert clip from 1:51 – 2:11]

http://www.youtube.com/watch?v=pTMRYbhPbZE

Page 46: Presented by: Rochelle Pauls

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

Page 47: Presented by: Rochelle Pauls

You be the Judge…

Union Access to Personal Information

Page 48: Presented by: Rochelle Pauls

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.

Page 49: Presented by: Rochelle Pauls

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

Page 50: Presented by: Rochelle Pauls

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

Page 51: Presented by: Rochelle Pauls

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

Page 52: Presented by: Rochelle Pauls

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

(1) Does the refusal interfere with the union’s capacity to represent the employees in the bargaining unit?

(2) If so, is there a sound business purpose that counterbalances that adverse impact on the union’s capacity?

Page 53: Presented by: Rochelle Pauls

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

Page 54: Presented by: Rochelle Pauls

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

Page 55: Presented by: Rochelle Pauls

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

Page 56: Presented by: Rochelle Pauls

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

Page 57: Presented by: Rochelle Pauls

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

Page 58: Presented by: Rochelle Pauls

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

Page 59: Presented by: Rochelle Pauls

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

Page 60: Presented by: Rochelle Pauls

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

Page 61: Presented by: Rochelle Pauls

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

Page 62: Presented by: Rochelle Pauls

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

Page 63: Presented by: Rochelle Pauls

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

Page 64: Presented by: Rochelle Pauls

ACCOMMODATION UPDATE & PERCEIVED DISABILITIES

Presented by: Moira Aikenhead

Page 65: Presented by: Rochelle Pauls

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.

Page 66: Presented by: Rochelle Pauls

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”.

Page 67: Presented by: Rochelle Pauls

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.

Page 68: Presented by: Rochelle Pauls

Cassidy, continued

• Always best practice to treat employees fairly when considering accommodation.

Page 69: Presented by: Rochelle Pauls

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

Page 70: Presented by: Rochelle Pauls

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).

Page 71: Presented by: Rochelle Pauls

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”

Page 72: Presented by: Rochelle Pauls

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”

Page 73: Presented by: Rochelle Pauls

Mowat, continued

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

Page 74: Presented by: Rochelle Pauls

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.

Page 75: Presented by: Rochelle Pauls

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.

Page 76: Presented by: Rochelle Pauls

Kerr

• Final case – SCENARIO:• What do you do?

a) WAIT b) SEEKc) TERMINATE

Page 77: Presented by: Rochelle Pauls

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.

Page 78: Presented by: Rochelle Pauls

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.

Page 79: Presented by: Rochelle Pauls

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.

Page 80: Presented by: Rochelle Pauls

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.

Page 81: Presented by: Rochelle Pauls

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.

Page 82: Presented by: Rochelle Pauls

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”.

Page 83: Presented by: Rochelle Pauls

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

Page 84: Presented by: Rochelle Pauls

Lessons for Employers, continued

• When you perceive decline in performance, INQUIRE.

• Seek medical evidence

Page 85: Presented by: Rochelle Pauls

USE IT, DON’T ABUSE IT

Use of Company Equipment in the Age of Technology – Presented by Ryan Berger

Page 86: Presented by: Rochelle Pauls

Use it, don’t abuse it

• Overview:• Management rights and obligations• Vehicles• Computers at work• Telephones• Laptops and mobile devices

Page 87: Presented by: Rochelle Pauls

Trying not to abuse it…

• Audience response system • Questions 1 – 6

Page 88: Presented by: Rochelle Pauls

Use of Equipment

• Right of employer to manage the workplace

• What / where is the workplace?

• Includes use of company equipment

Page 89: Presented by: Rochelle Pauls

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

Page 90: Presented by: Rochelle Pauls

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

Page 91: Presented by: Rochelle Pauls

Equipment - Vehicles

GPS and Telematics

• What information do you collect?• How are you using the information? • Is your use policy appropriate?

Page 92: Presented by: Rochelle Pauls

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?

Page 93: Presented by: Rochelle Pauls

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?

Page 94: Presented by: Rochelle Pauls

Laptops and Mobile Devices

• Location services• Probable over-collection of information• Regular monitoring without cause is probably

too invasive

• Is your use policy appropriate?

Page 95: Presented by: Rochelle Pauls

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…

Page 96: Presented by: Rochelle Pauls

Is posting on the Intranet enough? Policies and Training

Presented by: Herb Isherwood

Page 97: Presented by: Rochelle Pauls

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

Page 98: Presented by: Rochelle Pauls

Context

• Expectations & Need• “Polyone”• Need to tell employees not to steal?• Phone v. email + internet policies• May be a generational aspect to this

Page 99: Presented by: Rochelle Pauls

Context

• Duty of loyalty may not be obvious• Need to be more prescriptive – employees

expect it• “You ought to know better” isn’t enough

Page 100: Presented by: Rochelle Pauls

Context

• But we are also problematic seeing implementation practices

> door stops + paper weights> adhoc and incremental

• There is an opportunity to add value

Page 101: Presented by: Rochelle Pauls

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

Page 102: Presented by: Rochelle Pauls

Reason for a Policy

a. align valuesb. enhance reputationc. uniform and consistent decisionsd. enhance efficiencye. reduce risk of liability or loss• Effective and appropriate policies are

indicative of a well run organization> fortifies your credibility

Page 103: Presented by: Rochelle Pauls

Why?

