Dealing with Difficult HR Issues
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This presentation deals with important HR issues including employee harassment issues, absenteeism and the duty to accomodoate, obligations of departing employee and the Canada Labour Code.
Dealing with Difficult HR Issues
- 2. Employee Harassment Issues Presenter: Joe Hunder Partner Labour and Employment 2
- 3. Introduction • Workplace and sexual harassment is unwanted and offensive behaviour. Both are unlawful. • Employers are under a duty to prevent workplace and sexual harassment and to respond appropriately. • Practical and legal consequences. 3
- 4. Recognizing Harassment A. What is “Workplace Harassment”? • Unwelcome conduct that is offensive in nature. • Elements of unwelcome conduct • Characteristics of “offensive in nature” • Could the behaviour reasonably offend, humiliate or intimidate the person to whom it is directed? • Examples 4
- 5. Recognizing Harassment B. Sexual Harassment • What is it? • Key Characteristics • Examples 5
- 6. Avoiding Harassment – Guidelines for Prevention • “R.A.P.” Test • “Loved One” Test • “Essential to Getting the Job Done” Test 6
- 7. Preventing and Responding to Workplace Harassment – Employer Duties A. Employer duties: • What they are? • A policy is the cornerstone of prevention and control of workplace harassment. 7
- 8. Preventing and Responding to Workplace Harassment – Employer Duties B. Harassment Policies: • Contents • Implementation and Enforcement • Provide copies • Ensure consistent application and adherence 8
- 9. Absenteeism and the Duty to Accommodate Presenter: Adrian Elmslie Partner Labour and Employment 9
- 11. Making sure the correct information is collected • Be clear about whose responsibility it is to keep track of or report employee absences. • Maintain written records. • Institute a call in policy for all unscheduled absences. • Make sure you find out why the employee is absent from work. • Use the Information 11
- 13. Types of Absenteeism Generally there are two categories of absenteeism: a) culpable absenteeism; and b) innocent absenteeism i) caused by transient ailments ii) caused by a disability 13
- 14. Culpable Absenteeism Absences within the employee’s control and for which there is no justifiable or reasonable excuse. Examples: • sleeping in • failure to arrange transportation • lateness or inability to work due to physical or mental conditions within the employee’s control • absences that are not supported by medical verification where requested or required 14
- 15. Innocent Absenteeism – Disability or Transient Ailment? Absences that are beyond the employee’s control. • Is the condition permanent or ongoing? (A temporary condition is not a disability unless it recurs as part of a medical condition). • Is the condition so serious that it restricts life’s important functions? • Is the condition common to the broader public? (e.g. the common cold, no matter how severe, is not a disability). 15
- 17. Culpable Absenteeism • Dealt with the same way as other types of misconduct. • Best way to ensure consistency and to avoid problems is to have a written attendance policy. • Attendance policy should include the following elements: – Statement of Attendance Expectations – Reporting Procedure – Medical Notes – Disciplinary Measures 17
- 18. Managing Innocent Absenteeism Transient Ailments • Focus on verifying that the reason for the absence is legitimate and assisting or encouraging the employee to correct the cause through counselling or other means. 18
- 19. Managing Innocent Absenteeism Disabilities • Duty not to discriminate under s.7 of the Human Rights Act • Duty to accommodate disabilities • Must accommodate to the point of “undue hardship” • Employees must cooperate in the accommodation process 19
- 21. Obligations of the Departing Employee Presenter: Cristina Wendel Associate Labour and Employment 21
- 22. Obligations of Departing Employees • Employee obligations at law • Contractual obligations • Remedies 22
- 23. What obligations does a departing employee owe to the employer? • Obligations arise from 3 basic sources 1) Common law duties 2) Fiduciary duties 3) Contractual duties 23
- 26. Duty of good faith and fidelity – what does it include? • Continuing obligations after employment has ended – Duty not to misappropriate confidential information 26
