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in reply to: Answer for Termination Pay – Alberta #87000
The answer, I’m sorry to say, is yes.
The long standing rule is that employees have “common law” notice rights in addition to their ESC termination rights upon without cause termination UNLESS the contract specifically and unambiguously limits them to ESC rights. That’s why many employers insert contract clauses specifically saying that employees have no other rights for without cause termination except those provided under the [in your case] Alberta ESC. Over the years, there’s been a lot of litigation on whether these clauses are enforceable, with court seizing on even the slightest of ambiguities to rule in the employee’s favour.
HRI reports on these cases regularly and I believe even listed a case or 2 from Alberta as among our Top 10 HR Cases of 2018. Hope this helps.First and foremost, I can offer you a personal opinion BUT NOT LEGAL COUNSEL. This sounds like the kind of situation that requires talking to a lawyer.
Having said that, I can suggest that you get a complete medical assessment of the employee’s capabilities and needs. Now that the accommodations process has been engaged, an informal doctor’s note isn’t enough. I’m assuming the employee isn’t in a union; but if that’s wrong, you need to get the union involved in the accommodations process.
Once you assess the employee’s assessments and needs, determine what, if anything, you can offer that’s suitable. Keep in mind that the accommodations process is bilateral. Your responsibility isn’t necessarily to make final decisions but to negotiate with the employee and his representatives. Work together to find a solution.
If the employee refuses to provide the needed medical information or cooperate in the accommodations process, you likely have ground to terminate–at that point, accommodations go from reasonable to undue hardship. But you need to document this very clearly and precisely. Another caveat is that there may be other facts or circumstances affecting the situation that I don’t know about. For all these reasons, TALK TO A LAWYER. Hope that helps and happy holidays. GlennIt’s not only appropriate but highly advisable, provided that there’s nothing in the collective agreement barring it. What you may also have to do–or may want to do–is allow the employee to review a written description of the warning with a union rep. Hope that helps. Glenn
Under Sec. 211 of the Alberta OHS Code, once worker report what they believe to be work related symptoms of musculoskeletal injuries (MSIs)–as your workers have done–the employer must promptly:
* Review the activities of that worker, and of other workers doing similar tasks, to identify work-related causes of the symptoms, if any; and
* Take corrective measures to avoid further injuries if the causes of the symptoms are work related.
Let’s relate this to your situation. First, you need to do an MSI hazard assessment that includes work station set up (along with other MSI risk factors, e.g., task duration, stress, repetition, etc.). One note from a doctor doesn’t prove your set up is causing MSIs. But it is enuf to trigger your obligation to have a consultant or other competent person do the assessment.
As for corrective measures, ergonomic training is a start but it’s not enuf. You also need to consider what are called “reasonably practicable” engineering controls including reconfiguration of work space and providing ergonomically friendly furniture and equipment. If such controls are “reasonably practicable,” you must provide them at your own expense. If they’re not reasonably practicable, you can use alternative measures–called administrative/work controls–as long as they’re equally effective in preventing MRI risks.
Bottom Line: Sounds like you need to get a consultant to do an MSI assessment and take measures to fix the problems he/she finds. Based on what u say, I have a strong hunch that those measures will include work space reconfiguration and ergonomic furniture. Hope that helps. Glenn. glennd@bongarde.comThanks for your replies Glen and Allen. I will consult a lawyer but you have given me some good different perspectives to take into consideration.
in reply to: Answer for Company files #86995The answer is probably yes but it’s hard to say for sure without knowing the facts and situation.
More importantly, the fact that you’re asking me this Q suggests that you don’t have a lawyer representing you in this matter. If I’m right, I strongly urge you to get a lawyer given the liability risks of wrongful dismissal, which include not just termination notice and other ESA benefits but also the possibility of damages if you CAN’T show just cause. And if you DO have a lawyer, he/she should decide which dox to disclose as part of the “discovery,” i.e., evidence gathering process of the litigation.