• There are a number of reasons• Some policies may be needed for more than

one reason1. There is or could be confusion or

misunderstanding• dress code• email and internet use• off-duty behaviour• confidentiality• right to lay off

Page 104: Presented by: Rochelle Pauls

Why?

2. Specific guidance is needed • expense reimbursement (use of company

credit card)• employee discounts• control procedures• general employee conduct• absenteeism

Page 105: Presented by: Rochelle Pauls

Why?

3. Protect against or reduce or reduce liability• respectful workplace/non-discrimination• conflict of interest• overtime• commission and bonus policies• employee health • telecommute• safety

Page 106: Presented by: Rochelle Pauls

Why?

4. 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

Page 107: Presented by: Rochelle Pauls

Why?

5. Establish consistent work standards & rules• progressive discipline• leaves of absence / notification of absence• work process or procedure• break rules

6. Establish consistent and fair treatment• benefits rules & procedures

> sick leave

• posting rules• assessment process

Page 108: Presented by: Rochelle Pauls

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

Page 109: Presented by: Rochelle Pauls

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:

i. risk to organizationii. likelihood of occurrence + frequencyiii. how many employees impactediv. impact on reputation / stakeholders

• need to cover what is important to the organization

Page 110: Presented by: Rochelle Pauls

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

Page 111: Presented by: Rochelle Pauls

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

Page 112: Presented by: Rochelle Pauls

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

Page 113: Presented by: Rochelle Pauls

• get ideas from the internet> what are the issues?> but be critical and discriminating> won’t need some policies

i. visitorsii. working abroadiii. concealed weapons

> some will be specific to Canada and BC

Page 114: Presented by: Rochelle Pauls

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

Page 115: Presented by: Rochelle Pauls

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

Page 116: Presented by: Rochelle Pauls

Legal Review

• may need a legal review> policies with legal implication

i. privacyii. 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

Page 117: Presented by: Rochelle Pauls

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

Page 118: Presented by: Rochelle Pauls

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

Page 119: Presented by: Rochelle Pauls

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

Page 120: Presented by: Rochelle Pauls

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

Page 121: Presented by: Rochelle Pauls

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

Page 122: Presented by: Rochelle Pauls

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!

Page 123: Presented by: Rochelle Pauls

L&E Issues in 140 Characters or Less

Presented By: Andrew Schafer

Page 124: Presented by: Rochelle Pauls

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

Page 125: Presented by: Rochelle Pauls

This Presentation

• Resignation• Restrictive Covenants• After Acquired Cause• Dress Codes

Page 126: Presented by: Rochelle Pauls

Resignation

• Employees who resign are not entitled to reasonable notice

• Simple then, right?

Page 127: Presented by: Rochelle Pauls

Resignation

• WRONG

• In order to be effective, resignation must be voluntary

• Subjective and objective component

Page 128: Presented by: Rochelle Pauls

Resignation

• Be careful of heat of the moment resignations

Page 129: Presented by: Rochelle Pauls

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

Page 130: Presented by: Rochelle Pauls

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

Page 131: Presented by: Rochelle Pauls

Restrictive Covenants

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

Page 132: Presented by: Rochelle Pauls

Restrictive Covenants

• Not enforceable unless reasonable• High standard • Types

• Non-Compete• Non-Solicit• No Dealing

Page 133: Presented by: Rochelle Pauls

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

Page 134: Presented by: Rochelle Pauls

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

Page 135: Presented by: Rochelle Pauls

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?

.

Page 136: Presented by: Rochelle Pauls

After Acquired Cause

• Can be a full defence to a wrongful dismissal claim

Page 137: Presented by: Rochelle Pauls

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

Page 138: Presented by: Rochelle Pauls

Dress Codes

Page 139: Presented by: Rochelle Pauls

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

Page 140: Presented by: Rochelle Pauls

Dress Codes

• Considering human rights considerations• Recent example: rule prohibiting hiking

boots in gym

Page 141: Presented by: Rochelle Pauls

Termination Clauses

• Limit reasonable notice owed upon dismissal

Page 142: Presented by: Rochelle Pauls

Termination Clauses

• Cannot contract out of ESA minimums

• Must be clear

• Should be in employment agreement

• Consideration needed to impose new termination provision

Page 143: Presented by: Rochelle Pauls

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

Page 144: Presented by: Rochelle Pauls

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?

Page 145: Presented by: Rochelle Pauls

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

Page 146: Presented by: Rochelle Pauls

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

Page 147: Presented by: Rochelle Pauls

Deducting Benefit andPension 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