- 27. Duty of good faith and fidelity – what does it not include? • Generally does not prohibit solicitation of clients or employees after employment has ended • Generally does not prohibit competition – Exceptions: • While employed, cannot take preparatory steps to set up the competing business during working hours or on the employer’s premises • Cannot use confidential or proprietary information belonging to the former employer when competing 27
- 28. Duty to give reasonable notice of termination of employment • An employee is required to give its employer reasonable notice of his or her intention to resign • The employee is prohibited from competing with the employer during this period • Confirmed in the 2007 ABQB decision in Torcana Valve Services Inc. v Anderson 28
- 29. How much notice is required? • The period of notice required should correlate to the amount of time required by the employer to replace and train a new employee • Factors 29
- 30. Fiduciary Duties • Who is a fiduciary? • What additional obligations are owed by fiduciaries? • How long are those duties owed to the former employer? 30
- 31. Fiduciary Duties – who is bound? • Variety of tests set out in the case law • The determination is fact specific • Must look at the employee’s actual powers and responsibilities – job titles are not determinative • Usually there are 3 general characteristics to a fiduciary relationship: – The employee has the scope for the exercise of discretion or power – The employee can unilaterally exercise that discretion or power to affect the employer – The employer is vulnerable • “Key” or higher level employees 31
- 32. Fiduciary duties – what are the additional obligations? • Cannot take a maturing business opportunity from the employer either during or after the term of employment • Competition with the former employer after the term of employment in and of itself is not automatically a breach – BUT the right to compete is qualified ‐ the employee cannot actively solicit the former employer’s clients for a reasonable period of time. 32
- 34. Contractual Duties • Confidentiality agreements • Restrictive Covenants – Non‐solicitation – Non‐competition 34
- 35. Confidentiality Agreements • Useful to define and clarify what is considered confidential or proprietary information and clearly impose the restrictions on the use of that information 35
- 36. Restrictive Covenants • Key Case – Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC – Recognized the tension between the freedom to contract and the public policy on restraint of trade • Presumption that restrictive covenants will generally be unenforceable as being in restraint of trade • Exception – where the restrictive covenant is reasonable, it will be upheld – Confirmed the need for increased scrutiny for covenants arising in employment contracts as opposed to the sale of a business 36
- 37. What constitutes a reasonable restrictive covenant • Depends on the particular facts and circumstances • Basic factors for reasonableness: – Must protect a legitimate proprietary interest – Must be reasonable in terms of: • Time • Geographic area • Nature of activities prohibited – Terms must be clear, certain and not ambiguous – Must be reasonable with respect to the public interest 37
- 38. Drafting Restrictive Covenants • Notional severance • Courts will not rewrite ambiguous clauses to make them enforceable – Ambiguous clauses are considered unreasonable – Clauses with descending restrictions will not be enforced • “Blue line” or “blue pencil” severance – an offending part of a clause may be removed where that part is trivial and not part of the main substance 38
- 39. Remedies • Two main remedies available – Damages – Injunction 39
- 40. Damages • Intended to put the former employer back in the position it would have been in had the breach not occurred • Where the employee has competed in breach of his or her duties, the former employer has a choice for the measure of damages: – its lost profits; or – the profits gained by the former employee and the competing business 40
- 41. Injunction • Interlocutory – i.e. prior to trial • To restrain the former employee from continuing the breach • 3 part test: – Prima facie case – Irreparable harm – Balance of convenience favours the employer 41
- 42. Conclusion • Range of duties owed by departing employees • Remedies are damages and/or an injunction • Cases are generally very fact specific 42
- 43. Canada Labour Code Part III: Unjust Dismissal Complaints v. A Statement of Claim filed in the Courts Presenter: Colleen Verville Partner Labour and Employment 43