Hope that helps and good luck with the case. Glennin reply to: Answer for STAT Holiday Alberta – Deferring #86994Yes you can. And the Xmas day off arrangement would work just fine. Hope that helps and sorry you had to wait a whole 4 days for such a simple answer. Glenn
Serena: My colleague, Alan, has a slightly different take. Here’s his reply:
I’d argue against making this a separate contract, i.e. a separate employment. This might make it look like she has not returned from her maternity leave, i.e. quit which will affect her ability to claim EI in the future. However, there does need to be a written agreement that clearly indicates the failure to return to her existing position was at the employee’s request and that what she is asking for is a phased return to her old position. I’d rather emphasize that this is a bridge between the leave and her return, rather than a standalone new employment contract.
And I don’t see that a change in position or title necessarily leads to a new employment contract. It might mean a change in the terms and conditions of employment, but not a separate period of employment. If you treat the phased return as its own period of employment, then there will have to be another when the person finally does return to her old duties.
But your advice to consult a knowledgeable lawyer is also good.
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Glenn again: Hope this helps and do talk to a lawyer before deciding what to do.in reply to: Answer for Construction worker #86992If the gist of what you’re asking is whether CPAs and other white collar and office workers of construction companies are protected by the OHS Act, the answer is theoretically yes but practically not really. Here’s why.
First of all, the OHS Act/Regs. use the term “worker,” not “employee.” “Worker” means any “person who supplies services for monetary compensation”. This definition is broad enough to include individuals who work at the site that are employed by other companies, e.g., contractors, subcontractors, etc.
The term “construction” is also very broad, covering not just what you normally think of as construction sites but construction WORK (erection, alteration, repair, dismantling, demolition, structural maintenance, painting, land clearing, earth moving, grading, excavating, trenching, digging, boring, drilling, blasting, or concreting, the installation of any machinery or plant, and any work or undertaking in connection with a project”) REGARDLESS OF THE TYPE OF SITE where it’s done. Thus, for example, building a storage shed is subject to construction regulations even if it’s carried out at a factory, warehouse, hospital, etc.
But while CPAs are protected in theory, the law has little to no relevance to them as a practical matter. RULE: You need only train and protect workers, whether construction, mining, oil and gas, etc., in the hazards of their jobs. And because CPAs aren’t exposed to the hazards or engaged in the operations the OHS laws cover, they’re not within the scope of the OHS laws. Thus, for example, CPAs don’t need confined spaces training because they typically don’t enter confined spaces; they don’t need vertical fall protection because they don’t work at heights 3 metres or more above the ground, etc.
Hope that helps and I’ve misread your Q, please let me know and I’ll give it another shot. Glennin reply to: Answer for Delayed testing #86991Almost certainly. The only possible exception would be where the drug testing policy specifically allows for employees to do their own testing. But that’s a highly unlikely scenario given the importance of employers’ controlling the testing to ensure a fair and honest result. The other problem, of course, is the timing and the fact that even if the testing was carried out properly and fairly, the negative result doesn’t show the employee was clean at the time of the reasonable suspicion justifying the testing.
The one thing you DO have to watch out for, however, is that you really did have reasonable suspicion justifying the test and took the necessary measures to initiate testing in accordance with the testing agreement. If so, you may have grounds to discipline the employee for refusing to submit to testing at the time. Hope that helps. GlennFor as long as the employment lasts. The disciplinary record is crucial documentation that you’ll need to rely on to defend the action and/or justify further discipline under a progressive discipline policy. POSSIBLE EXCEPTION: .Make sure the collective agreement doesn’t require you to get rid of the disciplinary files after a pre-determined period. This is a common provision that unions negotiate for so as to render an employee’s slate clean after a specific amount of time.
Last but not least, keep the records for at least 12 months after the employment ends, i.e., the statute of limitations for bringing an employment standards claim (under Sec. 2-89 of the Sask Employment Act).