- 44. Canada Labour Code Part III: Unjust Dismissal Complaints v. A Statement of Claim filed in the Courts ‐ Who does the Canada Labour Code ‐ What is the nature of a wrongful apply to? dismissal claim? ‐ Who may file a Canada Labour ‐ Who can file a wrongful dismissal Code complaint? Statement of Claim in Alberta? 44
- 45. Canada Labour Code Part III: Unjust Dismissal Complaints v. A Statement of Claim filed in the Courts ‐ What is the cost to file an unjust ‐ What is the cost for filing a dismissal complaint? Statement of Claim? 45
- 46. Canada Labour Code Part III: Unjust Dismissal Complaints v. A Statement of Claim filed in the Courts ‐ What is the time limitation for filing ‐ What is the time limitation for filing an unjust dismissal complaint? a wrongful dismissal Statement of Claim? 46
- 47. Canada Labour Code Part III: Unjust Dismissal Complaints v. A Statement of Claim filed in the Courts ‐ What is the process to file an ‐ What is the process in the Courts? unjust dismissal complaint? 47
- 48. Canada Labour Code Part III: Unjust Dismissal Complaints v. A Statement of Claim filed in the Courts ‐ What are the powers of an ‐ What are the powers of the adjudicator? Courts? 48
- 49. Canada Labour Code Part III: Unjust Dismissal Complaints v. A Statement of Claim filed in the Courts ‐ Can the adjudicator’s decision be ‐ Can the Court’s decision be appealed? appealed? 49
- 50. How Unions Acquire the Legal Right to Represent Alberta Employees and Adopting a Union Free Philosophy Presenter: Fausto Franceschi Partner Labour and Employment 50
- 51. Certification Application • Alberta’s Labour Relations Code applies • To be certified, a union must convince the Board that – The applicant is a trade union – There is no legal impediment to the certification application – Groups of workers (bargaining unit) the union wishes to represent is appropriate for collective bargaining – 40% of the employees in the bargaining unit applied for support the union’s application • Majority of the employees (more than 50%) who vote in a secret ballot representation vote have selected union representation • Process happens quickly (usually 7 – 10 days from the date of application to vote) 51
- 52. A Typical Union Organizing Campaign • Employees may invite the union to organize their workplace or the union may proceed without an invitation • A union gauges depth of employee support • A union attempts to develop a cast of “inside organizers” • Obtaining employee support – union card or petition • What unions sell. What workers buy. – Higher wages – Better benefits, including pensions – Job security – Seniority rights – Protection from an employer’s arbitrary actions (grievances) – A bigger say in the workplace – A safer workplace – “Insurance” 52
- 53. A Typical Union Organizing Campaign • Some campaigns are covert operations and some are publicly announced • Signs of a covert operation – Odd employee behaviour • Talkative employees are suddenly silent • Employees huddling when not required to do so by their jobs • Avoidance of supervisors – Appearance of union literature • Pamphlets, stickers • Union success rate – Alberta: Unions win 81% of certification applications that go to a vote (131/162 between April 1, 2009 and October 28, 2010) 53
- 54. Employer Responses: Strategy • Unfair Labour Practices – What are they? – Legal and Practical Consequences • Role of supervisors (inside and outside of the campaign) • Intensity of Response – depends on each situation • Communication plan (lawful) is essential 54
- 55. Union Free Philosophy • Have a union free philosophy (be a “pro‐employee” organization) • Employees are unlikely to want third party union representation if they are working for you and feel valued – Fair wages and benefits – Invite employee feedback – Opinion polls – Open door policy (as opposed to a false open door policy) – Listen to employee concerns – Have an issue free workplace philosophy – Strive for high morale (get rid of jerks) – Leadership needs to have a presence with employees – Being union free is a process, therefore devote time to it – it will make you a better company, as well as keeping you union free 55
- 56. Questions?
- 57. Thank you for Joining Us Joe Hunder 780.423.7354 e: joe.hunder@fmc‐law.com Adrian Elmslie 780.423.7364 e: adrian.elmslie@fmc‐law.com Cristina Wendel 780.423.7353 e: cristina.wendel@fmc‐law.com Fausto Franceschi 780.423.7348 e: fausto.franceschi@fmc‐law.com Colleen Verville 780.423.7103 e: colleen.verville@fmc‐law.com