Good Q and I hope I did a good job answering it. GlennLike all other jurisdictions, Manitoba (ESC Sec. 60(2)) requires you to reinstate an employee after maternity leave at the same or equivalent position with at least equal salary and benefits. But Sec. 60(3) makes an exception for lay off, termination or failure to reinstate “for reasons unrelated to the leave.” Accordingly, I think you do have to extinguish rather than amend the current agreement.
Although you need to talk to a lawyer, I’d suggest you negotiate a new employment contract that starts with recitals stating the situation, “WHEREAS, employee wants to return….” and makes it clear that this is a new employment agreement and not a continuation of the prior one. Be ultra careful not to purport to have the employee waive her ESC reinstatement rights since that’s illegal. To totally eliminate the risk that the new deal may be interpreted as an attempt to evade your ESC reinstatement obligations, you might want to pay the pre-leave wage for at least part of the 6 months. That’s something you need to talk to your lawyer about.
I’m also going to ask our payroll expert, Alan McEwen to weigh in on this. Alan: What do u think?I’m sorry, can you explain what you mean by “HR communication plan/layout”‘ Do you mean an actual architectural blueprint’ Or a moving plan for relocating the HR operation’ Here’s what I was able to find. I hope it’s what you wanted. Glenn
HR Moving Checklists and other Materials: http://hughesmarino.com/resources/business-move-checklist/ https://www.helpmovingoffice.co.uk/resource/hr-guide-to-moving-office http://inordertosucceed.com/wp-content/uploads/2009/09/business-moving-checklist.pdf https://synup.com/business-relocation-checklist/ https://www.movingmasters.com/blog/checklist-for-planning-corporate-office-moves-moving-masters/
HR Plan/Layout examples and templates: https://www.utdallas.edu/oit/files/UTD-Human-Resource-Plan-Template.doc https://humanresources.ku.edu/sites/humanresources.drupal.ku.edu/files/docs/2016-2017_KU_HRM_Strategic_Plan.pdf http://www.dfo-mpo.gc.ca/Library/344817.pdf https://winnipeg.ca/corp/document_library/HRSP%20Condensed%20-%20Final.pdfin reply to: Answer for Employee Handbook Contents – Alberta #86987Nope. Neither the ESC nor Labour Relations Act (for unionized workplaces) say anything about handbooks or what they should contain. Such standards as exist would come not from legislation but best practices. IMHO, a good handbook should cover 2 basic areas: terms of employment and workplace conduct.
Terms of Employment would include Payment of Wages, Source Deductions, Work Scheduling, Hours of Work, Minimum Wage, Overtime, Call-in Pay, Stat Holiday Pay, Vacations, Leaves of Absence, Termination, Pay Equity, Other Benefits
Code of Conduct should address Attendance & Absenteeism, Drugs & Alcohol, Fitness for Duty, Equal Opportunity & Non-Discrimination, Anti-Bullying & Harassment, Workplace Violence, Conflict of Interest, Computer & Internet Use, Confidential & Proprietary Info, Personal Privacy, Data Security, Gifts & Entertainment, Workplace Romance, Dress Code, Off-Duty Conduct, Smoke-Free Workplace, Accommodations, EAP, Disciplinary Procedures
Hope that helps. Glennin reply to: Answer for Alberta #86986I sympathize. It’s so much harder to get good salary info in Canada than in US. Here are a few suggestions:
PayScale: https://www.payscale.com/research/CA/Job=Food_and_Beverage_Manager/Salary (Canada)
https://www.payscale.com/research/CA/Job=Food_and_Beverage_Manager/City# (Regional but doesn’t include Calgary–does include Edmonton)
Alberta govt, https://alis.alberta.ca/occinfo/occupations-in-alberta/ (salaries by occupation)
Alberta Hotel & Lodging Assoc, https://www.ahla.ca/
Indeed.com https://ca.indeed.com/jobs’q=Food+Beverage+Manager&l=Calgary%2C+AB (Job listings–check salary ranges at left)
If these sources don’t work, we can set up an HRI online survey asking our users where they go for their salary info. Let me know at glennd@bongarde.com Good luck. Hope that helps. -
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